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ARTICLE CONTENTS

 * Abstract
 * 1 Introduction
 * 2 Conceptualizing International Law Reform
 * 3 The 2021 OECD Recommendations on Settlements as a Prima Facie Case of
   Reform
 * 4 Conclusion
 * Footnotes


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Journal Article


THE CONCEPT OF INTERNATIONAL LAW REFORM AND THE CASE OF NEGOTIATED SETTLEMENTS
IN FOREIGN BRIBERY MATTERS

Radha Ivory
Radha Ivory
Associate Professor, TC Beirne School of Law, University of Queensland
,
Brisbane
,
Australia
Email: r.ivory@law.uq.edu.au
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European Journal of International Law, chae059,
https://doi.org/10.1093/ejil/chae059
Published:
21 December 2024

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ABSTRACT

The concept of reform is present in its absence in the literature on
international law-making and legal theory. The international legal system is
subject to pressures for change. Its actors respond to those pressures with
projects for legal improvement. Scholars comment on those malfunctions and
attempted fixes, some elaborating general frameworks for appraisal, others
conceiving of transnational law-making processes and yet others deconstructing
the very discourse of international legal progress. However, as a group,
international lawyers have baulked at the concept of reform. That aversion has
been attributed to our discipline’s defensive posture and the international
legal system’s lack of machinery for efficiently replacing outdated principles
and rules. ‘Reform’ implies an admission of deficit and an orderly and
authoritative change process that would not seem to be in keeping with typical
pathways of legal change beyond the state. This article seeks to reverse that
trend by proposing a two-part concept of international law reform. The
procedural part of this concept enables legal scholars to discern and describe
instances of quasi-legislative change in the international legal space. The
substantive part prompts them to select and apply criteria for assessing the
merits of a particular textual change or proposal. The resultant concept of
international law reform is necessary, I argue, in a legal system that lacks
centralized legislative processes and comprehensive rules for demarcating and
legitimating authoritative normative developments. Through a detailed case study
from international anti-corruption law, the article shows how international law
reform is an essential framework for analysis.

Issue Section:
Article


1 INTRODUCTION

The concept of reform has an uncertain place within the scholarship on
international law-making and legal theory. On the one hand, international law is
a notoriously utopian discipline, whose claims to validity rest partly on
arguments that it reflects the higher principles of a liberal world order. On
this view, states should use the tools of positive law to seek universal
justice, progress and peace.1 This reformist impulse is reflected in the
codification movement from the time of Jeremy Bentham to the establishment of
the United Nations (UN)2 and in the more recent scholarship on ‘soft’ and
‘informal’ international law-making (soft/in-law).3 The twin processes of
fragmentation and informalization have also spawned academic calls for change in
the form, inter alia, of the global constitutionalist movement.4 On the other
hand, the very idea of reform has long been regarded as inappropriate for the
international legal system, which lacks the types of institutions that
orchestrate legislative processes within states.5 The International Law
Commission (ILC) approximates some of the functions of a domestic law reform
agency,6 for example, but without a mandate for ‘revision’.7 In the 1980s and
1990s, moreover, international legal scholarship witnessed empirical and
critical turns. The former trend favours the social scientific mapping of
international law’s effects in particular national jurisdictions;8 the latter
seeks to identify the indeterminacies and biases of an international law based
on liberalism.9 In both branches of the discipline, legal texts are but one
variable in the ongoing practice of regulation. Teleology is ostensibly absent;
value judgements are exposed or eschewed.10

The disciplinary ambivalence to reformist talk contrasts with the apparent need
for legal problem-solving in contemporary international relations. Some warn
that the institution of liberal international law and order may be under threat
from waning US power, rising authoritarianism and anti-global populism.11 A
lesser claim is that new political frictions, socio-economic divides and
technological and environmental hazards are challenging existing approaches to
international coordination and demanding (radically) new ones.12 It would appear
that at least some international institutions are seeking to uplift their legal
standards and processes in response. Examples include the World Health
Organization through its work to broker a treaty on pandemics,13 the World Trade
Organization through its members’ attempts to circumvent the Appellate Body
impasse14 and the Organisation for Economic Co-operation and Development (OECD)
with its revised recommendations on foreign bribery control.15

Against this background, this article asks: how should scholars study the
efforts of international bodies to intentionally improve the norms they
administer through new or revised legal texts? It proposes ‘international law
reform’ as a framework for identifying, describing and appraising such legal
change initiatives. The first part of that concept is about problems and
processes – namely, structured attempts by competent actors to improve the legal
status quo. The second part is about outcomes and improvements. The reform
process must yield changes to legal texts that are likely, at least, to change
international law for the better. Both ‘outcome’ and ‘improvement’ are narrowing
conditions. However, as reflects the diversity of views on the content of the
international legal system, those instruments may be hard, soft or otherwise
informal, and the concept of improvement is open-ended. Researchers may apply
any relevant empirical or normative measure for success and assess improvement
from any methodological perspective at any place and point in international
legal history.

Understanding international law reform in this way, I argue, enhances the
ability of international legal scholars to perceive, describe and assess
intentional legal change initiatives in the international legal space. All legal
systems require a language for discerning, depicting and evaluating moments of
putative normative improvement. This is also true of the international legal
system, even though it lacks general rules for enacting legislation and
comprehensive standards for assessing the validity of legislative acts. Indeed,
the absence of such secondary rules in the international legal order, and the
complexity of the controversies it mediates, makes a concept of international
law reform more important. While the existing scholarship contains the building
blocks for that concept, it has not arranged those components in a way that
serves that analytical end.

I pursue this argument in the next three sections of the article. Section 2
develops a concept of ‘international law reform’ from the literature on domestic
law reform, international legal change and legal theory. Section 3 shows the
value of that concept by applying it to the case of new OECD recommendations on
negotiated settlements in foreign bribery cases. Section 4 summarizes and looks
ahead, sketching the avenues for research and engagement that are facilitated by
the concept of international law reform.


2 CONCEPTUALIZING INTERNATIONAL LAW REFORM

What is law reform, and what counts as a legal reform beyond the state? The
first section of this article develops a concept of international law reform by
reference to the literature on domestic law reform, international law-making and
legal theory. Through a selective review of this scholarship, it lands on
criteria for identifying and describing putative reform efforts in the
international space and enabling their evaluation.


A DOMESTIC LAW REFORM CONCEPTS

Reform is a deceptively simple concept for domestic lawyers and legal academics.
A core function of the rational bureaucratic state is the reasoned improvement
of malfunctioning legislative and judicial precepts on an ongoing basis.
Sometimes those activities are channelled through special purpose government law
reform agencies or non- or quasi-governmental equivalents; more often, they are
the everyday work of legislatures, administrators and courts.16 Much legal
writing claims to be about reform or presupposes a reformist project in that it
identifies dysfunctions with the legal rules or institutions and proposes
solutions.17 These problems may have been present in the standards that were
created or they may have developed as the societies, their values and their
technologies changed. Either way, reformist writing perceives a gap between
existing legal frameworks and current social conditions; it ventures a
response.18 In general, this literature does not elaborate on the notion of
beneficial legislative intervention that supports those general claims.19
Rather, it assumes the common usage of ‘reform’ as ‘[t]he action or process of
making changes in an institution, organization, or aspect of social or political
life, so as to remove errors, abuses, or other hindrances to proper performance’
as well as ‘[a] particular instance of this action or process; an act bringing
about change of this kind; an improvement made or proposed’.20

Those general understandings embed at least three potential concepts of reform.
The first is a change in law that results from a structured attempt at legal
improvement.21 This concept envisages that a competent (collective) actor has
perceived a problem with the existing legal norms and followed a reform process
to propose or adopt new rules or principles that are intended to improve on the
legal status quo.22 It is a formalist concept in that it focuses on the
official, governmental machinery of legal change. The second concept is
sociological (or legal realist) in that it presents law reform as a type of
social activity through which legal norms and associated practices are modified
for the good, as judged from the perspective of participants in the process.
This view of law reform merges into a third pluralistic concept by which law
reform encompasses all processes – intentional or unintentional, formal or
informal – that reorder legally relevant behaviour.23 In the latter two
concepts, official reformers, procedures and texts may help reshape the
governance of new social, technological or environmental conditions, but they
are only one such mechanism of change ‘for the better’, however it is
understood.


B READING THE INTERNATIONAL CODIFICATION LITERATURE THROUGH A REFORMIST LENS

Understood in this way, law reform is a ‘familiar stranger’ in international
legal scholarship. At the turn of the millennium, Robert Jennings described a
disciplinary silence on the topic of reform, which he attributed to the
defensive posture of international lawyers and the lack of machinery for
efficiently replacing outdated international principles and rules.24 Antonio
Cassese echoed these concerns a little over a decade later,25 as did Nico Krisch
almost 10 years after him.26 Still more recently, Asif Qureshi has called for a
holistic analysis of domestic and international processes of codification and
progressive development.27 Neither he nor the earlier writers conceptualizes
international law reform as such; therefore, none provides a method for
identifying, describing and evaluating those outcomes or practices. Yet, as most
of them observe, the international legal system is subject to the same pressures
for change, as well as statis, as domestic legal orders.28 It also has channels
(pathways) for development, which feature in the international law-making and
legal theory literature.29

A review of this literature starts with the academic-cum-social movement to
codify international law. Between the late 18th and mid-20th centuries, the term
‘codification’ was associated with a range of calls to change the form – and the
content – of international customs.30 Those calls were reflected in the first
part of the 20th century in the establishment of the League of Nations and the
UN. Superficially, the ILC has much in common with (Commonwealth) law reform
bodies, with its expert commissioners, draft treaties and commentaries.31
However, its notions of codification and progressive development were, and are,
subject to contention. At one extreme, Hersch Lauterpacht defined codification
as the process of ‘bringing about an agreed body of rules’ within the
international order.32 Along with Jennings, he argued that the codification
process would improve international law by enshrining unwritten customs in
treaty form and by generating new legal understandings of state obligations.33
So contrived, codification was a technique to both express and expand the lex
lata to enhance its claim to legality and its capacity to ensure peace through
legal order.34 Codification, in this broad sense, encompassed and eclipsed the
notion of progressive development.35 In my language, it was akin to law reform,
understood both as a formal and social activity.

Others, by contrast, advanced a narrow concept of codification as the process of
creating treaties that would present existing customary rules in a manner that
was more precise and systematic. James Brierly, citing Cecil Hurst,36 appeared
to accept that codification-qua-restatement could enhance the logical coherence
of international legal obligations and thereby improve their functioning.37 He
even acknowledged that this form of codification was desirable in a legal system
that had few organic processes for change.38 However, he opposed more ambitious
concepts and mechanisms of international codification on the basis that lawyers
were ill-equipped to resolve underlying disputes about policy.39 On his view,
codification would involve some ‘gap filling’ but was distinct from ‘progressive
development’, quite less ‘reform’.40 It was a ‘scientific exercise’.41 Yet other
early to mid-20th-century sceptics feared that codification would ‘interfere
with the so-called organic growth of the law through usage into custom’,
generate new conflicts and exacerbate the ‘hair-splitting tendency’ among
lawyers.42 For them, if broadly pursued, codification would not be a reform but,
rather, a regression.


