Kevin E. DavisRead PDFRead PDF
Treaties aimed at preventing cross-border harm frequently regulate states’ law enforcement practices. The interpretation of these “enforcement obligations” can be challenging because the relevant provisions tend to be vague and heterogeneous. This article offers a theory of both why states agree to enforcement obligations and how those obligations ought to be interpreted. The thesis is that states are primarily concerned about under-enforcement, discriminatory enforcement or concealed enforcement and so enforcement obligations contained in treaties should, with careful attention to textual evidence of the parties’ specific purposes, be interpreted to address those concerns. These claims are illustrated through a case study of the enforcement obligations found in the OECD Anti-Bribery Convention, which, among other things, prohibit consideration of “national economic interests” in the course of investigation or prosecution of foreign bribery. The case study includes a discussion of whether Canada’s handling of the SNC-Lavalin case violated the Convention.