
Corruption: The Enemy Within
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Amid several arguably central issues-- the control of economic crime, the protection of developing economies or those in transition--the ever present threat of corruption remains predominant. Corruption and associated abuses attack from within the integrity and thus the efficiency and efficacy of institutions, both in the public and private sectors.
In addition to the inevitable external implication, the consequences also occur within government or the enterprise in question. For this reason, the control of corrupt practices, more than any other threat, requires an integrated strategy involving both outward and inward-looking preventive and response measures.
This work addresses all aspects of the problem of corruption on a multidisciplinary basis and covers a variety of jurisdictions. Its thought provoking nature and the originality and timeliness of the topics discussed make this a work of prime interest to law enforcement officers, lawyers, and bankers.
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Content
- Cover
- Half Title Page
- Title Page
- Copyright Page
- Table of Contents
- Biographies of the Authors
- Introduction
- I. The Nature of the Problem
- 1. Corruption as Counter-culture: Attitudes to Bribery in Local and Global Society
- INTRODUCTION
- ATTITUDES TO BRIBERY IN DIFFERENT TRADITIONS AND SOME WORDS FROM THE PAST
- DESCRIPTIONS OF BRIBERY IN SOCIETIES IN TRANSITION: SOME WORDS FROM THE ACADEMICS
- ATTITUDES TO BRIBERY TODAY: WORDS OF THE PEOPLE AND THE MEDIA
- BRIBES AS A THREAT FOR THE FUTURE
- A CALL TO ACTION
- SUMMARY
- ANNEX: REFERENCES FOR QUOTATIONS IN BOXES 1 AND 2
- 2. The Crime of Corruption
- IS POLITICAL CORRUPTION GROWING?
- THE POLITICS OF CORRUPTION
- COMPARING CORRUPTION
- THE CONTROL OF SCANDAL AND CONTROL BY SCANDAL
- 3. Corruption in Small States: Case Studies in Compromise
- INTRODUCTION
- CORRUPTION AND ECONOMIC DEVELOPMENT
- ENTERPRISE, MARKET MODELS AND CORRUPTION
- Case 1: The Failure of the National Bank of Fiji - Reinterpreting Corruption
- Case 2: Bank Guarantees from Vanuatu - Disclosing and Decoding Corruption
- CORRUPTION AND CONTROL IN CONTEXT
- Identifying and Labelling Corrupt Relationships
- Relevance of Regulation Agencies
- Reliance on Commercial Viability Rather than Public Morality as a Measure of the Consequences of Corruption
- Globalizing the Context of Corruption Relationships
- II. Organized Crime and Corruption
- 4. Corruption and Organized Crime: A Means to an End
- LESSONS FROM ORGANIZED CRIME
- CORRUPTION AS A REQUIREMENT FOR ORGANIZED CRIME
- INTERNATIONAL RESPONSE TO ORGANIZED CRIME
- APPLICATION OF LESSONS TO THE CONCEPT OF CORRUPTION
- 5. Corruption and Organized Crime
- THE RELATIONSHIP
- LEGITIMATE CRIMES
- CONCLUSION
- III. Corruption in Public and Financial Life
- 6. Every Person Has a Price?
- INTRODUCTION
- FREDERIC WILLIAM TOKARS - A CASE STUDY OF CORRUPTION
- Drug Trafficking and Money Laundering
- RICO Enterprise Created
- Tokars Solicits Business
- Tokars Solicits Money Laundering Customers
- Tokars and 'The Parrot'
- Tokars and 'Deion's Club 21'
- Harris Enters the Enterprise
- Harris' Arrest - Tokars' Advice
- Mason, Tokars, and 'Diamonds and Pearls'
- Tokars introduces Lawrence to Mason
- Cline Receives Cocaine from Brown - 'The Phoenix Club'
- Brown's Arrest
- Atlanta House Clubs, 'Diamonds and Pearls', and Al Brown
- Sara Tokars Gets the 'Goods'
- Murder of Sara Ambrusko Tokars
- Tokars Meets Lawrence
- Tokars and Lawrence Become Partners
- Murder Scheme
- 'If Anything Should Happen'
- Reaction of Tokars
- 6 December 1992, Interview
- 20 December 1992, Interview
- Arrests of Lawrence and Rower
- CONCLUSION
- 7. Double Standards in Public Life: The Case of International Corruption
- INTRODUCTION
- CASE STUDIES
- INTERNATIONAL COOPERATION
- CONCLUSIONS