C CODIFICATION DEBATES APPLIED TO SOFT AND INFORMAL INTERNATIONAL SOURCES

The ILC’s ‘for convenience’ definitions of codification and progressive
development did not resolve arguments about the value of intentionally seeking
to improve international law through agreements to clarify or gradually change
custom.43 Nor are those arguments mere historical artefacts, rendered irrelevant
by moves away from treaties in international relations and away from formalism
in international legal scholarship.44 For one thing, the ILC has continued with
its efforts to both codify and progressively develop international law, while
also publishing non-binding but influential statements about the content of its
existing agreements and associated customary rules.45 For another, the
fragmentation and informalization of international law have created more types
of law-style rules and more sites of law-making-style activity.46 Defined as
‘soft law’, the norms are not intended to be legally binding;47 defined as
‘in-law’, the outputs, processes and/or actors do not conform with traditional
international legal formalities.48 These new regulatory modes are relevant to
this article in two ways. First, soft/in-law norms affect the conduct of states,
international organizations and other non-state actors. In this way, soft or
informal norms may have the type of normative salience that makes them
appropriate for law reform analysis.49 Second, soft/in-law debates recall
earlier controversies about codifying customary international law. These
commonalities signal that there are recurrent issues with intentional efforts to
improve international law, even if the sites and forms of law-making have
shifted.

According to their defenders, soft instruments and informal processes have the
potential to count as instances or acts of reform. These instruments and
processes may not generate ‘law’ in the ‘hard’ sense of Article 38(1) of the
Statute of the International Court of Justice, nor may they be intended to
normatively order behaviour in anything more than a specific issue area
(sub-regime).50 However, informal processes may result in written rules, which
are designed to change how social or technical problems are dealt with across
multiple states. Moreover, the very qualities of ambiguity and informality may
make soft/in-law preferable when compared to traditional modes of regulation:
broad principles or standards may accommodate more diverse modes of
implementation; informal processes may allow for more expert input; and
open-ended outputs may enable adaption in response to future developments as
well as long-term changes to actor preferences.51 In all these ways, soft laws
and informal processes may yield ‘legal’ rules that are (or are perceived to be)
rightful sources of obligation that achieve their intended policy goals.52

So described, soft or informal law-making processes may enable the ongoing
adaptation of international legal norms, much in the same way that Lauterpacht
hoped formal codification initiatives would foster convergent legal
understandings among states. For critics of soft/in-law, however, these labels
are misnomers, which hide the binary nature of legal obligations53 and the
inappropriate use of non-binding norms to protect important legal interests.54
Gains in effectiveness may come at the cost of approval procedures in
participating states and the interests of affected others.55 Such deficits in
accountability may diminish the practical benefits of soft/in-law and its value
in light of norms associated with liberal democracy and the rule of law. These
objections share some common ground with Brierly’s concerns that legal ‘experts’
were ill-equipped to resolve the political divisions that stood in the way of
more ambitious efforts at codification.

Finally, from a critical perspective, soft/in-law regimes may be characterized
as opaque and subtly obligatory technologies of power. These regulatory forms
seek to activate subjects to participate in the governance of self and other but
do so within a neo-liberal regulatory paradigm that valorizes individual
choice.56 The apparent voluntarism of soft/in-law norms may hide the extent of a
regulatory change or, conversely, a failure to progress pro-social goals.


D LAW REFORM THROUGH A CONSTITUTIONALIST TO CRITICAL LENS

The literature on soft/in-law is associated with three further sets of scholarly
projects that engage, in various ways, with the possibilities of meaningful
change in fragmented, informal and decentred legal environments. Normative,
sociological and critical, these projects implicitly concern processes of reform
or reformist agendas. Variously, they attempt to supplement, document and
critique attempts to manage global problems with legal norms that cross borders.

The first is united by a concern to bring domestic (Western) public law
principles to bear on increasingly global processes of governance.57 These
processes are perceived to suffer various weaknesses of legitimacy and
effectiveness, not least the perception that the available domestic and
international mechanisms of control are inadequate to protect the important
individual interests that may be at stake. Into this breach, global
constitutionalists advance the claim (to quote Anne Peters) ‘that [certain]
principles, institutions, and mechanisms can and should be used as parameters to
inspire strategies for the improvement of the legitimacy of an international
legal order and institutions’.58 These ‘principles, institutions, and
mechanisms’ are the ones typically associated with the liberal democratic state
– that is, ‘the rule of law, a separation of powers, fundamental rights
protection, democracy and solidarity’.59 Global constitutionalists thus share
some common cause with the international rule of law, good governance and global
administrative law research/policy programmes.60

Second, reform is an implicit subject of inquiry within the scholarship on
transnational legal ordering. Claiming a linage to American legal realists, the
New Haven School and compliance studies in international relations, Harold Koh
announced the Transnational Legal Process Movement as an attempt to understand
the social interactions that ‘make interpret, enforce, and ultimately,
internalize rules of transnational law’.61 Latterly, Terence Halliday and
Gregory Shaffer have extended Koh’s concept by extensively theorizing
‘transnational legal orders’ (TLOs). These orders they define as ‘collection[s]
of formalized legal norms and associated organizations and actors that
authoritatively order the understanding and practice of law across national
jurisdictions’.62 TLO scholars do not seek to evaluate the resulting legal
orders, although the character (‘legitimacy, clarity, and coherence’) of
transnational rules or processes can affect their pull towards compliance.63
Nonetheless, TLO studies contribute to understandings of law reform in that they
seek to map the conditions for the settlement (or failure) of new legal orders
within and among states in a way that draws attention to the recursivity of
those interactions.64

Third, the possibility of meaningful reform is a point of contention among
critical legal scholars, who seek to show the indeterminacies and biases of
liberal international law.65 Some critical scholars have defended the
emancipatory potential of international law as a discipline and a practice66
and, in that sense, the possibility of reform. Others have argued that
international policy-makers could be encouraged to reflect on the political
basis and normative implications of particular decisions.67 But, from another
critical position, the possibility of law reform is constrained by the power
relations that structure international legal discourse. Many would-be reform
efforts turn out to be conservative projects, which use minor adjustments to
ensure the continued legitimacy of the system in its totality.68 More
fundamentally, the critical position leads to the conclusion that ‘reform’ is an
illusory construct, given the difficulties of identifying objective benchmarks
with which to plan or assess would-be improvements.69


E UNCOVERING ‘INTERNATIONAL LAW REFORM’

This review suggests that the topic of reform has been hidden in plain sight
within the international legal literature. Reform was a disputed object of the
international codification movement as it coalesced around the establishment of
the ILC. Latterly, academics have debated the use of soft/in-law to manage
coordination problems; these scholars have incorporated and embellished
arguments around codification without considering themselves as contributing to
that old debate or discussing reform per se. The increasing informality of
international law-making processes has then prompted calls to strengthen the
(secondary) rules of international law along liberal constitutional lines. The
transnational socio-legal scholarship eschews such demands for change but often
has reform efforts as its object since it maps the social processes by which
behaviour is legally ordered across national frontiers. Critical legal scholars
question the possibility of ‘real’ improvement given the structures of the
international legal system and its processes of reasoning.

Bringing the background to the foreground, this article proposes a new two-step
concept of ‘international law reform’. It conceives of international law reform
as (i) an intentional change process among international actors that seeks to
address a perceived problem with existing international legal norms, (ii) the
outcomes of which change, or are likely to change, those norms for the better.70
The two parts of the definition are cumulative: the first part provides criteria
for identifying international law reform processes; if its conditions are met,
the second part provides a method for gauging whether the outcomes of that
process have yielded, or will yield, improvement. Defined in this way,
‘international law reform’ adds to existing discussions of international
law-making and legal theory by focusing attention on efforts at (attempted or
putative) change and enabling those initiatives to be described and evaluated
against chosen external criteria. The two parts of the concept are further
specified and linked to the existing literature, as follows.

1 THE CONCEPT OF INTERNATIONAL LAW REFORM: PART 1

The first part of the concept of international law reform involves actors,
problems and processes. Borrowing from mainstream notions of domestic law
reform, codification and progressive development, as described in section 2.B,
it supposes actors who have the competence to regulate within an extant area of
international law. Because global problems are often approached as coordination
issues, these actors are likely to be collectives of some sort. However, in
keeping with the notions of soft/in-law discussed above, this body need not have
international legal personality, it need not be an international organization
and it need not consist of states. What matters is the body’s de facto or de
jure competence (authority) to create and change relevant legal norms, as
expressed in textual form.71

In addition, the first part of the definition assumes that the competent actor
(body) has identified a difficulty with a current set of legal norms. There is
no requirement that the problem have a certain form, seriousness or empirical
‘reality’. What matters is that the actor (or, more likely, its organs or
agents) has perceived a difficulty and sought to develop a solution through a
structured process of investigation and deliberation about the desired content
of the relevant legal norms. Official statements (for example, resolutions or
press releases) will usually demonstrate collective intent to improve existing
international legal norms. However, other evidence (for example, interviews or
media reports) may serve as proof in a given case. Also, legal norms need not be
formally binding; they are simply those norms that assume a ‘recognisable legal
form’.72 In these senses, among others, the concept of international law reform
integrates socio-legal (legal realist) perspectives.73

2 THE CONCEPT OF INTERNATIONAL LAW REFORM: PART 2

The second part of international law reform concerns outcomes and improvements.
The term ‘outcome’ is defined as a new international instrument or revision to
an existing international legal text. This condition differentiates
international law reform from the ad hoc development of concepts, principles or
doctrines through decisions of international dispute resolution bodies,
described by Nico Krisch and Ezgi Yildiz as a ‘pathway’ of international legal
change.74 It also helps distinguish international law reform from broader
notions of legal change as a social process in the transnational legal process
literature, as developed by Halliday and Shaffer.75

The broader effects of a textual change are captured by the notion of
improvement. The notion of improvement (‘change for the better’) has empirical
and normative dimensions. The empirical dimension may include considerations of
compliance and effectiveness – that is, the degree of ‘conformity or identity
between an actor’s behavior and [a] specified rule’ and the extent to which that
rule achieves ‘observable, desired changes in behavior’.76 This mode of inquiry
is familiar from the soft/in-law literature as well as from the transnational
socio-legal and international relations scholarship. In addition, the empirical
dimension may have critical components if it sees international law reform
researchers problematize the very goals of the reform process and/or the
capacity of the reformed text to affect desirable changes, given the wider
ideological, political and economic constraints of international society.77

The normative dimension is about the degree to which the outcomes of a law
reform process align with relevant values. The values of textual clarity and
coherence feature in the literature on domestic law reform and international
codification; meta-norms, like accountability and transparency, legitimacy and
legality, figure in the soft/in-law and constitutionalist scholarship. Critical
scholars debate law’s emancipatory potential. The key point here is that the
benchmarks for appraisal are not fixed. Rather, researchers are to select and
defend a benchmark for appraisal having regard to the features of the policy
problem, the nature of the legal change and their own skills and interests. In
other words, the concept of international law reform does not posit a single
perspective from which to assess alleged improvements in international law. But
it does require an articulation and application of a measure for success or
failure.

