IMPLEMENTATION OF THE OECD ANTI-BRIBERY CONVENTION SHARING EXPERIENCES FOR IMPLEMENTING UNCAC ARTICLE 16

Patrick MouletteHead, OECD Anti-Corruption Division

6th Conference of the States Parties to the United Nations Convention Against Corruption, St. Petersburg, Russia

The views expressed in this presentation do not necessarily represent those of the OECD Member countries or States Parties to the OECD Anti-Bribery Convention.

• The OECD Anti-Bribery Convention

• Monitoring implementation of the Convention – the OECD Working Group on Bribery

• Phase 3: Cross-cutting issues for implementation

• Key facts

Overview

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• 1977 US Foreign Corrupt Practices Act (FCPA)

• 1997: OECD Anti-Bribery Convention adopted

• 1999: Entry into force of the OECD Anti-Bribery Convention

• 1999: OECD Working Group on Bribery Phase 1 evaluations begin

• 2002: OECD Working Group on Bribery Phase 2 evaluations begin

• 2005: Entry into force of the UNCAC

• 2010: First session of the UNCAC Implementation Review Group; OECD Working Group on Bribery Phase 3 evaluations begin

• 2015: OECD Working Group on Bribery Phase 4 evaluations begin

• 16 March 2016 Ministerial Meeting on the OECD Anti-Bribery Convention

OECD Anti-Bribery Convention in Context

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Phase 1• Review of legal framework and implementing legislation• Peer review by experts from two examining countries

Phase2

• Review of legislative and practical implementation and the efficacy of institutional framework• On-site visit with government, parliamentarians, judiciary, legal and accounting professions,

private sector, media and civil society

Phase 3

• Focus on enforcement and cross-cutting issues• On-site visit• Current phase

Phase 4

• Focus on enforcement and cross-cutting issues• On-site visit• Next Phase

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Peer review by the OECD Working Group on Bribery

Challenges: – Definition of foreign public official (as

highlighted in the UNODC State of Implementation Report).

– Liability of intermediaries.– Low prioritisation of foreign bribery

investigations and prosecutions.– Inadequate resources and capacity for

law enforcement.– Only 17 out of 41 WGB member

countries have ever successfully concluded a foreign bribery case.

Solutions:– Biannual Meetings of Law Enforcement

Officials from Parties to the Convention– Launch of Global Network of Law-

Enforcement Officials against Corruption, 8-9 December 2015, OECD

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Cross-cutting issues: Enforcement

Challenges:– Delays in obtaining mutual legal

assistance.– Bank secrecy and national economic

interest remain obstacles.– MLA requests rarely used as a

source of information in opening foreign bribery investigations (in only 13% of cases).

Solutions:­ OECD regional programmes (Africa,

Asia-Pacific, Eastern Europe and Central Asia, Middle East and North Africa, Latin America).

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Cross-cutting issues: International Cooperation

Corporate Liability:– Liability for the acts of intermediaries and

related legal persons.– Autonomous liability (independent from

liability of natural persons).– Liability of State-owned or controlled

enterprises (SOEs).– How to assess pre-existing compliance

measures in countries where these can be taken into consideration in mitigation of sentence or to avoid liability.

Plea-bargaining and settlements:– Need to make main facts publicly available.

– The issue of self-reporting/cooperation with investigations and immunity from liability (as highlighted in the UNODC State of Implementation Report on immunities) 7

Cross-cutting issues: Corporate liability and settlements

From entry into force of the OECD Anti-Bribery Convention (1999) to June 2014:– 393 investigations are ongoing in 25 Parties to the Anti-Bribery

Convention;– 80 individuals were imprisoned after a foreign bribery

conviction;– 261 fines imposed on individuals and companies;– A record of EUR 1.8 billion being the highest combined fine

against a single company;– 69% of cases had sanctions imposed through settlement

procedures.

Key facts:

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To find out more…

OECD Anti-Bribery Convention and Working Group on Briberywww.oecd.org/corruption/anti-bribery/

OECD Anti-Bribery Ministerial Meeting, Paris, 16 March 2016www.oecd.org/corruption/anti-bribery/OECD-anti-bribery-ministerial-2016

Global Network of Law Enforcement Officials against Corruptionwww.oecd.org/corruption/anti-bribery/global-law-enforcement-network-meeting-dec-2015.htm

Regional Programmeswww.oecd.org/corruption/anti-bribery/ 9