Volume 51

Ungagging the Whistleblower in Foreign Corruption Investigations: Turning International "Best Practices" Into Reality

by Jesse Van Genugten

Access to information drives successful enforcement of foreign anti-bribery laws. Whistleblowers, by providing intimate knowledge of the inner workings of a corporate entity, one suspected of wrongdoing, can serve to expose serious allegations of foreign bribery. This role is well-documented and championed by international best practices aimed at protecting vulnerable whistleblowers and encouraging substantive disclosures of illegal conduct. Nevertheless, potential informants can be silenced with the inclusion of gag clauses in employee contracts or the threat of financially ruinous litigation, nefarious corporate practices that must be condemned.

Complicating matters, however, is the following wrinkle: threatened whistleblowers can generally obtain legal recourse only in their country of residence, which often affords vastly different legal protections than the country investigating and prosecuting their employer’s misconduct. Unfortunately, the international best practices, in relying almost exclusively on voluntary legislative action, provide no concrete approach to reducing the financial and reputational harm faced by prospective whistleblowers.

Thus, it is necessary to reinforce international whistleblower best practices with measures aimed at limiting the force of employer threats. This paper argues that, in addition to the enactment and active enforcement of anti-retaliation provisions, authorities with considerable influence in this legal domain, including the United States, should penalize the use of gag clauses in employee contracts extraterritorially. Further, countries should provide mechanisms for confidential whistleblowing, set up public funding or legal aid for whistleblowers, consider a mechanism for attorney fee shifting to cover deterrent legal fees, and incorporate whistleblower rewards in any substantive enforcement action. Ultimately, these incremental changes will remove unnecessary obstacles to whistleblower disclosures and empower authorities tasked with eradicating foreign bribery.

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