3 INTERNATIONAL LAW REFORM IN OVERVIEW

Defined in this way, ‘international law reform’ is an analytical framework that
melds formalist and normative, sociological and critical accounts of law-making
and legal theory in global governance. The procedural part draws, in particular,
on mainstream notions of domestic law reform, codification and progressive
development. The substantive part advances concerns about the form and qualities
of international legal rules, which are familiar from the constitutionalist,
critical and soft/in-law literatures as well as from allied studies in
international relations. The concept of international law reform adds to
existing debates around international law-making and legal theory by focusing
attention on efforts at change within the international legal system. It also
enables the outcomes of those initiatives to be described and evaluated against
chosen external criteria. That sort of legal academic lens would arguably
benefit discussions of legal changes in the domestic legal space, but it is
essential in the international legal system, which lacks a general legislative
apparatus and agreed criteria for demarcating authoritative and legitimate
normative developments.78


3 THE 2021 OECD RECOMMENDATIONS ON SETTLEMENTS AS A PRIMA FACIE CASE OF REFORM

The value of the concept of international law reform can be seen through its
application to new OECD standards on corporate settlements in foreign bribery
cases. During the early 2000s, settlements emerged as a popular but problematic
means of resolving allegations that companies had bribed foreign public
officials.79 There were no express rules on settlements in the 1997 Convention
on Combating Bribery of Foreign Public Officials in International Business
Transactions (Anti-Bribery Convention)80 or in previous versions of the OECD
Recommendation.81 Instead, the OECD Working Group on Bribery implicitly
regulated domestic settlement laws and practices through its country reports.82

This position changed in November 2021 when the Council of the OECD revised the
OECD Recommendation to include sections XVII–XVIII on non-trial resolutions
(settlements). This part of the article uses sections XVII–XVIII to demonstrate
the potential of international law reform as an analytical lens. It presents the
problem of corporate settlements within the OECD’s system of foreign bribery
controls. It then describes the procedure through which the OECD developed
sections XVII–XVIII, being the formal outcome of a putative reform process. The
content of sections XVII–XVIII is then compared to the content of the implicit
norms on settlements in the working group’s prior country reports and
is tentatively evaluated. The final section concludes not with approval or
disapproval but, rather, with reflections on the importance of conceptualizing
international law reform within and beyond the OECD case.


A THE PROBLEM OF CORPORATE SETTLEMENTS

The first element of the first part of the concept of international law reform
is a perceived problem with extant international legal standards. For that
reason, I begin the case study with a brief description of the OECD system of
foreign bribery control and the apparent problem of settlements within that
system. The OECD is not the oldest, but it is one of the most important,
international forums for corruption control. Its Anti-Bribery Convention was a
pet project of the USA in its ‘golden years’ of post-Cold War hegemony.83 The
treaty contains a small number of mainly mandatory obligations on foreign
bribery,84 which are complemented and supplemented by the non-binding (‘soft’)
standards in the OECD Recommendation.85 Countries that participate fully in the
OECD’s Working Group on Bribery may accede to the convention; the working group
includes many (though not all) industrialized and emerging economies as
members.86

Settlements with legal persons have an awkward place within the OECD’s system of
foreign bribery control. The Anti-Bribery Convention prioritizes the use of the
criminal law to prevent and suppress foreign bribery. Its first two articles
mandate the criminalization of foreign bribery and the criminal liability of
corporations for that offence, if possible, in national law.87 Article 3 says
that states must punish corporate bribe payers with ‘effective, proportionate
and dissuasive criminal penalties’ as a rule.88 Then, having asserted
jurisdiction in such matters, governments must ensure that their agents
investigate and prosecute alleged offenders without regard to ‘considerations of
national economic interest, the potential effect upon relations with another
State or the identity of the natural or legal persons involved’ under Article 5.
State parties must also cooperate with each other in foreign bribery matters
under Articles 9 and 10.

However, since the early 2000s, settlements have been a leading means for
resolving foreign bribery cases within the USA,89 which is a key state sponsor
of the working group. In fact, OECD research on the period between February 1999
and June 2018 found that most cases within the scope of the Anti-Bribery
Convention had been resolved through ‘agreement[s] between a legal or natural
person and an enforcement authority to resolve foreign bribery cases without a
full trial on the merits’.90 Across the 44 parties to the convention, non-trial
resolutions were used in 78 per cent of cases; for legal persons, ‘91% of the
resolutions … did not involve a trial’.91 At least 27 of the parties to the
Anti-Bribery Convention recognized some type of non-trial resolution procedure
in national law and ‘a substantial majority (74%) had several applicable
systems’ for natural and/or legal persons.92 The study identified several types
of settlement procedure, including US-style non- and deferred prosecution
agreements, Italian patteggiamento, Spanish conformidad and other types of plea
bargains.93

Corporate settlements are as problematic as they are popular. Law and economics
research suggests that settlements can enhance the efficiency of enforcement
actions if they incentivize company managers to have their organizations
self-report misconduct, cooperate in investigations and undertake compliance
reforms, along with other remedial measures.94 Other claimed benefits of
negotiated outcomes include the avoidance of lengthy and costly trials,95
adverse publicity96 and, if deals do not involve conviction, debarment.97 That
said, settlements may undermine deterrence if they reward corporations too much
or too little for cooperation or ‘self-cleansing’.98 Further, by facilitating
negotiations for leniency between prosecutors and firms, settlement systems may
allow corporate offenders to ratchet down regulatory expectations of adequate
bribery prevention measures.99 Settlements may also conflict with due process
norms due to weak judicial review procedures100 and incentives for managers to
coerce employees into cooperation or to forfeit the corporation’s own fair trial
rights.101 Finally, settlements may have an imperial aspect if they preclude
enforcement actions in other states and/or do not lead to the sharing of
settlement sums with the countries whose officials were bribed.102

Settlements were not expressly addressed in the Anti-Bribery Convention,
however.103 The negotiations to the convention contemplated the need to
‘co-ordinate the use of [the] … practice [of plea bargaining] in foreign bribery
cases’ and ‘to give [the] issue [of prosecutorial discretion] adequate attention
in the follow-up procedure’ to the convention.104 But, as adopted, Articles 2
and 3 only require parties to introduce criminal or equivalent non-criminal
forms of liability for legal persons and to ensure that punishments for
corporate foreign bribery are ‘effective, proportionate and dissuasive’.105
Similarly, while Article 5 seeks to exclude certain economic and political
considerations from enforcement decisions, it also ‘recognises the fundamental
nature of national regimes of prosecutorial discretion’.106 Previous versions of
the OECD Recommendation were likewise silent on settlements, though they
addressed related matters – for example, the resourcing of prosecutors,107 the
conditions for corporate criminal attribution108 and the design of bribery
prevention and detection measures.109

In the absence of express rules, the Working Group on Bribery implicitly
regulated domestic settlement laws and practices through its country reports.110
The working group is a subsidiary body of the Council of the OECD that also
functions as a standing conference of the parties to the Anti-Bribery
Convention.111 The group’s overarching goal is to:

> help countries Party to the OECD Anti-Bribery Convention (‘Member countries’)
> combat [foreign bribery] by pursuing the full implementation of the
> [Convention and 2009 OECD Recommendation] through an ongoing programme of
> systematic follow-up and monitoring, establishing high standards for foreign
> bribery legislation and enforcement, engaging in dialogue with business and
> civil society, and, as appropriate, with non-Member countries identified by
> the Working Group.112

The working group achieves that objective, in part, through a peer review
process and other activities to ‘share best practice … by examining prevailing
trends, issues and counter-measures in foreign bribery’.113 During the now four
phases of review, member countries complete questionnaires about their systems
for foreign bribery control.114 They also host on-site visits from evaluation
teams, which consist of staff from the secretariat of the working group and
experts from the member countries who are acting as ‘lead examiners’ for that
peer.115 With input from the examiners, the secretariat prepares a report on the
evaluated country’s progress in implementing the convention and
recommendation.116 This report is voted on by all working group members except
the state under review and, once adopted, published online.117

In previous research with Tina Søreide, I found that the Working Group on
Bribery used its country reports to issue a qualified endorsement of domestic
settlement laws and practices. On the one hand, the reports praised settlements,
calling at times on member states to keep or adopt that kind of process within
their legal systems.118 On the other hand, reports suggested that some domestic
settlement laws and practices may not comply with Articles 3 and 5 of the
Anti-Bribery Convention and/or fall short when assessed according to the
principles of transparency and accountability, predictability and
consistency.119 These principles were asserted rather than justified.120
Overall, we concluded that the working group provided an implicit regulatory
limit to deal making but insufficient guidance to states as to the preventive
effect and cost of settlements, much less their impact on the capacity of a
legal system to ensure procedural fairness, equal treatment and legal certainty
in (quasi-)criminal procedures.121 The implicit norms on settlements were also
hard to ascertain, being spread across multiple country reports and being
expressed not as general recommendations but, rather, as suggestions to
particular member countries.122 Therefore, rather ironically, the OECD ‘fail[ed]
to clearly articulate [its] expectations on settlements, while calling for
transparent, effective, and predictable domestic settlement rules’.123


B THE PROCESS OF REVISION AND THE OUTCOME OF THAT PROCESS

The deficient regulation of corporate settlements was part of the context in
which the OECD Working Group on Bribery launched a process to improve the 2009
OECD Recommendation. The first limb of the concept of international law reform
highlights the intentional qualities of that process of revision and the
aspirations behind sections XVII–XVIII as the textual outcome.

