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Remarks by Richard Murray
Published online by Cambridge University Press: 28 February 2017
Abstract
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- Type
- Sensitive Payments Abroad: International and Domestic Aspects
- Information
- Copyright
- Copyright © American Society of International Law 1977
References
1 Marlowe, The Jew of Malta, IV, 1.
2 In many countries, such payments are forbidden under laws which are respected and enforced; in many they are not. Their status is therefore ambiguous.
3 Former Attorney General Edward H. Levi recently went a good deal further when he said:
For us to consider all the gifts [to public officials] in the same way one considers those which are given for base or illegal purposes, and to equate actions done with honest intent with those which are mendacious and mean, can only in the end protect the venal by disparaging the innocent.
One wonders what this means.
4 To paraphrase Churchill, these fellows (the politicians) are giving bribery a bad name.
5 This does not mean that they would approve of questionable payments in their own countries. In the United Kingdom, for example, such payments are nearly unthinkable; but that does not mean that a British businessman would hesitate in making them, if useful, elsewhere.
6 The SEC may err in its assumption. In a recent speech before the International Club of Los Angeles, Professor Peter Nehemkis of the University of California at Los Angeles said:
In passing, I might mention that Professor Jacoby, Professor Eells, and I were skeptical of the validity of the SEC's claim that investors are concerned over the making of overseas payments. To test this hypothesis we selected five U.S. corporations whose overseas payments were substantial and were subjected to intense media publicity. These selected companies were: Exxon, Gulf, Lockheed, Northrop and United Brands. Our analysis showed that investors did not make any significant disposal of their stocks on learning of the overseas payments by the managements of the selected five companies. Indeed, investors were so little concerned that, during the week of March 1, 1976, at the height of the publicity of Lockheed's massive payoffs, the stock actually rose three points!
7 The political furor generated in some countries over recent revelations seems to have arisen not so much from surprise at the fact that money was changing hands as from embarrassment that the matter was being reported, with names and numbers for all to see. Where the press has been subject to effective governmental control, and where the names of the recipients have not been made public, all has remained quiet.
8 Where, as is frequently the case, the agent's fee is simply added to the purchase price, the cost is borne by the customer.
9 Ordinarily the names of the overseas recipients need not be revealed and international incidents thereby avoided. Efforts by the SEC to publish such names unearthed in enforcement proceedings have ordinarily been enjoined by the courts.
10 The ex post facto clauses (U.S. Const., Art. I, Sees. 9, 10) apply only to legislation and have been construed to apply only to criminal matters. But see Ogden v. Saunders, 12 Wheat (25 U.S.) 213, 286 (1827).
11 Jones, Indorsee v. Le Tombe, 3 Dall. (3 U.S.) 384, 388 (1798) (emphasis in original).