- 8. Breaking the Billion Dollar Barrier: Learning the Lessons of BNL, Daiwa, Barings and BCCI
- CAPITALIZING ON OUR STRENGTHS
- Controlling Systemic Risk
- Punishing the Perpetrator
- RECOGNIZING OUR WEAKNESSES
- Internal Controls
- The Will to Act Decisively
- Think Small
- Adapting to a Change in Culture
- Trust
- BEING AWARE OF EXTERNAL FACTORS
- Technology
- Cross-Border Information-Sharing
- Individual Motivation
- Funding
- Audit
- CONCLUSION
- 9. From Regulation to Deregulation to Re-regulation: Rhetorical Quicksand and the Construction of Blame in the US Savings and Loan Crisis
- OVERVIEW
- INTRODUCTION
- THREE ACCOUNTS
- Macro-Analytic Perspective
- Legal Perspective
- Personal Account
- ANALYSIS OF THE ACCOUNTS
- The Problem Stream
- The Policy Stream: The Available Solutions
- The Political Stream
- SUMMARY AND CONCLUSIONS
- REFERENCES
- 10. Private Risk, Trust, Money and Handling the Proceeds of Corruption: Steps towards an Ecology of Financial Systems Design
- SOME ECONOMIC APPROACHES
- CRIMINOLOGY, MORAL HAZARD AND CORRUPTION
- WHAT IS WRONG WITH THIS PICTURE? TRUST, MONEY AND CORRUPTION
- RISK, TRUST AND THE ECOLOGY OF FINANCIAL SYSTEMS DESIGN
- CONCLUSION
- IV. Controlling Corruption
- 11. Taking the Profit out of Corruption: A UK Perspective
- INTRODUCTION
- THE CONFISCATION SCHEME
- Investigation
- Preservation of Assets
- Realizable Property
- The Effect of a Restraint Order
- Repatriation
- Living and Legal Expenses
- Appointment of a Pre-conviction Receiver
- Disclosure Affidavits
- MAKING THE CONFISCATION ORDER
- Determining Benefit from Any Relevant Criminal Conduct
- The Amount That Might Be Realized
- Making the Confiscation Order
- Compensating Victims in Proceeds of Crime Cases
- Enforcement
- The Application
- Variation and Review of Confiscation Orders Downwards
- Effect of a Restraint Order on Assets Held Overseas
- 12. Taking the Profit out of Corruption: A US Perspective
- OVERVIEW
- US FORFEITURE LAWS
- PRETRIAL RESTRAINT
- REPATRIATION OF ASSETS
- ENFORCEMENT OF FOREIGN CONFISCATION ORDERS
- RESTITUTION
- CONCLUSION
- 13. Taxing the Proceeds of Corruption
- PROPERTY INTERESTS IN THE PROCEEDS OF CRIME
- MISAPPROPRIATED FUNDS
- TAXATION AND FORFEITURE
- PROBLEMS WITH THE TAXATION OF CRIME
- 14. The Foreign Corrupt Practices Act: An American Response to Corruption
- INTRODUCTION
- THE AMERICAN DOMESTIC ANTI-CORRUPTION RESPONSE
- The Law's Prohibitions
- Independent Counsel Law
- Its Use in Domestic Corruption Prosecutions
- Brief History
- THE UNITED STATES AND FOREIGN CORRUPTION BEFORE THE ACT
- The Reach of the Law
- The Extent of the Problem
- The American Response
- BREAKDOWN OF THE ACT'S PROVISIONS
- Accounting Provisions
- Bribery and 'Grease' Payments
- Affirmative Defences
- Penalties
- Advisory Opinions
- Enforcement
- PROBLEMS REMAINING WITH THE ACT
- INTERNATIONAL RESPONSE TO THE ACT AND TO BRIBERY
- International Reaction to the Act
- International Action
- THE ACT'S RECORD
- CONCLUSION
- 15. The United States Foreign Corrupt Practices Act as a Civil Remedy
- INTRODUCTION
- BACKGROUND AND OVERVIEW OF THE FOREIGN CORRUPT PRACTICES ACT
- The FCPA Accounting Provisions
- The FCPA Anti-Bribery Provisions
- Penalties
- ELEMENTS OF FCPA VIOLATIONS
- Accounting Provisions
- Record-keeping Standard
- Internal Controls Standard
- The Materiality Standard
- The Anti-Bribery Provisions
- The Corrupt Party: The Definition of 'Domestic Concern' and Public Company ('Issuer')
- The Medium of Payment: 'Anything of Value'
- Payments to Third Parties: 'Knowing' the Payment Will Be Made to a Foreign Official
- 'For the Purpose of Influencing' an Official Act or Decision
- 'Obtaining or Retaining Business'
- DEFENCES AND EXEMPT TRANSACTIONS
- Exempt Transactions
- Statutory Affirmative Defences
- Lawful Payments
- Reasonable and Bona Fide Promotional Expenses
- Rejected Proposed Defences: Business Courtesy and Due Diligence
- COMPLIANCE AND DUE DILIGENCE
