[1]The following guest post is from Tatiana Petry, a Financial Control Analyst for the Office of the Comptroller General of Brazil. Ms. Petry received her master degree from Georgetown University’s Law Center. The opinions expressed in this post are those of the author in her individual capacity and do not represent the views of the Office of the Comptroller General of Brazil.
How can the Working Group on Bribery (WGB) move the OECD Convention evaluation process forward? As discussed here [2], the Phase 1 evaluation analyzed local legislation conformity with the Convention. Phase 2 assessed the structures in place to enforce these laws and the ways in which they hey have been applied. And Phase 3 focused on enforcement of the Convention, looking for results, as well as progress made by States Parties with respect to weaknesses identified in the previous phases.
But what could be the role of the Phase 4 evaluation when the application of the Convention’s pillars has already been assessed? Above and beyond continued enforcement reassessment, should the WGB add new elements to the analysis? The purpose of this post is to discuss possible paths forward in the OECD Convention’s Phase 4 evaluation, as well as challenges that may arise.
To begin, enforcement of the Convention is undoubtedly an issue that should be reassessed in Phase 4. The WGB still has much work to do on enforcement of the Convention, which has so far been considered low among States Parties. According to the Working Group on Bribery [3] (WGB): Annual Report on Activities Undertaken in 2012, few signatories to the Convention have been able to sanction or acquit individuals and companies for foreign bribery. Transparency International (TI) publishes annually an independent report on the OECD Convention’s enforcement, with a broader analysis than the one adopted by the WGB, covering investigations, commenced cases as well as convictions. TI`s 2013 Progress Report [4] makes evident that enforcement has been unbalanced among States Parties. Only eight countries (United States, Germany, the United Kingdom, Switzerland, Italy, Australia, Austria, and Finland), representing 32.3% of world exports, actively or moderately enforce the OECD Convention. The other 30 countries analyzed in the report, which all together represent 37.12% of world exports, are deemed to have limited, little or no enforcement.
However, beyond enforcement reevaluation, should the WGB also analyze in Phase 4 what countries have done to sanction their own public officials involved in foreign bribery cases? This would constitute a more comprehensive review of enforcement. Assessing the actions taken to sanction local corruption related to foreign bribery cases may indeed be relevant, since States Parties to the Convention have been mentioned on the demand side of many U.S. Foreign Corrupt Practices Act (FCPA) cases like HP-Hewlett-Packard Company (Russia, Mexico and Poland), Eli Lilly and Company (Russia, Poland and Brazil), Stryker Corporation (Mexico, Poland, Greece and Argentina) and Siemens (Mexico, Greece, Argentina, Russia, Germany and Italy). Broadening the analysis in this way would represent an important step forward toward a more comprehensive fight against foreign bribery and a broader view of the role of the Convention. This new perspective may give some countries more room for action and greater ability to have their efforts against the demand side of foreign bribery cases appropriately recognized.
In the enforcement evaluation, the WGB could require sanctions against local public officials to be coupled with legal assistance among Parties involved, thereby making domestic enforcement of foreign bribery cases not simply a local matter. This approach would bring a new perspective to the fight against foreign bribery. It would encourage coordinated efforts among enforcement officials to sanction both the demand and supply side of foreign bribery cases. It might also create additional incentives for countries to cooperate, as Parties on both sides of the foreign bribery case become increasingly interested in cooperation. This may ultimately result on the strengthening of the OECD Convention.
At the same time, this may not be a simple step. Assessing the steps that countries on the demand side take to sanction their public officials is currently not clearly within the scope of the Convention. It may require an amendment that is approved by the States Parties’ legislative power. Another possibility would be for interested countries to provide information on a voluntary basis, as already happens with respect to sanctions for offenses associated with foreign bribery, like money laundering and accounting. Only five countries provided the extra information in the WGB: Annual Report on Activities Undertaken in 2012 (Australia, France, United Kingdom and United States).
Another consideration is the fact that other anti-corruption conventions already assess enforcement against the demand side of foreign bribery cases. Therefore, broadening the scope of the OECD Convention may create additional obligations for States Parties that are also signatories to the United Nations Convention against Corruption or the Inter-American Convention against Corruption to provide the same information, just in different forums. A future post will further discuss the different perspectives of these anti-corruption conventionsand will consider whether they implicate an overlapping of evaluation efforts.
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