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OECD Anti-Bribery Convention
Bribing a foreign public official is a crime in the
countries that have ratified the
OECD Convention on Combating
Bribery of Foreign Public Officials in International Business
Transactions. The Convention is the first legally binding
international instrument that aims at combating bribery and through
this, protecting fair competitiveness in international transactions.
It entered into force in 1999 and has been implemented in all 30
OECD Member countries as well as in seven non-member countries
(Argentina, Brazil, Bulgaria, Chile, Estonia, Slovenia and South
Africa).
The Convention focuses exclusively on the
supply-side of the bribery of public foreign officials and sanctions
for such activity. The Parties to the Convention must put in place
legislation that criminalises bribery of a foreign public official
as well as complicity in bribery, including incitement, aiding and
abetting, or authorisation of a bribery act (“bribery” and “foreign
public official” are defined broadly). Criminal penalties must be
effective, proportionate and dissuasive and can be combined with
additional civil or administrative sanctions. In case of legal
persons not subject to criminal penalties, monetary sanctions can
take place. According to the Convention, the bribery of a foreign
public official shall also be deemed to be included as an
extraditable offence under the laws of the Parties and the
extradition treaties between them. In order to conduct all necessary
criminal investigations, the countries that are Party to the
Convention must provide prompt and effective legal assistance to
each other (Mutual Legal Assistance).
Implementation of the Convention is supported
through monitoring and surveillance procedures that are carried out
by the OECD Working Group on Bribery, made up by all Parties.
Assessments focus on the adequacy of countries’ legislation to
implement the Convention (phase 1) as well as the effectiveness of
the application of the legislation (phase 2). Phase 2 includes
country visits in which a team of examiners meets with government
representatives as well as with civil society and private sector
representatives. The evaluation system includes both self-evaluation
(countries respond to a questionnaire) and mutual evaluation (each
country is examined in turn by the Working Group, with teams made up
of members from different participating countries). For each country
reviewed, the Working Group adopts and publishes a report which
includes an evaluation of the country's performance. This report is
published on the OECD website. The OECD website also comprises
information about the implementing legislation in all states that
are party to the OECD convention.
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UN Convention against Corruption
The UN Convention (UNCAC) came into force in 2005 and as of July
2007, UNCAC has 140 signatories and 94 ratifications. The UNCAC
seeks to prevent corruption and includes measures to this effect,
including model preventive policies that are directed at both the
public and private sectors. It further seeks to cover detection and
sanctioning and also promotes transparency and technical assistance.
As to prosecution, the Convention requires countries to establish
criminal and other offences to cover a wide range of acts of
corruption, if these are not already crimes under domestic law. The
UNCAC covers a wide range of offences including bribery, domestic
and foreign; embezzlement; trading in influence; concealment and
laundering in the proceeds of corruption. It also provides a
framework for criminalising bribery in the private sector and calls
for measures to improve business integrity. Offences committed in
support of corruption, including money-laundering and obstructing
justice, are also dealt with. A significant feature of the
Convention is that it recognises the need for shared
responsibilities between law enforcement agencies of countries in
cases of cross-border corruption activities. They include
requirements that states parties consider joint investigation, the
transfer of criminal proceedings and special investigative
techniques. Asset-recovery has been stated explicitly as a
fundamental principle of the Convention. The Convention is a mixture
of mandatory and discretionary provisions. Implementation is to be
carried out under the auspices of the Conference of Parties to the
Convention that is required to meet regularly and review
periodically the implementation of the Convention by State Parties.
They are also required to cooperate with relevant international and
regional organizations and mechanisms and non-governmental
organizations in this field. With respect to technical assistance,
the convention addresses the need for “enhanced financial and
material assistance” to developing countries to help them implement
the Convention.
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Inter-American Convention against Corruption
Adopted in 1996, the OAS Convention represents regional consensus
about what states should do in the areas of prevention,
criminalisation, international cooperation and asset recovery. The
Convention has been ratified by all members of the OAS. It covers
corruption in the public sector, both on demand and supply. It gives
a wide and inclusive interpretation to what constitutes “corruption
offences” including bribery, domestic and foreign; illicit
enrichment; money laundering and concealment of property. Measures
adopted to curb bribery include preventive measures (creating and
enforcing codes of conduct), criminalisation and regional assistance
cooperation measures, as well as provisions on recovery of assets.
Obligations towards the Convention are a mixture of mandatory and
discretionary provisions. For monitoring, a committee of experts has
been established that is to conduct technical analysis of the
implementation of the Convention by parties.
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Council of Europe Conventions
The EU has two binding policies against corruption. The
Council of
Europe Criminal Law Convention was adopted in 1998. It represents a
European regional consensus on what states should do in the areas of criminalisation and international cooperation with respect to
corruption. The Convention covers the public sector and private
sector (private-to-private) corruption and covers a broad range of
offences including bribery (domestic and foreign), trading in
influence, money laundering and accounting offences. Penalty ranges
from criminalisation to recovery of assets, with regional
co-operation. Chapter II, Article 2 of the Convention requires each
signatory to implement legislation to criminalize the promising or
offering of any undue advantage to any of its public officials for
him or her to act or refrain from acting in the exercise of his or
her functions. Article 3 of that chapter requires legislation to
criminalise the request or receipt by any public official of any
undue advantage for similar actions. Article 5 of the same chapter
covers bribery of foreign officials and states: “Each Party shall
adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law the conduct as
referred to in Articles 2 and 3, when involving a public official of
any other State.”