Between the time of its creation in 1994 and its last revision in 2021, the OECD
Recommendation was reviewed twice. The next-to-last version was adopted in
2009.124 Intending to mark that 10-year anniversary with a new revision,125 the
Working Group on Bribery ‘agreed to open discussion on a review of the 2009
Anti-Bribery Recommendation in March 2018’.126 ‘Following a survey to identify
priorities areas’, it ‘engaged in an extensive review process’,127 the aim of
which was ‘to take stock of … new developments, explore areas where the
Anti-Bribery Recommendation could be revised and OECD anti-bribery standards
thereby further strengthened, and possibly consider areas for future work’.128
This process included ‘a stocktaking exercise of ten years of implementation of
the 2009 Anti-Bribery Recommendation, multiple written member country
consultations, and eight dedicated meetings of Working Group on Bribery
members’, as well as consultations with ‘other relevant bodies, groups and
stakeholders’ within and outside the OECD.129 Submissions on settlements were
received by the UNCAC coalition of non-governmental organizations (NGOs)130 and
the so-called ‘Recommendation 6 Network’ of ‘academics, lawyers, corporate
officers, NGOs and others’.131

In March and April 2019, moreover, the Working Group on Bribery conducted a
public consultation, as a part of which it asked: ‘What recommendation could be
envisaged to address non-trial resolutions in the enforcement of the foreign
bribery offence?’132 It explained this ‘suggested question’ by counterposing the
lack of regulation of settlements in the OECD instruments and their frequent use
by member countries. It also mentioned the potential utility of settlements in
‘driv[ing] … enforcement and … leverag[ing] corporate compliance’ as well as
their potential deficits in ‘transparency and accountability’ as used.133 The
OECD received more than 30 submissions from individual ‘legal experts’, NGOs,
multilateral bodies and business organizations on the settlement question and
others.134

The outcome of these efforts was a further revised OECD recommendation that
included two sections on ‘non-trial resolutions’. These were defined as
‘mechanisms developed and used to resolve matters without a full court or
administrative proceeding, based on a negotiated agreement with a natural or
legal person and a prosecuting or other authority’.135 The new section XVII
suggests that countries ‘consider’ resolving foreign bribery cases in a variety
of ways, including via ‘non-trial resolutions’ with individuals and legal
persons.136 The new section XVIII qualifies that call to action by urging states
to ‘ensure that non-trial resolutions used to resolve cases related to offences
under the OECD Anti-Bribery Convention follow the principles of due process,
transparency, and accountability’. This recommendation is illustrated with the
eight desirable measures in section XVIII(i)–(viii). The revised recommendation
was adopted by the Council of the OECD in November 2021 and, as adopted, is
presented as a means of ‘updat[ing] and expand[ing] upon the 2009 OECD
Recommendation … by reflecting recent trends and challenges in the foreign
bribery field, thereby ensuring that the Recommendation remains relevant and
effective’.137 Non-trial resolutions are described as one of the ‘key topics …
[to have] emerged or significantly evolved in the anticorruption area since
2009’.138


C THE DEGREE OF CHANGE BETWEEN THE OECD REPORTS AND SECTIONS XVII–XVIII

The 2021 OECD Recommendation is the product of an intentional legal chance
process per Part 1 of the concept of international law reform. The Council of
the OECD, working with and through the Working Group on Bribery, is also the
competent body for soft law-making on settlements within the OECD’s
anti-corruption system. Therefore, the 2021 OECD Recommendation is a prima facie
example of an international law reform. But, as concerns settlement, how does
this document perform under the second substantive part of my law reform
concept? This question drives the next two sections of this case study.

An initial challenge is to determine whether, and if so how, the 2021 OECD
Recommendation changes the organization’s existing approach to corporate
settlements. Krisch and Yildiz define ‘legal change’ as the ‘modification of the
burden of argument for a particular position on the content of the law’, as
evidenced by a shift in ‘the scope of possible interpretations or the weight of
a particular position in legal discourses’.139 Their definition is empirical in
that it focuses on the perceived content of the law as it evolves through
communication within a discursive community. Adopting this definition, I
consider the extent to which the 2021 OECD Recommendation modifies the OECD’s
prior approach to domestic corporate settlement laws and practices. Put simply,
I ask how the express recommendations on settlements differ from the prior
implicit rules in the working group’s pre-November 2021 country reports.

The short answer is that the two express recommendations on corporate
settlements closely track the Working Group on Bribery’s previous report-based
approach to settlements. Sections XVII–XVIII do not offer a radically different
set of norms for controlling how member states negotiate the conclusion of
foreign bribery cases with suspect legal persons. Instead, they reflect the same
general policy of condoning the use of corporate settlements subject to
compliance with the Anti-Bribery Convention and (related) procedural norms.
Overall, the sections express and elaborate the Working Group on Bribery’s
approach to settlements in the prior country reports. Sections XVII–XVIII are
thus akin to a soft codification and progressive development of the working
group’s prior reporting practice.140

The longer answer begins with the observation that sections XVII–XVIII take the
same basic policy stance on settlements as the working group’s pre-November 2021
country reports. Like the reports, sections XVII–XVIII assume that negotiated
outcomes are compatible with the Anti-Bribery Convention, provided that they
comply with the convention itself and the specified values.141 Section XVII thus
calls on member countries to ‘consider using a variety of forms of resolutions
when resolving criminal, administrative, and civil cases with both legal and
natural persons, including non-trial resolutions’.142 In this way, the 2021 OECD
Recommendation condones the use of settlements in domestic law, even if it does
not describe them with the superlatives sometimes deployed in the reports.143
Section XVIII then starts with a general recommendation to member states to
ensure that ‘non-trial resolutions … follow the principles of due process,
transparency, and accountability’. Subsections XVIII(i)–(viii) expand on the
need for transparency and clarity as well as compliance with Articles 3 and 9–10
of the Anti-Bribery Convention. Similarly, the reports had sought to cabin the
use of corporate settlements by reference to transparency and accountability,
predictability and consistency in addition to Articles 3 and 5.144

Second, when sections XVII–XVIII strike new ground, they do so by way of
elaboration, rather than radical revision, of the reports’ implicit norms. For
example, the reports did not discuss due process rights as a general category of
concern with corporate settlements, despite that being a key theme in the
settlement literature. Rather, some reports queried whether states provided
sufficient (judicial) supervision for governments’ decisions to settle.145
Others mentioned the risk that settlement laws could be perceived to favour
elite offenders146 or used to scapegoat workers.147 Section XVIII builds on this
position by starting with a general recommendation that states adhere to the
principle of due process in settlements. It then provides that states should
‘(viii) ensure that non-trial resolutions are subject to appropriate oversight,
such as by a judicial, independent public, or other relevant competent
authority, including law enforcement authorities’. Equal treatment and judicial
review are not recommended explicitly in section XVIII, however.148

Third, there are statements in the country reports that are not matched in
section XVIII but are captured, more generally, in other sections of the 2021
OECD Recommendation. For instance, while section XVIII does not mention Article
5 and its irrelevant considerations, Annex I to the 2021 Recommendation – a
‘Good Practice Guidance on Implementing Specific Articles of the Convention’ –
reiterates the need for ‘vigilen[ce] in ensuring that investigations and
prosecutions … are not influenced by [Article 5 factors]’.149 Similarly, section
XVIII does not address the problem of whether, and if so how, the Working Group
on Bribery’s member states should ‘share’ settlement sums with the countries
whose officials were bribed.150 Rather, section XVIII(vii) provides ‘that the
conclusion of a non-trial resolution … [should be] without prejudice … to an
enforcement action against other relevant natural or legal persons, where
appropriate’. This provision is complemented by section XIX, which suggests that
member states of the Working Group should consult and otherwise cooperate with
other countries in foreign bribery investigations and proceedings, including on
the ‘recovery of the proceeds of bribery’.


D THE NEW CORPORATE SETTLEMENT RULES AS A CHANGE FOR THE BETTER?

To repeat, the 2021 OECD Recommendation explicates and elaborates the OECD’s
implicit approach to corporate settlements as per the prior Working Group on
Bribery’s country reports. But it is not alteration so much as improvement that
is the essence of Part 2 of the concept of international law reform. Do sections
XVII–XVIII change (or are they likely to change) international anti-corruption
law for the better? I do not answer this question conclusively here. Rather, I
use sections XVII–XVIII to illustrate that evaluative questions complement
descriptive ones in studies of international law reforms. The discussion shows
how multiple perspectives on international law-making and legal theory can be
brought to bear on a single putative reform and how a benchmark for assessment
can be set.

1 LEGAL CERTAINTY AS THE STANDARD FOR APPRAISAL IN THE OECD CASE

Given that sections XVII–XVIII expressed and elaborated the OECD’s rules on
settlements, it is appropriate to apply the standard of legal certainty to the
assessment of that putative reform. I understand legal certainty to be the
proposition that legal norms should be accessible, foreseeable and consistently
applied.151 Legal certainty entails relative clarity and precision in drafting
as well as the proclamation of rules before their enforcement and the limitation
of resulting discretions.152 Certain rules have the benefit of being more
law-like than uncertain ones because they have greater capacity to guide
behaviour.153 In addition, certainty may have instrumental strengths. Not only
are actors more likely to follow rules that they understand,154 but they are
more likely to view clear and clearly enacted rules as a legitimate restriction
on their behaviour.155 Rules that induce compliance may be more effective
(presuming that the compliant conduct is consistent with the outcome that the
rule-maker intended). Legal certainty also conceptually correlates with greater
accountability,156 defined as ‘a relationship between an actor and a forum, in
which the actor has an obligation to explain and to justify his or her conduct,
the forum can pose questions and pass judgement, and the actor may face
consequences’.157 The clearer the standard, the easier it should be for the
forum to question, judge and, thereafter, sanction.

2 SECTIONS XVII–XVIII AS A GAIN FOR LEGAL CERTAINTY

Sections XVII–XVIII are a gain for legal certainty insofar as they express the
OECD’s implicit approach to corporate settlements in the 2021 OECD
Recommendation. A principal criticism of the report-based approach to corporate
settlements was its opacity: the Working Group on Bribery’s stance on
settlements was not encapsulated in an obvious regulatory document, like the
Anti-Bribery Convention or the OECD Recommendation, but it had to be deduced,
through a content analysis from multiple country reports. Sections XVII–XVIII
function as a promulgation of the norms on how member states should design and
implement their settlement regulations. Promulgated rules should be easier for
state parties to the convention to implement and for the working group’s
secretariat and lead examiners to identify and apply.

Insofar as sections XVII–XVIII are a gain for legal certainty, they are also a
gain for accountability, compliance and effectiveness. As for accountability,
the formalization of the rules on settlement enhances the capacity of member
states, non-member states and non-state actors ‘to pose questions and pass
judgment’ about the OECD’s approach to settlement, even if those promulgated
standards are soft laws. These questions and judgments may lead to consequences
for the OECD as an organization, the Working Group on Bribery as a body and/or
the participating countries in their individual capacities. These consequences
are likely to take the form of public criticism, enhanced reporting requirements
and diplomatic objection procedures.158 As for effects on behaviour, the working
group’s member states are arguably better able to follow clearer rules on
settlement; they may be more willing to do so since the recommendations are more
law-like than the working group’s implicit rules on settlement. In other word,
sections XVII–XVIII may do better at prompting compliance with the OECD’s rules
on settlement and have more potential to achieve the member states’ goals
vis-à-vis corporate non-trial resolutions.

