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The OECD Anti-Bribery Convention’s Phase 4 Evaluation: An Overlapping?
11.07.2014
The following guest post is from Renata de Assis Calsing, a Financial Control Analyst for the Office of the Comptroller General of Brazil and Professor of the Catholic University of Brasília. Ms. Calsing received her Law PhD from Paris I University, Panthéon-Sorbonne. The opinions expressed in this post are those of the author in her individual capacity, and do not necessarily represent the views of the Office of the Comptroller General of Brazil.
(Ed. Note: This post represents the third in a series about the OECD Anti-Bribery Convention’s Phase 4 Evaluation. The first two posts can be found here and here.)
As posted here one of the most effective international legal instruments governing anti-corruption efforts is the OECD Convention against Foreign Bribery in International Business Transactions. The Convention establishes the Working Group on Bribery (WGB), which is responsible for monitoring the implementation of the Convention by States-Parties through a peer-review mechanism. In a follow up post, the question was raised: “How can the WGB move a further step forward in the evaluation of the OECD Convention implementation?” The author asked if Phase 4 Evaluations should address what States-Parties have done to sanction the demand side of foreign bribery cases.
As noted, there are some problems with this proposal. This approach would by definition fall within a country’s domestic anti-bribery efforts, even if some cases have foreign bribery components, which is arguably outside of the OECD Convention’s scope. Such an approach might also create an overlap with other anti-corruption conventions. Specifically, the United Nations Convention against Corruption (UNCAC) and the Inter-American Convention against Corruption (OAS) would be implicated, since they too have peer-review mechanisms in place.
This post considers the potential implications of an overlap.
Overview of Review Mechanisms
The OECD, UN and OAS Conventions have mechanisms for review of implementation that work in successive rounds. The WGB of the OECD is going through its third round of evaluation and it has already analyzed States-Parties´ progress and changes in domestic legislation, institutional frameworks, enforcement efforts and results in foreign bribery cases. The OAS mechanism (MESICIC) is now in its 4th round of evaluation. OAS countries must prepare annually a follow-up report indicating their efforts to comply with the Convention and the recommendations of previous rounds of evaluation. The UNCAC mechanism is still in its first round of evaluation (2010-2015). Because of the large number of UNCAC states-parties, countries’ evaluation reports are not discussed and approved in the plenaries. The analysis of the reports are restricted to the participating countries (2 evaluators and the one being analyzed) and each evaluated State chooses to have the full report or only the report’s executive summary published.
Further Considerations of a WGB Focus on the Demand Side of Bribery
There are three main implications if the OECD’s Phase 4 evaluation were to consider a country’s enforcement related to the demand side of bribery.
- Since the OECD Convention has a more homogeneous group of States-Parties than the other treaties and a very specific subject matter of review, the WGB may be able to effectively evaluate domestic efforts related to foreign bribery cases. The OECD Convention’s signatories are the 34 OECD member countries and seven non-member countries which represent many of the world’s most advanced economies, as well as emerging economies such as Mexico, Chile, Brazil, Russia, and Turkey. Of notable difference, the UNCAC and the OAS Convention have a more heterogeneous set of States-Parties and, as a result, their follow-up mechanisms allow room for considering parties’ special needs, particularly in relation to the Least Developed Countries members of the UNCAC.
- Even if the WGB scope happens to be broadened to include the demand side of foreign bribery, its focus of evaluation would still be more limited than the other two mechanisms presented here. Each review round of the UN and the OAS Conventions has a larger scope than the WGB peer-review rounds. Because there is a broader scope of evaluation, a wider range of different efforts of States-Parties is taken into consideration.
- The inclusion of a country’s domestic anti-bribery efforts in the OECD Convention would indeed create a repetition to States Parties of the work done pursuant to other mechanisms like the UNCAC and the OAS. To present the same or very similar information in different international forums could be costly and could limit State Parties’ interest in participating in peer-review mechanisms.
The opinions expressed in this post are those of the author in his or her individual capacity, and do not necessarily represent the views of anyone else, including the entities with which the author is affiliated, the author`s employers, other contributors, FCPAméricas, or its advertisers. The information in the FCPAméricas blog is intended for public discussion and educational purposes only. It is not intended to provide legal advice to its readers and does not create an attorney-client relationship. It does not seek to describe or convey the quality of legal services. FCPAméricas encourages readers to seek qualified legal counsel regarding anti-corruption laws or any other legal issue. FCPAméricas gives permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author and to FCPAméricas LLC.
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