- Written Policy
- Written Agreement
- Background Information
- Opinion of Counsel
- THE INTERNATIONAL DIMENSION
- V. International Initiatives
- 16. Corruption - A General Review with an Emphasis on the Role of the World Bank
- DIFFERENT PERSPECTIVES ON CORRUPTION
- CORRUPTION AS I SEE IT
- EFFORTS TO COMBAT CORRUPTION
- Economic Reform
- Legal and Judicial Reform
- Administrative (Civil Service) Reform
- Other Institutional Reforms
- Moral Reform
- International Measures
- THE WORLD BANK'S EFFORTS
- The Bank's Growing Concern with Corruption Issues
- Ensuring a Corruption-Free Institution
- Curbing Corruption Under Bank-Financed Loans
- Assisting Borrowing Members in Curbing Corruption
- CONCLUSION
- 17. Extraterritoriality and the Criminalization of Foreign Bribes
- POLICY CONSIDERATIONS
- Increased Effectiveness of Bribery Laws in the International Context
- Improved Governance of Multinational Companies
- More Even Playing Field in International Business Transactions
- Cultural Dogmatism and Cultural Insensitivity
- Interference in National Sovereignty
- Competitive Disadvantage to Corporations of National State
- The Prisoner's Dilemma
- Government Monopoly on Bribery
- UNITED STATES PARADIGM
- EXTRATERRITORIAL PRINCIPLES OF CRIMINAL JURISDICTION
- The Territorial Principle
- The Protective or Security Principle
- The Active Personality or Nationality Principle
- The Passive Personality Principle
- The Universality Principle
- INTERNATIONAL COOPERATION
- Criminal Mutual Assistance Treaties and Arrangements
- International Judicial Assistance in Civil Matters
- The 1970 Hague Convention
- Foreign Evidence Act 1994 (Cth)
- Evidence and Procedure (New Zealand) Act 1994 (Cth)
- Cooperation Between Courts in Insolvency and Bankruptcy Matters
- International Cooperation Between Regulators
- CONCLUSION
- 18. Beating the Shell Game: Bank Secrecy Laws and their Impact on Civil Recovery in International Fraud Actions
- CURRENT TOOLS OF INTERNATIONAL CIVIL DISCOVERY IN AMERICAN COURTS
- Letters Rogatory
- Consent Directives
- Subpoenas
- THE OPPORTUNITY A PARALLEL CRIMINAL PROSECUTION OFFERS A CIVIL PLAINTIFF
- Restitution Under the Victim and Witness Protection Act
- The Use of Adverse Inferences in a Civil Proceeding
- BANK SECRECY LAWS: ARE THEY WORTH THE COST?
- The Societal Costs Associated with Bank Secrecy Laws
- The Justifications for Bank Secrecy Jurisdictions and the Alleged Benefits that Flow from Them
- The Times Have Changed
- 19. Hong Kong Beyond 1997: The Importance of International Cooperation in the Fight Against Corruption
- INTRODUCTION
- 1997 - BACK TO THE FUTURE
- THE ICAC - A BRIEF HISTORY
- THE IMPORTANCE OF INTERNATIONAL COOPERATION IN THE FIGHT AGAINST CORRUPTION
- THE SCOPE FOR INTERNATIONAL COOPERATION - CONSTRAINTS AND OPPORTUNITIES
- BEYOND 1997 - BUSINESS AS USUAL
- 20. The Role of Interpol in Fighting Economic Crime and Corruption
- CORRUPTION - A TRANSNATIONAL CRIME
- ICPO-INTERPOL
- 21. The Fight Against International Corruption in the European Union
- INTRODUCTION
- EUROPEAN UNION INITIATIVES
- Two Draft MultiLateral Anti-Corruption Instruments on Active and Passive Corruption
- Draft Protocol to the Convention on the Protection of the European Community's Financial Interests
- Draft Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union
- General Considerations
- Corruption Offences Committed by or Against Members of the EC Institutions
- Corruption on Behalf of Businesses
- Jurisdiction
- International Cooperation in Criminal Matters
- Dispute Settlement and Preliminary Rulings
- CONCLUSION
- 22. Corruption: The Council of Europe's Approach
- INTRODUCTION - THE COUNCIL OF EUROPE
- CORRUPTION - THE PROBLEM
- CORRUPTION - A VARIETY OF APPROACHES
- THE MANY FACETS OF CORRUPTION
- THE PROVISIONAL DEFINITION ADOPTED BY THE COUNCIL OF EUROPE
- CONCLUSIONS
- Index
- Back Cover
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