The
Council of Europe Civil Convention was adopted
in 1998 and came into force in 2003. It is the first attempt to
define common international rules in the field of civil law and
corruption. In particular, it provides for compensation for damages
as a result of acts of corruption. While it also covers the public
and private sector, a broad scope is given to the Convention
covering the "requesting, offering, giving or accepting of a bribe
or any other undue advantage or the prospect thereof". Civil law
remedies for injured persons include compensation for damage from
corruption; invalidity of corrupt contracts; whistleblower
protection. The monitoring mechanism is the same as adopted for the
Criminal Convention. The Convention calls for mandatory provisions
with no reservations allowed in respect of any provision of the
Convention.
GRECO (Group of States against Corruption) is the
monitoring mechanism that aims through a process of mutual
evaluation and peer pressure at monitoring the compliance of states
with their undertakings in the field of corruption, including the CoE Criminal and Civil Law Conventions. As of 6 July, 2004, 38
states including the United States had joined. GRECO monitoring
comprises of a “horizontal” evaluation procedure (all members are
evaluated within an evaluation round) leading to recommendations
aimed at furthering the necessary legislative, institutional and
practical reforms and a compliance procedure designed to assess the
measures taken by its members to implement the recommendations. The
Criminal Convention is mostly binding with some provisions for
making specified reservations.
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South African Development Protocol against Corruption (SADC)
This protocol was adopted in 2001 by all 14 SADC
members. It provides both preventive and enforcement mechanisms. The
purpose of the Protocol is (a) to promote the development of
anti-corruption mechanisms at the national level (b) to promote
cooperation in the fight against corruption by state parties and (c)
to harmonise anti-corruption national legislation in the region.
Preventive measures include the development of a code of conduct for
public officials, transparency, and establishment of anti-corruption
agencies. In line with the OECD Convention, the Protocol
criminalises the bribing of public foreign officials. It also
addresses the issue of money laundering by allowing for seizure of
the proceeds of the crime, thereby making it more difficult to
benefit from proceeds of corruption. The Protocol also sets out an
implementation mechanism.
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African Union Convention on Preventing and Combating Corruption
Adopted in 2003, this legally binding convention has been ratified
by 53 African countries. It covers the public and the private
sector. Offences covered are bribery (domestic or foreign),
diversion of property by public officials, trading in influence,
illicit enrichment, money laundering and concealment of property.
All provisions are mandatory including those on private to private
corruption. The Convention provides for prevention, criminalisation,
regional cooperation and mutual legal assistance as well as the
recovery of assets. The follow-up mechanism provided for in Art. 22
calls for an Advisory Board which has broad responsibilities for
promoting anti-corruption work, collecting information on corruption
in Africa, developing methodologies, advising governments,
developing codes of conduct for public officials, and building
partnerships. In addition it is required to submit a report to the
Executive Council on a regular basis on the progress made by each
State Party in complying with the provisions of the African Union
Convention. States Parties are required to report to the Board on
their progress in implementing the Convention on an annual basis.
They are also required to ensure and provide for the participation
of civil society in the monitoring process.
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World Bank Anti-Corruption Strategies
The Bank views corruption as an outcome of poor governance aims to
help develop capable and accountable states and institutions that
can devise and implement sound policies, provide public services,
set the rules governing markets, and combat corruption, thereby
helping to reduce poverty. Bank Group activities in the areas of
governance and anti-corruption fall into three main areas:
preventing fraud and corruption within bank-financed projects,
helping countries in their efforts to reduce corruption by advising
on economic policy and other reforms and strengthening institutional
capability; and adding voice and support to international efforts,
including OECD's efforts, to reduce bribery and corruption.
The World Bank recently moved to a new two-tier
sanctions management. The first step is conducted by the respective
Evaluation and Suspension Officer (ESO), who shall determine: (1)
whether the evidence submitted by the Department of Institutional
Integrity (INT) in a proposed Notice of Sanctions Proceedings is
sufficient to support a finding that a respondent engaged in any
corrupt, fraudulent, coercive, collusive or obstructive practice in
a World Bank Group project, or violated a material term of
the Voluntary Disclosure Program (VDP) Terms and Conditions; and (2)
whether the respondent should be temporarily suspended from bidding
on Bank-financed contracts pending the final outcome of the
sanctions process. In addition, the ESO will recommend a sanction to
be imposed on the respondent, which would become effective only if
the respondent elects not to challenge the allegations against it by
appealing to the Sanctions Board. In the second part of the two-step
process, the Sanctions Board members will review and make final
decisions regarding sanctions cases when a respondent contests the
allegations and/or the decision of the respective Evaluation and
Suspension Officer of the World Bank Group. More information about
the World Bank’s sanctions management can be found on the Ban’s
website (http://www.worldbank.org/sanctions).
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