International Business Transaction and the Law PDF
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Added on 2021-06-14
International Business Transaction and the Law PDF
Added on 2021-06-14
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Running head: INTERNATIONAL BUSINESS TRANSACTION AND THE LAWINTERNATIONAL BUSINESS TRANSACTION AND THE LAWName of the StudentName of the StudentAuthor Note
1INTERNATIONAL BUSINESS TRANSACTION AND THE LAWQuestion 6BackgroundIn this factual scenario states that a building contract for building runways at KamariaInternational Airport needs to be obtained. The airport is a government subsidiary. The Board ofDirectors is controlled by the Minister of Airports and it is comprised of members of his family.The Kamarian government has enacted an anti-bribery legislation but its true legislative intentwas compliance with international conventions as it is not strictly enforced in the Kamarianjurisdiction. The following paragraphs will identify issues with the various transactions discussed(if any) in light of application of Australian bribery legislation to such transactions.Applicable RulesAustralia is a ratifying state to the Organization for Economic Co-operation andDevelopment’s (OECD) Convention on Combating Bribery of Foreign Public officials inInternational Business Transactions in 1999 and is a part of the United Nations ConventionAgainst Corruption (UNCAC), 2003 (Spahn, 2013). These treaties declare bribery of foreignofficials as criminal offences and ratifying states must comply with this legislation (Lord, 2016).These treaty obligations which Australia is subject to has been given legislative effect throughthe enactment of Division 70 of the Criminal Code Act, 1995 which makes bribery (defined asproviding a benefit that is not legitimately due to) of foreign officials to obtain a businessadvantage or business as provided for in Section 70.2 (1) of the act (Deming, 2014). The benefitin question is not strictly restricted to property but can be an advantage of any kind. Section 70.2also has extra-territorial jurisdiction and does not only apply when such a transaction happensinside the territorial jurisdiction of Australia but also when it happens outside the jurisdiction if it
2INTERNATIONAL BUSINESS TRANSACTION AND THE LAWis by a person who is an Australian citizen or by a corporation functioning within the jurisdictionof Australia. Section 70.1 (1A) states that such a transaction would constitute an offence even ifthe purpose of the transaction is not fulfilled (Thompson, 2013).In such a case the bribery of the officials would be:An official or an employee of the foreign government body.A member of any of the wings of the government: Executive, legislature and judiciary.A person who performs official duties as per the law of the foreign country.An official or an employee of a public international organization (a)In case where specifications relating to the runway are not given till a “location fee” ispaid to an official of the Department of Airports when these specifications are supposedto be free of cost. Under these circumstances such a transaction would be considered asbribery of a foreign official however if the amount paid is a minor amount it would beconsidered a facilitation payment which is a defense as stated by the act at Section 70.4.In this case the location fee to be paid to the official is AUD $100 and this would beconsidered a minor amount (Beasley, 2015). Thus such a payment would not beconsidered a bribe and would not attract criminal liability as prescribed under the act.(b)If the transaction consists of paying a consultation fee to the Minister of Airports’ cousinan amount to the tune of AUD $200,000 and it is known that the amount would go to theMinister of Airports and the Board of directors of Kamaria International Airport is asubstantial amount and cannot be considered a facilitation fee as envisaged in Section70.4 of the Criminal Code Act, 1995 (Mitchell, Merrington & Bell, 2014). This is alsonot a benefit that is legitimately due to the Minister of Airports and the Board of KamariaInternational Airport thus this would comprise an act of bribery. It may be argued that the
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