Manus manum lavat: can corruption be considered a state-imposed trade barrier?

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The article examines a tendency to broaden the scope of the “trade barrier” definition in international trade law via inclusion of anti-corruption provisions. Currently free trade agreements of the third generation (meaning the Trans-Pacific Partnership Agreement and post-TPP treaties) tend to incorporate provisions entailing certain anti-corruption obligations for state parties of such free trade agreements within the framework of their international trade law responsibility. Supporters of such inclusions argue that corruption directly correlates with the level of investment and trade attractiveness of a state. Accordingly, corruption can be regarded as a trade barrier imposed by a state on its own behalf (“publicly”), which in turn raises the issue of the state’s responsibility for imposing such barriers. In order to examine this issue, the article examines the currently applied anti-corruption standard in international law, including the law of the World Trade Organization. The article refers to economic data and statistics which show the lack of direct correlation between corruption existing in a state and its positioning in terms of trade and investment attractiveness. The author believes that there is not sufficient economic data which would justify the inclusion of corruption into the scope of international trade law. The corruption phenomenon is also studied in terms of its falling within the definition of a traditional trade barrier. The author believes that a trade barrier is characterised by two key elements, specifically its negative impact on trade and its public nature, i.e., being imposed on behalf of a government. Corruption is hard to fit under either of the mentioned criteria. The article also provides an overview of the existing international law framework for anti-corruption, reflected by the de minimis principle. This principle means that states are obliged under international law to criminalize a certain amount of actions which are regarded as corruption, thus forming a benchmark for a possible stricter regulation by certain states; implementation and procedural matters staying within the national authority and are not governed by international law. It is notable that international law does not impose international responsibility on states for corrupt actions of particular officials — they are regarded as individual actions. Following this logic the article draws attention to anticorruption provisions in the third generation FTAs, such as the TPP and the USMCA, and compares such provisions with the existing national framework in the United States, which is argued to have directly influenced the logic of the FTAs concerned. Generally the article concludes that the inclusion of anticorruption provisions in the scope of international trade law is not supported either economically or legally (having recourse to the existing standard in international law) and, moreover, this tendency is not likely to become universally acceptable.

About the author: Vladimir Trofimchuk – LL.M. (University of Cambridge), Advisor on International Affairs to Deputy Minister of Transport of the Russian Federation, Former Counselor at the Trade Policy Department, Eurasian Economic Commission, Moscow, Russia.

Citation: Trofimchuk V. (2020) Ruka ruku moet: mozhno li korruptsiy priznavat torgovym bar'erom so storony gosudarstva? [Manus manum lavat: can corruption be considered a state-imposed trade barrier?]. Mezhdunarodnoe pravosudie, vol.10, no.3, pp.118–137. (In Russian).

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