Should the WTO Outlaw Transnational Bribery?

Unlike other international organizations, the World Trade Organization (WTO) has not passed measures that directly address transnational bribery. This is the case despite the fact that transnational bribery significantly harms international trade. Almost 20 years ago, then-U.S. Trade Representative Mickey Kantor described corruption as a “barrier to trade” and advocated more action on corruption through the WTO system. Although those proposals went nowhere at the time, prominent scholars continue to make a strong case in favor of using the WTO to directly address matters of bribery and corruption, either by passing provisions that directly outlaw bribery or requiring WTO Member States to sign a declaration against corruption.

Despite the seriousness of the corruption problem and its adverse impact on international trade, these proposals are misguided. Trying to use the WTO system to combat corruption would be redundant, ineffective, and expensive.

The basic problem is that the WTO system, and in particular the Dispute Settlement Body (DSB), is not well-designed for dealing with a problem like bribery.  There are several reasons for this:

  • First, the DSB only allows for Member States to sue other Member States; individuals and firms cannot bring WTO complaints directly, nor can they be directly sanctioned. This means, for example, that a firm that bribes a customs official to move goods between national borders more expediently cannot be penalized by the WTO. At most, the firm could request his or her country to file a case against the bribe-requestor’s country.
  • Second, bringing a case at the DSB is very expensive and generally only happens when there are good political and/or economic reasons to do so. So, even if the DSB were empowered to sanction states that failed to prevent or address bribery, this mechanism is quite unlikely to be used, because it would be quite unusual that the existence of bribery would justify this expense unless the bribes in question were extraordinarily large or frequent. Even then, a complaining Member State would not be able to recoup damages, as the WTO does not award damages but rather authorizes retaliation by the injured state if the offending state fails to come into compliance.
  • Third, the WTO does not have sufficient resources to add trade-related bribery to its portfolio. The WTO’s staff is comprised of experts in international economic law, not white-collar crime, and it doesn’t have extensive fact-finding powers. This is well illustrated in EC-Selected Customs Matters, in which the US challenged Europe’s system of customs for due process violations related to the EU’s customs administration. The Appellate Body stated that it did not have enough facts on the issue to decide on the claim. Clearly, major structural changes would be needed if the WTO were to add an anti-bribery initiative to its agreements.

So it’s unlikely that adding anti-bribery to the agenda of the WTO and the DSB would be very effective. And trying to get the WTO to address bribery might be affirmatively harmful. Not only would adding anti-corruption to the WTO’s portfolio divert resources from the WTO’s primary purpose of regulating the liberalization of trade, but it would set a precedent for expanding the WTO’s mandate to include other important issues that affect trade but are not explicitly covered by the WTO, including currency fluctuations.  This risks diluting the effectiveness of the WTO in its primary mission, in particular given the already complex nature of the work carried out by the WTO and its meager staff.

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