Another plus is that the OECD has secured these potential gains with minimal
risk of legal ossification. Early critics of continental-style codification
efforts argued that they would foster legalism and limit the organic development
of customary international law due to their rigidity.159 The new, regulatory and
experimental governance literature shares this worry in that it advocates
flexible approaches to the transnational problems. Indeed, advocates of
regulatory approaches suggest that principles may ‘deliver more consistency’
than bright-line rules when applied to complex problems.160 Whereas rules invite
legal challenges by wealthy repeat players, like corporations, principles are
less amenable to challenge and better able to foster convergent understandings
about compliance among participants in regulatory games.161 In these ways,
sections XVII–XVIII may be well suited to managing the problem of domestic
settlement laws and practices. These sections propose overarching values in
advisory language; they are subject to peer, rather than judicial, review; and,
given that the OECD Recommendation has been revised three times already,162 it
is reasonable to expect that it would be subject to further revision.

3 SECTIONS XVII–XVIII AS A SOURCE OF NEW AMBIGUITY

Equally, as a soft codification and progressive development of soft norms, the
2021 OECD Recommendation on settlement remains ambiguous, and this ambiguity may
create problems of accountability, compliance and effectiveness. A first concern
is the uncertain aims of the new settlement standards. Criminologists have long
described the difficulty of assessing the performance of corporate crime laws
given the under-reporting of corporate offences and the lack of clarity about
their regulatory goals.163 In a manner that recalls this lament, the 2021 OECD
Recommendation leaves open the benchmark for assessing the effectiveness of
domestic settlement laws and practices. Section XVIII(v) indicates that states
should use settlements to achieve punishment-orientated objectives or, at least,
that settlements should not undermine a punishment goal. However, section
XVIII(ii)–(iii) signals that settlements may also be a device for affording
leniency to suspects or offenders and to activating corporations as agents of
crime prevention.

A second problem is that of cheating: the open texture of the 2021 OECD
Recommendation leaves room for member states to depart from the spirit of
sections XVII–XVIII and still to argue that they are compliant therewith and to
be judged as such by their peers. Of course, the Working Group on Bribery could
seek to limit this potential by calling out questionable domestic settlement
laws and practices in its country reports, enhancing the review of non-compliant
states or lobbying for change via diplomatic routes.164 This said, other members
of the working group may be reluctant to condemn cheating because, by ignoring
transgressions, they may preserve their own discretion to adopt laws and
practices that protect important exporters in future cases. The incentives for
the working group’s member countries to ‘look the other way’ may increase with
challenges to the political and economic power of the USA.

A third possibility is that the Working Group on Bribery or its member states
will interpret the ambiguities in sections XVII–XVIII in order to align with the
preferences of powerful states and non-state actors, regardless of whether those
interpretations achieve the optimum form of corruption control. As mentioned
above, the USA has had a leading role in regularizing the use of settlements in
corporate crime cases;165 it has been an important, if not exclusive, model for
corporate settlement laws in common law allies, like Canada and Australia.166
This does not mean that the USA does better than other countries at controlling
corporate crime or that US-style approaches to settlement can be reproduced with
effect in other legal systems.167 But it does raise the possibility that the
promulgation of sections XVII–XVIII will further the diffusion of US-style
settlement laws and practices. Perhaps tellingly, the US settlement system fared
well in the Working Group on Bribery’s fourth round of peer reviews, the lead
examiners ‘welcom[ing] the recent trend to see more cases also resolved at
trial’, but:

> acknowledg[ing] that non-trial resolutions are an important contributory
> factor to the U.S. high volume of concluded cases through the better detection
> of foreign bribery and because it allows the U.S. authorities to address
> enforcement challenges, in particular complex investigation and statute of
> limitations. They commend the United States for the pragmatic development –
> including with the recent declinations with disgorgement – and use of these
> instruments, which have been instrumental in the resolution of prominent
> multi-jurisdictional cases in which the United States have played a leading
> role.168

With respect to non-state actors, there is a risk that the ambiguity of sections
XVII–XVIII will be interpreted in ways that increase, rather than constrain,
corporate impunity in foreign bribery cases. I have already noted the potential
for compliance standards to be gradually reinterpreted in accordance with
business goals and corporate practices.169 This process (known as legal
endogeneity) is more likely to result in business-friendly constructions when
statutory language is vague and the underlying concepts are (politically)
contested.170 Following this logic, sections XVII–XVIII may encourage the type
of corporate-regulator engagements that lead to symbolic compliance because the
steps they require and the principles they reference – transparency,
accountability and due process – are all broad.171 From a critical perspective,
it could also be said that the OECD recommendations on corporate settlements
increase the discursive power of corporations by reinforcing a perception that
compliant firms are legitimate global actors.172

In addition, the use of soft law to express and elaborate the OECD’s approach to
settlements may affect the sites and agents of corporate crime control in
unpredictable, if not necessarily unwelcome, ways. Abraham Newman and Elliot
Posner demonstrate the second-order effects of soft law via a study of global
financial regulation after the Cold War. As they show, reformist factions within
the European Union cited ‘written, advisory prescriptions’ from international
bodies to bolster the legitimacy of their calls for harmony within the common
market and with US-style standards.173 Financial industry bodies then
reorientated their goals and activities to achieve influence in the
transnational arenas in which the soft law had been negotiated.174 Time will
tell whether the promulgation of sections XVII–XVIII has likewise helped to
entrench the OECD (its Working Group on Bribery) as an arena for standard
setting about corporate crime governance as well as how the recommendation
review process has affected the identities and agendas of stakeholders in this
regulatory space.

Finally, the ambiguity of the 2021 OECD Recommendation may be exacerbated by,
and contribute to, the ambiguity of other instruments of transnational
anti-corruption and anti-money laundering law. The international layer of this
regime or order comprises more than a dozen ‘suppression conventions’175 and a
myriad of informal rules, which are drafted, monitored and periodically changed
by networks of governmental experts.176 Some states publish guidelines on the
steps that companies should take to avoid liability,177 reduce prospective
sentences178 and/or be eligible for a settlement.179 These administrative
standards complement the substantive and procedural criminal law. The OECD 2021
Recommendation may inform how these other standards on corporate crime are
(re)written or read. In the best case, sections XVII–XVIII may lead to a
convergence of understandings on what is necessary to reduce the risk of
corporate impunity through settlements. Alternatively, the OECD 2021
Recommendation may give ambiguous prompts to the lawmakers, adjudicators and
administrators who create, apply or oversee those standards. Through a recursive
process of transnational legal change,180 these new rules or understandings may
then affect interpretations of sections XVII–XVIII. The result would be the
regulatory equivalent of a house of mirrors, in which a series of broad and soft
standards reference each other in their substance and/or their claims to
authority but in which none is clear and none is clearly authoritative.


E THE OECD RECOMMENDATIONS ON CORPORATE SETTLEMENTS AS AN INTERNATIONAL LAW
REFORM

Section 3 of this article – the case study – does not end with a verdict on the
success or failure of the 2021 OECD Recommendation as it covers settlements.
That verdict depends on further empirical and normative studies as well as more
time: when the research for this article was finalized in mid-2023, sections
XVII–XVIII were only about two-and-a-half years old. Instead, the goal of this
section was to illustrate how the concept of international law reform helps
researchers to identify, describe and evaluate intentional legal change
initiatives beyond the state as well as the directions in which this concept
could take researchers. There are three key messages.

First, the discussion has shown how the concept of international law reform can
draw attention to attempts by international bodies to improve their legal
frameworks in response to apparent problems. In the above scenario, the concept
served to highlight the OECD’s effort to fashion express recommendations on
domestic settlement laws and practices so as to better its anti-corruption
system. Such a development could easily be missed in discussions of
international law-making if there was no focus on intentional legal improvement
initiatives.

Second, the case study showed how the concept of international law reform
prompts scholars to analyse new international legal texts in relative, as well
as absolute, terms. Sections XVII–XVIII of the 2021 OECD Recommendation were
thus compared to the statements on settlements in the Working Group on Bribery’s
prior country reports. From this comparison, it emerged that the 2021 OECD
Recommendation explicated and elaborated the OECD’s prior implicit approach to
settlements rather than offering a radically new approach. This sort of
comparative analysis would not have followed from a simple, point-in-time
description of sections XVII–XVIII.

Third, the concept of international law reform requires the articulation and
application of standards for appraising changed legal texts. I applied the
criterion of legal certainty to sections XVII–XVIII, finding that they were both
a gain for the international rule of law and an invitation for further
obfuscation. I did not conclude on whether the 2021 OECD Recommendation improved
international anti-corruption law on balance. However, I did use a range of
potential benefits and risks to show the importance of considering the impacts
of adjustments to international legal texts. The concept of international law
reform highlighted this need without discouraging or discounting those projects
for improvement. It links normative and empirical studies to descriptive or
analytical accounts of the shifting content of international law and the
apparently good intentions of international actors.


4 CONCLUSION

This article has sought to articulate a new concept of legal improvement beyond
the state. To this end, section 2 scanned the literature on (international)
legal change and legal theory for discussions of law reform, express or
implicit. Extending those accounts, it then conceived of international law
reform in two steps. International law reform first concerns an intentional
change process among international actors that seeks to address a perceived
problem with existing international legal norms. Second, it involves the
outcomes of such processes that change, or are likely to change, those norms for
the better. Defined in this way, ‘international law reform’ is an analytical
framework that melds formalist and normative, sociological and critical accounts
of law-making and legal theory in global governance. This sort of structured
analysis is arguably important for understanding intentional legal change
initiatives in domestic legal systems. But it is crucial in the international
legal system where the secondary rules on law-making are neither clear nor
comprehensive and the existing processes for normative development are highly
fragmented, decentralized and often informal.

Having thus defined and defended international law reform as a concept, the
article then illustrated its utility with a case from international
anti-corruption law. Section 3 found that there was a match between sections
XVII–XVIII of the OECD 2021 Recommendation and the procedural part of the
concept of international law reform. The recommendation also clarified and
augmented the soft law on settlements in that it expressed and extended the
OECD’s prior implicit approach to non-trial resolutions as gleaned from country
reports. However, sections XVII–XVIII also may have created new ambiguities and
opportunities for stakeholder influence within the OECD’s system of foreign
bribery control. In this article, it was neither necessary nor possible to
decide whether sections XVII–XVIII did improve the OECD’s approach to
settlements on balance. The point was to demonstrate how identification,
description and critique are sequential and essential steps for their analysis.

