| The enactment of the FCPA and the formation of the OECD Anti-Bribery Convention created two historical events for theoretical analysis: because the FCPA unprecedentedly criminalized transnational bribery in 1977, its wisdom was initially questioned. Then, since the Convention endorsed the FCPA approach in 1997, academic focus was shifted to the practical effect of the Convention in controlling transnational bribery---which is also the topic of this study.;This study develops argument based on an awareness of the limitation of a popular methodology in current literature---the problem-solving paradigm. This paradigm is grounded in the rational-choice tradition, assumes signatories' enforcement of the Convention as resulting from their self-serving purposes, labels the current level of Convention enforcement as "ineffective-enforcement", and borrows solutions from conventional collective action theories to prescribe. This paradigm well explains why most signatories have brought few enforcement actions. Yet its excessive commitment to orthodoxies prevents scholars from grasping the uniqueness of the collaboration and prescribing successful solutions. Besides, it avoids explaining why some signatories have indeed enforced the Convention. A historical approach that draws causality from a process's historicity is thus proposed as a supplementary methodology.;This study analyzes signatories' compliance with the Convention by four steps: First, it explains a seemingly outdated but unexplained question---the dynamic of the institutionalization of the OECD anti-bribery collaboration, and finds that the central institutions did not result from signatories' trading off conflicting values and interests, but from their attempts to coordinate demands of different stakeholders within given institutional contexts.;Second, this study explains why most signatories tend to defect rather than faithfully enforce the Convention, following the logic of the problem-solving paradigm: destabilizing factors in the indigenous collaboration encourage defection in the first place, and the monitoring program in the collaboration fails to resolve these destabilizing factors in the second place. More fundamentally, the surreptitious nature of transnational bribery fails central monitoring---a conventional effective solution to collective action problems.;This study then formulates a three-level solution model to address the monitoring problem: first, this model encourages private sector actors to report clues of transnational bribery so as to resolve the lack of first-hand information. Second, given the weakness of private sector actors in collecting solid evidence, this model stresses the dominant role of national prosecutors in the home country of bribe-paying companies to conduct in-depth investigations. Third, given that prosecutors may shirk duty because of protectionism, this model suggests to authorize prosecutors in the home country of victimized competitors the right to monitor the investigation process.;Fourth, this study takes the US as an example to analyze the positive side of Convention enforcement. Given that FCPA enforcement is embodied in the SEC and the DOJ's independent performance of their own statutory duties, this study reviews variation in the SEC and the DOJ's enforcement efforts in past decades, and finds that this variation results from their adherence to their own missions in an evolving institutional context---which gradually incorporates their duties of enforcing the FCPA into their central missions. |
