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Enforcement of the OECD Convention on Combating Bribery of Foreign Progress Report OECD Anti-Bribery Convention 2009 Enforcement of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions www.transparency.org Transparency International is the global civil society organisation leading the fi ght against corruption. Through more than 90 chapters worldwide and an international secretariat in Berlin, Germany, TI raises awareness of the damaging effects of corruption and works with partners in government, business and civil society to develop and implement effective measures to tackle it. ACKNOWLEDGEMENTS The 2009 Transparency International Progress Report on Enforcement of the OECD Con- vention was authored by Fritz Heimann and Gillian Dell. The authors of this report wish to express their appreciation to the many individuals who contributed to the preparation of this report. This includes the experts from TI chapters, listed in Appendix A, who responded to the Questionnaire. Particular thanks are also due to Kelly McCarthy, TI-Secretariat, and Zephyr Teachout, Duke University, who assisted with inputs to the report. The report also benefi ted from valuable comments from the mem- bers of the TI-Secretariat Editorial Committee: André Doren, Craig Fagan, Gypsy Guillén Kaiser, Robin Hodess, Casey Kelso and Christiaan Poortman. We would also like to express appreciation to Larissa Schuurman and Michael Sidwell, who helped with arrangements for the production of the report. ISBN: 978-3-935711-31-9 Printed on 100% recycled paper 3rd edition 2009 © 2009 Transparency International. All rights reserved. Design: frischdesign.com Every effort has been made to verify the accuracy of the information contained in this report. All information was believed to be correct as of June 2009. Nevertheless, Transpar- ency International cannot accept responsibility for the consequences of its use for other purposes or in other contexts. 225OECD2009content.indd5OECD2009content.indd 2 228.07.20098.07.2009 118:41:168:41:16 UUhrhr Progress Report 2009 Enforcement of the OECD Convention on Combating Bribery of Foreign Public Offi cials in International Business Transactions Fritz Heimann and Gillian Dell 23 June 2009 225OECD2009content.indd5OECD2009content.indd 3 228.07.20098.07.2009 118:41:178:41:17 UUhrhr ABBREVIATIONS USED IN THE COUNTRY REPORTS IN SECTION 3: AML Anti-money laundering CDD Customer due diligence FATF Financial Action Task Force FCPA Unted States Foreign Corrupt Practices Act, 1977 GRECO Council of Europe Group of States against Corruption KYC Know your customer MLA Mutual legal assistance Moneyval Council of Europe Committee of Experts on the Evaluation of Money laundering Measures OECD Phase 2 Report Phase 2 Report of the OECD Working Group on Bribery PEP Politically exposed person SEC United States Securities and Exchange Commission UNCAC United Nations Convention against Corruption UN OIL-FOR FOOD PROGRAMME Many of the cases and investigations mentioned in Section III of this report relate to the Oil-for-Food Pro- gramme that was established by the United Nations (UN) Security Council in 1995 and began operation at the end of 1996. The Programme was intended to allow Iraq to sell oil to pay for food, medicine and other humanitarian needs of Iraqi citizens, in order to ease the impact of UN sanctions. Some 3.4 billion barrels of Iraqi oil valued at about US $65 billion were exported under the Programme between December 1996 and March 2003. The programme was terminated in late 2003. Following allegations of improprieties in the Programme, in 2004 the UN Secretary General established the Independent Inquiry into the UN Oil- for-Food Programme under the chairmanship of Paul Volcker, former US Federal Reserve Board Chair. The Commission completed its report “the Volcker Report” in 2005. It is alleged that 2,253 companies from 66 countries paid bribes totalling about US $1.8 billion in exchange for contracts for delivery of goods to meet humanitarian needs. There were another 139 companies from 40 countries that reportedly paid illicit surcharges on oil purchases from Iraq. The government of Iraq fi led a lawsuit in a US court in June 2008, seeking damages of US $10 billion against companies and people alleged to have illegally benefi tted from the Oil-for-Food programme. 