Looking ahead, the OECD case study has shown how the concept of international
law reform may enable discussion about legal change within and beyond the
international legal academy. First, the concept of international law reform
provides a common language for identifying and describing putative law reform
initiatives within and across domains of international relations. Future
research could use this concept as a framework for comparison between
initiatives in different substantive fields. Second, the concept of
international law reform entails appraisal but permits researchers to choose
criteria that reflect their interests, disciplines and cases. In this way, the
concept of international law reform is both structured and inclusive. It could
frame inter-/multidisciplinary studies in particular areas of international law
or of a particular case. Third, by including but separating intentions and
effects in the analysis, the concept of international law reform enables
academics to both validate the impulse for improvement and critique the
resultant intervention. The concept of international law reform thereby
facilitates engagement between international legal researchers and policy-makers
and, through that engagement, the contribution of international law academics to
the reform process in a wider sense.


FOOTNOTES

1

M. Koskenniemi, From Apology to Utopia: The Structure of International Legal
Argument (2005), at 59.

2

See further section 2.B.

3

See further section 2.C.

4

See further section 2.D.

5

Jennings, ‘Law Reform: A New Idea for International Lawyers’, 1 European Journal
of Law Reform (1999) 3, at 4–5; see also Cassese, ‘Introduction’, in A. Cassese
(ed.), Realizing Utopia: The Future of International Law (2012) xvii, at xix.

6

A. Boyle and C. Chinkin, The Making of International Law (2007), at 171.

7

Secretariat of the International Law Commission, ‘Introduction’, in United
Nations (ed.), Seventy Years of the International Law Commission: Drawing a
Balance for the Future (2021) 1, at 7; see also Voulgaris, ‘The International
Law Commission and Politics: Taking the Science out of International Law’s
Progressive Development’, 33 European Journal of International Law (EJIL) (2022)
761, at 766–767.

8

Shaffer and Ginsburg, ‘The Empirical Turn in International Legal Scholarship’,
106 American Journal of International Law (AJIL) (2012) 1.

9

See generally A. Bianchi, International Law Theories: An Inquiry into Different
Ways of Thinking (2016), at 136; Purvis, ‘Critical Legal Studies in Public
International Law’, 32 Harvard International Law Journal (HILJ) (1991) 81, at
89.

10

Abebe, Chilton and Ginsburg, ‘The Social Science Approach to International Law’,
22 Chicago Journal of International Law (2021) 3, at 18–19; Purvis, supra note
9, at 101–102.

11

See generally Krieger and Nolte, ‘The International Rule of Law – Rise or
Decline?: Approaching Current Foundational Challenges’, in H. Krieger, G. Nolte
and A. Zimmermann (eds), The International Rule of Law: Rise or Decline? (2019)
3; Mearsheimer, ‘Bound to Fail: The Rise and Fall of the Liberal International
Order’, 43 International Security (2019) 7; Posner, ‘Liberal Internationalism
and the Populist Backlash’, 49 Arizona State Law Journal (2017) 795.

12

Anghie, ‘Rethinking International Law: A TWAIL Retrospective’, 34 EJIL (2023) 7,
at 107–111; Duvic-Paoli, ‘International Law: A Discipline of Ambition’, 36
Leiden Journal of International Law (LJIL) (2023) 233; Mai, ‘Navigating
Transformations: Climate Change and International Law’, 37 LJIL (2024) 556.

13

‘Q&A: Pandemic Prevention, Preparedness and Response Accord’, World Health
Organization (10 June 2024), available at
www.who.int/news-room/questions-and-answers/item/pandemic-prevention--preparedness-and-response-accord.

14

‘MC12 Briefing Note: WTO Reform – An Overview’, World Health Organization
(n.d.), available at
www.wto.org/english/thewto_e/minist_e/mc12_e/briefing_notes_e/bfwtoreform_e.htm
(on the ‘multi-party interim appeal arrangement’).

15

Recommendation of the Council for Further Combating Bribery of Foreign Public
Officials in International Business Transactions (2021 OECD Recommendation),
Doc. OECD/LEGAL/0378, 26 November 2021; see also Recommendation of the Council
of the OECD on Bribery in International Business Transactions, Doc.
C(97)123/FINAL, 27 May 1994 (1994) 33 ILM 1390; Revised Recommendation of the
Council on Combating Bribery in International Business Transactions (1997 OECD
Recommendation), Doc. C(97)123/FINAL, 23 May 1997; Recommendation of the Council
for Further Combating Bribery of Foreign Public Officials in International
Business Transactions (2009 OECD Recommendation), Doc. C(2009)159/REV1/FINAL, 26
November 2009.

16

See Albanesi, ‘Beyond the British Model: Law Reform in New Zealand, Australia,
Canada, South Africa and Israel’, 6 Theory and Practice of Legislation (2018)
153, at 154; Barnett, ‘The Process of Law Reform: Conditions for Success’, 39
Federal Law Review (2011) 161; Freire e Almeida and Wei, ‘Law Reform in Latin
America’, in A.H. Qureshi (ed.), Law Reforms around the World: Perspectives from
National and International Law (2024) 79, at 81; J. Jacobsen, Legal Reform
(2022), at 31.

17

Jacobsen, supra note 16, at 20; Minnow and Barton Tobin, ‘Archetypal Legal
Scholarship: A Field Guide, 2nd. edition’, 71 Journal of Legal Education (2022)
494, at 495 (discussing ‘policy analysis’ as a common genre of legal writing).

18

Jacobsen, supra note 16, at 17; see, e.g., M. Kirby, Reform the Law: Essays on
the Renewal of the Australian Legal System (1983), at 8.

19

Cf. Jacobsen, supra note 16, at 20; see also Qureshi, ‘A Holistic Approach to
the Domestic and International Law Reform Systems’, in Qureshi, supra note 16,
1, at 4.

20

‘Reform’, n. 2 and adj., Oxford English Dictionary (2009), paras A, B, available
at www.oed.com.

21

See further Jacobsen, supra note 16, at 31–32.

22

I thank Jørn Jacobsen for this formulation. See also Jacobsen, supra note 16, at
30.

23

See, e.g., MacDonald, ‘Recommissioning Law Reform’, 35 Alberta Law Review (1996)
831, at 853–856; MacDonald and Kong, ‘Patchwork Law Reform: Your Idea Is Good in
Practice, but It Won’t Work in Theory’, 44 Osgoode Hall Law Journal (2006) 11,
at 17–29.

24

Jennings, ‘International Law Reform and Progressive Development’, in G. Hafner
et al. (eds), Liber Amicorum: Professor Ignaz Seidl-Hohenveldern in Honour of
His 80th Birthday (1998) 325, at 325–326.

25

Cassese, supra note 5, at xviii.

26

Krisch, ‘The Dynamics of International Law Redux’, 74 Current Legal Problems
(2021) 269, at 270.

27

Qureshi, supra note 19, at 5.

28

Cassese, supra note 5; Krisch, supra note 26, at 269; Jennings, supra note 5, at
3.

29

See generally Krisch and Yildiz, ‘The Many Paths of Change in International Law:
A Frame’, in N. Krisch and E. Yildiz (eds), The Many Paths of Change in
International Law (2023) 3.

30

R.P. Dhokalia, The Codification of Public International Law (1970), part 2; M.
Villiger, Customary International Law and Treaties (1985), at 63–70; see
generally Halpérin, ‘The Age of Codification and Legal Modernization in Private
Law’, in H. Pihlajamäki, M.D. Dubber and M. Godfrey (eds), The Oxford Handbook
of European Legal History (2018) 907, at 908–910.

31

See generally Commonwealth Secretariat, Changing the Law: A Practical Guide to
Law Reform (2017), available at
www.thecommonwealth-ilibrary.org/index.php/comsec/catalog/book/872.

32

Lauterpacht, ‘Codification and Development of International Law’, 49 AJIL (1955)
16, at 22; see also Survey of International Law in Relation to the Work of
Codification of the International Law Commission: Preparatory work within the
Purview of Article 18, Paragraph 1, of the International Law Commission –
Memorandum Submitted by the Secretary-General (Survey of International Law),
Doc. A/CN.4/1/Rev.1 (1949), paras 3–14.

33

Lauterpacht, supra note 32, at 20, 35–39; see also Jennings, ‘The Progressive
Development of International Law and Its Codification’, 24 British Yearbook of
International Law (BYIL) (1947) 301, at 308–309; Jennings, ‘Recent Developments
in the International Law Commission: Its Relation to the Sources of
International Law’, 13 International and Comparative Law Quarterly (ICLQ) (1964)
385.

34

Lauterpacht, supra note 32, at 19–20.

35

Chen, ‘Between Codification and Legislation: A Role for the International Law
Commission as an Autonomous Law-Maker’, in United Nations, supra note 7, 233, at
240–241, citing Survey of International Law, supra note 32.

36

Hurst, ‘A Plea for the Codification of International Law on New Lines’, 32
Transactions of the Grotius Society (1946) 135.

37

Brierly, ‘The Codification of International Law’, 47 Michigan Law Review (1948)
2, at 9.

38

Ibid., at 8–9.

39

Ibid., at 4.

40

Watts, Wood and Sender, ‘Codification and Progressive Development of
International Law’, in A. Peters and R. Wolfrum (eds), Max Planck Encyclopedia
of Public International Law (2021), para. 24.

41

Chen, supra note 35, at 240; see also Brierly, supra note 37, at 9.

42

Brown, ‘The Codification of International Law’, 29 AJIL (1935) 25, at 34, citing
L.F. Oppenheim, International Law: A Treaties, vol. 1 (4th edn, 1928), at 49–51;
see also Baker, ‘The Codification of International Law’, 5 BYIL (1924) 38, at
48, citing L.F. Oppenheim, International Law: A Treaties (2nd edn, 1912), at 43;
Hurst, supra note 36, at 151.

43

Secretariat of the International Law Commission, supra note 7, at 27.

44

Chen, supra note 35, at 252; Koskenniemi, ‘International Legislation Today:
Limits and Possibilities’, 23 Wisconsin International Law Journal (2005) 61, at
75–76; Pauwelyn, Wessel and Wouters, ‘When Structures Become Shackles:
Stagnation and Dynamics in International Lawmaking’, 25 EJIL (2014) 733, at
734–738.

45

Azaria, ‘Codification by Interpretation: The International Law Commission as an
Interpreter of International Law’, 31 EJIL (2020) 171.

46

Koskenniemi, supra note 44; Qureshi, supra note 19, at 4; Watts, Wood and
Sender, supra note 40, para. 27.

47

Boyle and Chinkin, supra note 6, at 212, 220–222; see also, e.g., Aust, ‘The
Theory and Practice of Informal International Instruments’, 35 ICLQ (1986) 787,
at 787; Baxter, ‘International Law in “Her Infinite Variety”’, 29 ICLQ (1980)
549, at 551–554; Chinkin, ‘The Challenge of Soft Law: Development and Change in
International Law’, 38 ICLQ (1989) 850, at 851.

