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The OECD Anti-Bribery Convention’s Phase 4 Evaluation: Suggested Areas of Focus
7.11.2014
One of the central legal instruments governing modern anti-bribery efforts is the OECD Anti-Bribery Convention. The Convention, which entered into force in 1999, establishes legally binding standards to penalize bribery of foreign public officials in international business transactions and provides measures to make these commitments effective. Currently, the 34 OECD member countries and seven non-member countries – Argentina, Brazil, Bulgaria, Colombia, Latvia, Russia, and South Africa – have adopted the Convention (see ratification status here).
One of the key features of the OECD Anti-Bribery Convention is the peer review mechanism set forth in Article 12, in which parties are required to “co-operate in carrying out a programme of systematic follow-up to monitor and promote the full implementation” of the Convention. Peer-reviews have been active and certain steps can be taken in cases of continued failure by a country to adequately implement the Convention. Countries’ implementation and enforcement of the OECD Anti-Bribery Convention is monitored by the OECD Working Group on Bribery (WGB) through a rigorous oversight system in which parties participate both by being evaluated and by evaluating other countries’ compliance with the Convention and related documents.
The OECD monitoring takes place in three phases (all monitoring reports are available here). Phase 1 evaluates country’s national legislation to determine its conformity with the Convention. Phase 2 evaluates the structures in place to enforce these laws and assesses countries’ practical application of the legislation. Phase 3 focuses on enforcement of the Convention and concentrates on three pillars: i) the progress made by Parties to the Convention on weaknesses identified in Phase 2; ii) issues raised by changes in the domestic legislation or institutional framework of the Parties; and iii) enforcement efforts and results.
The peer review is permanent and Phase 3, which is expected to be completed in mid 2015, should be followed by a Phase 4. Discussions about the characteristics of Phase 4 are starting to take place. To contribute for the debate, below I offer some factors for consideration in Phase 4.
Continue to actively look at pillars of Phase 3. OECD monitoring should continue to look at the pillars of Phase 3, since they are essential to the effectiveness of the Convention. As the Convention matures, it will continue to be important to give particular focus to enforcement efforts and results.
The OECD monitoring process has been one of the driving forces behind many anti-corruption efforts throughout the world and should continue to be vigorous. As stated by Nicola Bonucci, OECD Director for Legal Affairs and the coordinator for accession, in the second edition of the book The OECD Convention on Bribery: a commentary, “to soften the monitoring put in place would be a terrible mistake and all good work under undertaken by the WGB in the last fifteen years would be lost in only a few months.”
Verify difficulties faced in investigations and enforcement actions. Another area that the WGB may consider for Phase 4 is the reason why actual investigations and enforcement actions have failed. Some Parties to the OECD Convention have started investigations and/or enforcement actions that ultimately ended with no sanctions. In some cases this may have happened because no crime occurred. Some might have been thwarted by difficulties inherent to proving foreign bribery cases. But, in other instances, the outcome may be the result of other systemic issues, like a short statute of limitation or lack of expertise of enforcement authorities. Once identified, such flaws could be addressed in the recommendations incorporated in the final country reports.
Extend on-site visits. On-site visits by lead examiners and the OECD Secretariat are an effective way of obtaining information about enforcement efforts, results, and challenges. In these visits, reviewers have the possibility to meet with authorities responsible for applying the law, private sector representatives (including companies and legal practitioners), and civil society and scholars. In Phase 3, on-site visits are normally conducted over three-day periods. The WGB could consider extending the length of these visits. Adding a few days would not have a significant impact on budget, preparation needs, logistics, or disruption for those involved. And it would add much value to the review, allowing for deeper discussions and more first-hand feedback about relevant topics.
Look at local matters involving foreign bribery. The WGB may want to consider efforts by Convention state parties to sanction local public officials involved in foreign bribery cases, though this issue is complex for many reasons, which will be explored in a future post.
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Post authored by Carlos Henrique da Silva Ayres, FCPAméricas Contributor
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