The Fight Against Bribery of Foreign Public Officials Lessons by jolinmilioncherie


									The Fight Against Bribery
of Foreign Public Officials:
Lessons Learned by the
OECD and the IBA
Nicola Bonucci
co-Chair of the IBA Anti-Corruption Committee
and Head of the Legal Directorate, OECD, Paris
5th ICAC Symposium, Hong Kong, 9-11 May 2012

The views expressed are personal and do not necessarily represent those
of the OECD, the Parties to the OECD Anti-Bribery Convention or the IBA.
 The OECD Anti-Bribery Convention in a snapshot

• Signed in 1997, entered into force in February
• Number of Parties: 39 countries. All OECD
  countries plus some emerging economies (e.g
  Argentina, Chile, Brazil, Israel, Russia, South
  Africa – Colombia future 40th member)… and
  one day China, India ?
• More than 100 country reports adopted and
     The Convention: 2 main objectives

•    A legal one: The Convention requires Parties
    to criminalise and actively pursue the supply-
    side (i.e the active bribery of foreign public
    officials) and to introduce corporate liability for
    foreign bribery.
• An economic one: to establish a level-playing
  field and a fair and non-distorted competition in
  international business transactions.
What has changed with the Convention ?
        BEFORE                          NOW

• Bribery of foreign public   • All Parties to the OECD
  officials was an offence      Convention have
  only in the US                introduced the offence
• Bribes were tax             • Bribes are no more tax
  deductible in a number        deductible
  of OECD countries
                              • Negative effects of
• Transnational bribery         transnational bribery are
  was considered a              duly recognised and
  legitimate way to do          bribing is punished
      A tool, the monitoring process

• Two principles:
  – Examination that the national legislation
    corresponds to the commitments undertaken;
  – Examination that the legislation is effective
    and properly enforced.
• A specific body (the Working Group on Bribery)
  is entrusted to monitor the implementation of
  the Convention
     What does monitoring achieve ?

• Harmonisation of legislations;
• Builds confidence in the Convention;
• Allows countries to question each other’s track
  record in terms of enforcement;
• Constitutes an opportunity for systemic pressure
  and for name and shame when necessary.
              The Convention’s results

   As of March 2011 :

• 199 individuals and 91 entities have been sanctioned under criminal
  proceedings for foreign bribery in 13 Parties between the time the
  Convention entered into force in 1999 and the end of 2010.

• At least 54 of the sanctioned individuals were sentenced to prison
  for foreign bribery.

• A record amount of EUR 1.24 billion was imposed in combined fines
  on a single company for foreign bribery.

• Approximately 260 investigations are ongoing in 15 Parties to the
  Anti-Bribery Convention. Criminal charges have been laid against
  over 120 individuals and 20 entities in 5 Parties.
            How full is the glass ?

• 15 years after the entry into force of the
  Convention, major companies are still under
  investigations and/or prosecuted;

• New and more sophisticated schemes;

• The role of intermediaries.
The first results of the Foreign Bribery Impact study

• Scheduled for publication in 2012;
• First analysis of trends in finalised cases of bribery of
  foreign public officials in international business, some
  initial figures:
   – On average, bribes paid are equal to 8% of the
     contract price;
   – 64% of corrupt transactions involve the use of an
   – 46% of cases of foreign bribery involve bribes paid to
     officials in countries with a high or very high Human
     Development Index.
         The trends for 2012 and beyond
• The level of enforcement is at an all-time high and is likely to remain

• Multi-jurisdictional investigations are on the rise, an investigation
  on passive bribery in country A may lead to an investigation on
  active bribery in country B and vice versa.

•    Informal international cooperation will continue to improve,
    together with increased mutual legal assistance.

• Civil society and media are more and more aware – towards a zero

•   Peer review and peer pressure in the OECD will be maintained.
    Countries lagging behind will face an increasing questioning and
    pressure from other parties to the Convention. Other monitoring
    mechanisms like UN or OAS are speeding up.
           From enforcement to ownership...
            the IBA Anti-Corruption Strategy
In 2010 we took a sample of more than 700
lawyers in almost 100 jurisdictions who gave us
their views regarding perceptions and levels of
awareness of corruption in the legal profession.

The IBA’s October 2010 report Risks And Threats Of Corruption And The Legal
   Profession uncovered a number of thought provoking results:
•   Nearly half of respondents stated corruption was an issue in the legal
    profession in their own jurisdiction. The proportion was even higher –over
    70% in regions like CIS, Latin America, Africa and Eastern Europe.
•   30% of respondents recognised that they have lost business to corrupt firms who
    have engaged in international corruption.
•   More than a fifth of respondents said they have been approached to act as an
    agent or middleman in a transaction that could reasonably be suspected to involve
    international corruption.
•   Nearly a third of respondents said a legal professional they know has been
    involved in international corruption offences.
The IBA’s 2010 report - Summary of conclusions
IBA Anti-Corruption Strategy Website
IBA Anti-Corruption Strategy Website

         For further information regarding the strategy visit:
 Thank you for your attention



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