48

Pauwelyn, Wessel and Wouters, ‘An Introduction to Informal International
Lawmaking’, in J. Pauwelyn, R.A. Wessel and J. Wouters (eds), Informal
International Lawmaking (2012) 1, at 2–3.

49

I thank one of the anonymous reviewers for this formulation.

50

Charter of the United Nations and Statute of the International Court of Justice
1945, UKTS 67 (1946) Cmd 7015.

51

See, e.g., Abbott and Snidal, ‘Hard and Soft Law in International Governance’,
54 International Organization (IO) (2000) 421, at 434–444; Guzman and Meyer,
‘International Soft Law’, 2 Journal of Legal Analysis (2010) 171, at 187–201;
Lipson, ‘Why Are Some International Agreements Informal?’, 45 IO (1991) 495, at
501, 514–520; Raustiala, ‘Form and Substance in International Agreements’, 99
AJIL (2005) 581, at 582–583; Shaffer and Pollack, ‘Hard vs Soft Law:
Alternatives, Complements, and Antagonists in International Governance’, 94
Minnesota Law Review (2010) 706, at 717–721. See also Pauwelyn, ‘Informal
International Lawmaking: Framing the Concept and Research Questions’, in
Pauwelyn, Wessel and Wouters, Informal International Lawmaking, supra note 48,
13, at 16–19.

52

On the concept of legitimacy, see Kumm, ‘The Legitimacy of International Law: A
Constitutionalist Framework of Analysis’, 15 EJIL (2004) 907, at 908.

53

See, e.g., D’Aspremont, ‘Softness in International Law: A Self-Serving Quest for
New Legal Materials’, 19 EJIL (2008) 5; Klabbers, ‘The Redundancy of Soft Law’,
65 Nordic Journal of International Law (NJIL) (1996) 167; Weil, ‘Towards
Relative Normativity in International Law?’, 77 AJIL (1983) 413, at 416–417.

54

Di Robilant, ‘Genealogies of Soft Law’, 54 American Journal of Comparative Law
(2006) 499; Klabbers, ‘The Undesirability of Soft Law’, 67 NJIL (1998) 381;
Mattei, ‘Hard Code Now!’, 2 Global Jurist (2002) 1.

55

Lipson, supra note 51, at 516; Stewert, ‘Remedying Disregard in Global
Regulatory Governance: Accountability, Participation, and Responsiveness’, 108
AJIL (2014) 211; see also Pauwelyn, Wessel and Wouters, ‘Informal International
Lawmaking: An Assessment and Template to Keep It Both Effective and
Accountable’, in Pauwelyn, Wessel and Wouters, Informal International Lawmaking,
supra note 48, 500, at 513–514.

56

Zerilli, ‘The Rule of Soft Law: An Introduction’, 56 Focaal: Journal of Global
and Historical Anthropology (2010) 3, at 11.

57

N. Walker, Intimations of Global Law (2015), at 86–87; see also Bianchi, supra
note 9, at 44–47.

58

Peters, ‘Global Constitutionalism’, in M.T. Gibbons (ed.), The Encyclopedia of
Political Thought (2015) 1; see generally Peters, ‘Compensatory
Constitutionalism: The Function and Potential of Fundamental International Norms
and Structures’, 19 LJIL (2006) 579, at 583.

59

Peters, ‘Global Constitutionalism’, supra note 58, at 1.

60

Although the latter claims more modest and positivist ambitions. See Krisch,
‘Global Administrative Law and the Constitutional Ambition’, in P. Dobner and M.
Loughlin (eds), The Twilight of Constitutionalism? (2010) 245, at 255–256;
Kingsbury, Donaldson and Vallejo, ‘Global Administrative Law and Deliberative
Democracy’, in A. Orford and F. Hoffmann (eds), The Oxford Handbook of the
Theory of International Law (2016) 526, at 528.

61

Koh, ‘Transnational Legal Process’, 75 Nebraska Law Review (1996) 181, at
183–184.

62

Halliday and Shaffer, ‘Researching Transnational Legal Orders’, in T.C. Halliday
and G. Shaffer (eds), Transnational Legal Orders (2015) 475, at 475.

63

Shaffer, ‘The Dimensions and Determinants of State Change’, in G. Shaffer (ed.),
Transnational Legal Ordering and State Change (2013) 23, at 34.

64

Halliday and Shaffer, ‘Transnational Legal Orders’, in Halliday and Shaffer,
Transnational Legal Orders, supra note 62, 3, at 38.

65

See note 9 above.

66

See, e.g., Chimni, ‘The Past, Present and Future of International Law: A
Critical Third World Approach’, 8 Melbourne Journal of International Law (2007)
499, at 503; see also Purvis, supra note 9, at 125.

67

See, e.g., Koskenniemi, supra note 1, at 555; see generally Bianchi, supra note
9, at 141–142.

68

Presenting this feature as a virtue, see Kirby, supra note 18, at 8; see
generally Bianchi, supra note 9, at 147.

69

Cf. Purvis, supra note 9, at 117.

70

Cf. Kirby, supra note 18, at 8.

71

Jacobsen, supra note 16, at 32–33.

72

Halliday and Shaffer, ‘Transnational Legal Orders’, supra note 64, at 15.

73

See section 2.D.

74

Krisch and Yildiz, supra note 29, at 14.

75

See especially Halliday and Shaffer, ‘Researching Transnational Legal Orders’,
supra note 62.

76

Raustiala, ‘Compliance and Effectiveness in International Regulatory
Cooperation’, 32 Case Western Reserve Journal of International Law (2000) 387,
at 391, 394.

77

See also Qureshi, supra note 19, at 7–8.

78

Krisch and Yildiz, supra note 29, at 4; Weil, supra note 53.

79

Organisation for Economic Co-operation and Development (OECD), Resolving Foreign
Bribery Cases with Non-Trial Resolutions: Settlements and Non-Trial Agreements
by Parties to the Anti-Bribery Convention (2019), at 29, available at
https://web-archive.oecd.org/2020-06-15/510434-resolving-foreign-bribery-cases-with-non-trial-resolutions.htm;
C. Woll, Corporate Crime and Punishment: The Politics of Negotiated Justice in
Global Markets (2023), at 39–44.

80

Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions (Anti-Bribery Convention) 1997, 2802 UNTS 225.

81

2021 OECD Recommendation, supra note 15.

82

Ivory and Søreide, ‘The International Endorsement of Corporate Settlements in
Foreign Bribery Cases’, 69 ICLQ (2020) 945.

83

See generally Villarino, ‘International Anticorruption Law, Revisited’, 63 HILJ
343, at 350–351; see also Mearsheimer, supra note 11, at 10.

84

M. Lohaus, Towards a Global Consensus against Corruption (2019), at 10.

85

A. Jakobi, Common Goods and Evils? The Formation of Global Crime Governance
(2013), at 143; Pieth, ‘Introduction’, in M. Pieth, L.A. Low and N. Bonucci
(eds), The OECD Convention on Bribery: A Commentary (2014) 28, at 26–27; C.
Rose, International Anti-Corruption Norms: Their Creation and Influence on
Domestic Legal Systems (2015), at 19–20.

86

Anti-Bribery Convention, supra note 80, Art. 13(2). Neither China nor India are
parties to the OECD Anti-Bribery Convention or Recommendation, and Russia, while
a party, has had its participation in OECD bodies suspended. OECD, The OECD
Working Group on Bribery in International Business Transactions: 2022 Annual
Report (2023), at 7–8, available at
www.oecd.org/daf/anti-bribery/oecd-working-group-on-bribery-2022-annual-report.pdf.

87

Anti-Bribery Convention, supra note 80, Arts 1(1), 2.

88

Ibid., Arts 3(1)–(2).

89

See generally B.L. Garrett, Too Big to Jail: How Prosecutors Compromise with
Corporations (2014), at 6–7.

90

OECD, supra note 79, at 13.

91

Ibid., at 13, 22–23.

92

Ibid., at 12. Only 27 state parties were eligible to, and did, participate in
the study. It is possible that others had one or more settlement mechanisms but
did not respond to the questionnaire.

93

Ibid., at 46–59.

94

Arlen, ‘The Potential Promise and Perils of Introducing Deferred Prosecution
Agreements Outside the U.S.’, in T. Søreide and A. Makinwa (eds), Negotiated
Settlements in Bribery Cases: A Principled Approach (2020) 156, at 169–171; Cf.
T. Søreide, Corruption and Criminal Justice: Bridging Economic and Legal
Perspectives (2016), at 189–190.

95

OECD, supra note 79, at 83–84.

96

Ibid., at 86–87; see also C. King and N. Lord, Negotiated Justice and Corporate
Crime: The Legitimacy of Civil Recovery Orders and Deferred Prosecution
Agreements (2018), at 75.

97

An administrative sanction that prevents convicted entities or individuals from
tendering to sell goods or services to public sector entities. OECD, supra note
79, at 86–89, 123–124; cf. Markoff, ‘Arthur Andersen and the Myth of the
Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First
Century’, 15 University of Pennsylvania Journal of Business Law (2013) 797.

98

Arlen, supra note 94, at 158–160; King and Lord, ‘Deferred Prosecution
Agreements in England and Wales: Castles Made of Sand?’, Public Law (2020) 307,
at 317–318; Lord, ‘Prosecution Deferred, Prosecution Exempt: On the Interests of
(In)Justice in the Non-Trial Resolution of Transnational Corporate Bribery’, 63
British Journal of Criminology (2023) 848.

99

Hock and David-Barrett, ‘The Compliance Game: Legal Endogeneity in Anti-Bribery
Settlement Negotiations’, 71 International Journal of Law, Crime and Justice
(2022) 1; see generally L. Edleman, Working Law: Courts, Compliance, and
Symbolic Civil Rights (2016).

100

Garrett, supra note 89, at 190–191, 195, 283–285.

101

Søreide and Vagle, ‘Settlements in Corporate Bribery Cases: An Illusion of
Choice?’, 53 European Journal of Law and Economics (2022) 261, at 281–282; Ridge
and Baird, ‘The Pendulum Swings Back: Revisiting Corporate Criminality and the
Rise of Deferred Prosecution Agreements’, 33 University of Dayton Law Review
(2008) 187, at 195–197; Garrett, supra note 89, at 88–95, discussing United
States v Stein (Stein I), 435 F. Supp. (2d) 330, at 336, 381 (SDNY 2006).

102

K.E. Davis, Between Impunity and Imperialism: The Regulation of Transnational
Bribery (2019), at 196; OECD, supra note 79, at 165–173; J.A. Oduor et al., Left
Out of the Bargain: Settlements in Foreign Bribery Cases and Implications for
Asset Recovery (2014).

103

Ivory and Søreide, supra note 82, at 954–958.