225OECD2009content.indd5OECD2009content.indd 4 228.07.20098.07.2009 118:41:178:41:17 UUhrhr TABLE OF CONTENTS Introduction 6 Overview of process and method 7 1 Major fi ndings, conclusions and recommendations 8 Table A: Foreign bribery enforcement in OECD Convention countries 10 Table B: Foreign bribery cases and investigations 11 Table C: Status of foreign bribery cases 12 2 Detailed fi ndings 13 3 Reports on enforcement in OECD Convention countries 16 4 Reports on three non-OECD Countries: China, India and Russia 56 5 Appendix A and B A | List of expert respondents 62 B | Questionnaire for TI chapters 65 Endnotes 69 225OECD2009content.indd5OECD2009content.indd 5 228.07.20098.07.2009 118:41:178:41:17 UUhrhr Introduction In 1997, the member states of the Organisation for Economic Cooperation and Development (OECD) ad- opted the OECD Convention on Combating Bribery of Foreign Public Offi cials in International Business Transactions (the OECD Convention). The adoption of the Convention was a landmark event in the fi ght against international corruption representing a collective commitment to ban foreign bribery by the gov- ernments of the leading industrialised states - countries accounting for the majority of global exports and foreign investment. Because most major multinational companies are based in OECD Convention countries, the Convention was hailed as the key to overcoming the damaging effects of foreign bribery on democratic institutions, development programmes and business competition. The Convention now has 38 parties. It requires parties to make it an offence to “intentionally offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public offi cial, for that offi cial or for a third party, in order that the offi cial act or refrain from acting in relation to the performance of offi cial duties, in order to obtain or retain business or other improper advantage in the conduct of international business.” This is the fi fth annual Progress Report on Enforcement of the OECD Convention prepared by Transparency International (TI) the global coalition against corruption. The 2009 report covers 36 of the 38 parties. It shows that enforcement has been extremely uneven. There is active enforcement in only four countries and little or no enforcement in 21 of the parties. Increased efforts are also needed in countries with moderate enforcement because their level of enforcement is not high enough to provide effective deterrence. The present situation is dangerous because it is unstable: if enforcement does not improve it is likely to deteriorate. The Convention is based on the collective commitment of all the parties to end foreign bribery. Failure to enforce the Convention undermines that commitment. There are already signs of backsliding, with some government efforts to curtail the ability of investigative magistrates to bring cases, shorten stat- utes of limitations, and extend immunities from prosecution. The risk of backsliding has grown more acute during a time of worldwide recession when competition for decreasing numbers of orders has intensifi ed greatly. Based on TI’s in-depth reviews of enforcement programmes over fi ve years, we are convinced that lack of political will is the major cause of lagging enforcement. The outstanding monitoring programme of the OECD Working Group on Bribery has helped improve laws and enforcement programmes in countries where there is committed political leadership. However, in the absence of political will, even the highest-quality monitoring reports have little effect. An example is the decade-long failure of the UK government to amend its antiquated bribery laws; a new law has still not been enacted by Parliament. Lack of political will can also take other forms including failure to provide adequate funding and staffi ng for enforcement. This problem of lagging enforcement can only be overcome by addressing the issue at a higher political level, thereby reinforcing the efforts of the Working Group on Bribery. That will require active involvement by the OECD Ministerial Council, the Secretary-General, as well as pressure on the laggards from govern- ments committed to enforcement. The tables on pages 10-12 show the classifi cation of 36 OECD Convention countries into categories of ac- tive, moderate and little or no enforcement. Section 1 sets forth the conclusions and recommendations of the report. Section 2 provides fi ndings on selected enforcement issues including statutory obstacles, access to information, complaint procedures, accounting and auditing, and anti-money laundering programmes. Section 3 summarises the country reports on enforcement systems in OECD Convention countries. Section 4 provides information on anti-bribery programmes in China, India and Russia, which are not parties to the OECD Convention but have been invited to become parties. 6 PROGRESS REPORT 2009 TRANSPARENCY INTERNATIONAL 225OECD2009content.indd5OECD2009content.indd AAbs1:6bs1:6 228.07.20098.07.2009 118:41:178:41:17 UUhrhr Overview of process and method The 2009 Progress Report, like past ones, is based on information provided by TI experts in each country who are highly qualifi ed professionals selected in most cases by TI chapters. Appendix A lists the experts and their qualifi cations. They responded to the Questionnaire, shown in Appendix B, taking into account the views of government offi cials and other knowledgeable persons in their countries. They were aided in their work by the valuable monitoring reports prepared by the OECD Working Group on Bribery in the course of its reviews of government compliance with the Convention. No TI reports were prepared for three countries, Estonia, Iceland and Luxembourg, since TI lacks experts in those countries, but TI Estonia provided current data on cases and investigations.
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