104

OECD Working Group on Bribery (OECD-WGB), OECD Actions to Fight Corruption, Doc.
DAFFE/IME/BR(97)14, 24 October 1997, at 22–23.

105

Anti-Bribery Convention, supra note 80, Arts 2, 3, read with OECD, Commentaries
on the Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions (Anti-Bribery Convention Commentaries), 21
November 1997, paras 20–21.

106

Anti-Bribery Convention, supra note 80, Art. 5, read with Anti-Bribery
Convention Commentaries, supra note 105, para. 27.

107

1997 OECD Recommendation, supra note 15, para. 6, Annex; see also 2009 OECD
Recommendation, supra note 15, para. D, Annex I.

108

2009 OECD Recommendation, supra note 15, paras B, C, Annex I.

109

Ibid., Annex II.

110

Ivory and Søreide, supra note 82, at 960–967.

111

Bonucci, ‘Article 12: Monitoring and Follow-Up’, in M. Pieth, L.A. Low and N.
Bonucci (eds), The OECD Convention on Bribery: A Commentary (2014) 534, at 539.

112

OECD, Draft Resolution of the Council Revising the Mandate of the Working Group
on Bribery in International Business Transactions Adopted by the Council at Its
1257th Session, Doc. C(2012)36, 22 March 2012, para. I(1), Annex.

113

Ibid., para. 5.

114

See, e.g., OECD, ‘Monitoring Implementation of the OECD Anti-Bribery Convention:
Phase 4 Evaluation Procedure, December 2023’, in OECD, OECD Anti-Bribery
Convention: Phase 4 Monitoring Guide (2023), para. 16, available at
https://www.oecd.org/daf/anti-bribery/phase-4-guide-2023.pdf.

115

Ibid., paras 18, 21–22.

116

Ibid., paras 8, 39.

117

Ibid., para. 61.

118

Ivory and Søreide, supra note 82, at 960–962.

119

Ibid., at 962–967.

120

Ibid., at 969.

121

Ibid., at 974–977.

122

Ibid., at 973.

123

Ibid., at 945.

124

See note 15 above.

125

OECD-WGB, Public Consultation Document: Review of the 2009 OECD Anti-Bribery
Recommendation, 22 March–30 April 2019, at 4–5, available at
www.oecd.org/corruption/anti-bribery/Public-Consultation-Review-OECD-Anti-Bribery-Recommendation.pdf.

126

2021 OECD Recommendation, supra note 15, at 3.

127

Ibid., at 4.

128

OECD-WGB, supra note 125, at 5.

129

2021 OECD Recommendation, supra note 15, at 3.

130

Corruption Watch et al., Principles for the Use of Non-Trial Resolutions in
Foreign Bribery Cases (Letter to Mr Angel Gurria, Secretary General OECD), 6
December 2018, available at
https://uncaccoalition.org/files/CSO-Letter-to-OECD.pdf. ‘UNCAC’ stands for
United Nations Convention against Corruption 2003, 2349 UNTS 41.

131

International Guidelines for Non-Trial Resolutions of Foreign Bribery Cases:
Recommendation Regarding Non-Trial Resolutions (or Negotiated Settlements) of
Cases Involving Foreign Bribery (2018), available at
www.nhh.no/en/departments/accounting-auditing-and-law/guidelines-for-non-trial-resolutions.
I was a member of the Recommendation 6 Network.

132

OECD-WGB, supra note 125, question 14; see also questions 8–9, 17, 31.

133

Ibid., at 10.

134

OECD-WGB, Public Comments: Review of the 2009 Anti-Bribery Recommendation
(2019), available at
web-archive.oecd.org/2020-10-19/528111-Public-Comments-Review-OECD-Anti-Bribery-Recommendation.pdf.

135

2021 OECD Recommendation, supra note 15, s. XVII.

136

Ibid.

137

Ibid., at 3.

138

Ibid., at 4.

139

Krisch and Yildiz, supra note 29, at 9–10.

140

Cf. Kaufmann-Kohler, ‘Soft Law in International Arbitration: Codification and
Normativity’, 1 Journal of International Dispute Settlement (2010) 283.

141

Ivory and Søreide, supra note 82, at 962; see, e.g., OECD-WGB, Chile: Phase 4
Report, Implementing the OECD Anti Bribery Convention (2018), at 42–43.

142

2021 OECD Recommendation, supra note 15, s. XVII.

143

Cf. Ivory and Søreide, supra note 82, at 961.

144

Ibid., at 962.

145

OECD-WGB, Implementing the OECD Anti-Bribery Convention, Phase 4 Report:
Netherlands (2020), at 65–66, paras 182–183, 189–193; cf. OECD-WGB, Implementing
the OECD Anti-Bribery Convention, Phase 4: United States (2020), at 75, paras
273–275; see also OECD-WGB, Phase 4 Report: Australia, Implementing the OECD
Anti-Bribery Convention (2017), para. 155.

146

OECD-WGB, supra note 141, at 43, paras 131–132; OECD-WGB, Phase 4 Report:
Switzerland, Implementing the OECD Anti-Bribery Convention (2018), para. 83.

147

OECD-WGB, Phase 3 Report on Implementing the OECD Anti-Bribery Convention in
France (2012), para. 101 (discussing, without endorsing, interviewee concerns
that the French comparution sur reconnaissance préalable de culpabilité
procedure compromised prosecutorial independence and ‘would be used only for
individuals and ultimately would serve only to “make the underdog pay”’). See
generally Ivory and Søreide, supra note 82, at 966–967.

148

On access to justice, see OECD-WGB, supra note 141, at 43, paras 131–132;
OECD-WGB, Switzerland, supra note 146, para. 83.

149

2021 OECD Recommendation, supra note 15, Annex I(D)(1).

150

See note 102 above and associated text; see further section 4.B.

151

European Commission for Democracy through Law (Venice Commission), Report on the
Rule of Law, Doc. CDL-AD(2011)003rev (2011), para. 44; see also J. Brunnée and
S. Toope, Legitimacy and Legality in International Law: An Interactional Account
(2010), at 67–69, 96–97; L. Fuller, The Morality of the Law (1969), at 63–65;
Kurzon, ‘Clarity and Word Order in Legislation’, 5 Oxford Journal of Legal
Studies (1985) 269; European Court of Human Rights, Guide on Article 7 of the
European Convention on Human Rights (2023), para. 28, available at
https://ks.echr.coe.int/documents/d/echr-ks/guide_art_7_eng.

152

Venice Commission, supra note 151, at 45–46.

153

J. Raz, The Authority of Law: Essays on Law and Morality (1979), at 223–226,
cited and discussed in Brunnée and Toope, supra note 151, at 28.

154

Chayes and Chayes, ‘On Compliance’, 47 IO (1993) 175, at 188–192.

155

Brunnée and Toope, supra note 151, at 38–39; T. Franck, The Power of Legitimacy
among Nations (1990), at 53–54.

156

Report of the Secretary-General on the Rule of Law and Transitional Justice in
Conflict and Post Conflict Societies, UN Doc. S/2004/616 (2004), para. 6.

157

Bovens, ‘Analysing and Assessing Public Accountability: A Conceptual Framework’,
13 European Public Law Review (2007) 447, at 450, cited in Pauwelyn, supra note
51, at 23.

158

Though Cecily Rose cites media reports to the effect that a past working group
chair described blacklisting as a potential consequence for member states who
failed to enforce their corporate foreign bribery laws. Rose, supra note 85, at
87–92.

159

See, e.g., Brown citing Oppenheim, supra note 42.

160

Braithwaite, ‘Rules and Principles: A Theory of Legal Certainty’, 48 Australian
Journal of Legal Philosophy (2002) 47.

161

Ibid., at 54.

162

See note 15.

163

See, e.g., Lord and Levi, ‘Determining the Adequate Enforcement of White-Collar
and Corporate Crimes in Europe’, in J. van Erp, W. Huisman and G. Vande Walle
(eds), The Routledge Handbook of White-Collar and Corporate Crime in Europe
(2015) 39; T. Halliday, M. Levi and P. Reuter, Global Surveillance of Dirty
Money: Assessing Assessments of Regimes to Control Money Laundering and Combat
the Financing of Terrorism (2014).

164

See note 157 above and associated text.

165

See also Lüth, ‘Corporate Non-Prosecution Agreements as Transnational Human
Problems: Transnational Law and the Study of Domestic Criminal Justice Reforms
in a Globalised World’, 12 Transnational Legal Theory (2021) 315, at 317–318.

166

Acorn, ‘Behind the SNC-Lavalin Scandal: The Transnational Diffusion of Corporate
Diversion’, 54 Canadian Journal of Political Science (2021) 892; Ivory,
‘Transnational Criminal Law or the Transnational Legal Ordering of Corruption?
Theorizing Australian Corporate Foreign Bribery Reforms’, in G. Shaffer and E.
Aaronson (eds), Transnational Legal Ordering of Criminal Justice (2020) 84.

167

The classic critique is Garrett, supra note 89; see also Arlen, supra note 94,
at 157–158.

168

OECD-WGB, United States, supra note 145, at 75.

169

Hock and David-Barrett, supra note 99.

170

Edelman, supra note 99, at 29.

171

See, e.g., Bianchi, ‘On Power and Illusion: The Concept of Transparency in
International Law’, in A. Bianchi and A. Peters (eds), Transparency in
International Law (2013) 1; Hovell, ‘Due Process in the United Nations’, 110
AJIL (2016) 1.

172

See generally G. Baars, The Corporation, Law and Capitalism: A Radical
Perspective on the Role of Law in the Global Political Economy (2019) at 2–3,
13; see also S. Tombs and D. Whyte, The Corporate Criminal: Why Corporations
Must Be Abolished (2015).

173

A.L. Newman and E. Posner, Voluntary Disruptions: International Soft Law,
Finance, and Power (2018), at 64–65, 72.

174

Ibid., at 98–100, 115–117.

175

Boister, ‘“Transnational Criminal Law”?’, 14 EJIL (2003) 953, at 955.

176

See, e.g., Financial Action Task Force, International Standards on Combating
Money Laundering and the Financing of Terrorism & Proliferation: The FATF
Recommendations, 16 February 2012, updated November 2023, available at
www.fatf-gafi.org; ‘G20 Anti-Corruption Resources’, UNODC, available at
https://www.unodc.org/corruption/en/tools-and-services/g20-anti-corruption-resources/by-thematic-area.html.

177

Ministry of Justice, The Bribery Act 2010: Guidance about Procedures which
Relevant Commercial Organisations can put into Place to Prevent Persons
Associated with them from Bribing (2011).

178

United States Sentencing Commission, Guidelines Manual (2023), ch. 8, para.
3E1.1.

179

US Department of Justice, Justice Manual (2018), title 9-28.000.

180

See further Halliday and Shaffer, ‘Transnational Legal Orders’, supra note 64,
at 37–39.


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