There are many active, multilateral anti-corruption agreements drafted and updated by non-governmental organizations, many of them global in membership, that speak out against corruption.
Some of the conventions and voluntary agreements will be familiar to most readers, while others may be new. Three of the major ones (listed below) will be discussed in this article.
- Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
- United Nations Convention against Corruption
- Council of Europe Criminal Law Convention on Corruption
- World Economic Forum Partnering Against Corruption Initiative
- United Nations Global Compact: Principle 10
- International Chamber of Commerce Rules of Conduct to Combat Extortion and Bribery
These conventions seek to create shared commitments from their members on the definitions of corruption, fraud and bribery in their myriad forms and how such instances should be best prevented, detected and remediated.
If there is one drawback these diverse anti-bribery mechanisms have in common, though, it is the inability to police each other’s transgressions. Beyond voicing their disapproval, there is little that international bodies such as the United Nations can do to make individual countries enforce bribery laws.
The OECD Convention is one of the few comprehensive, internationally-recognized and government-supported sets of principles for corporate responsibility. The Convention allows NGOs and trade unions to raise complaints against companies, and impose a positive duty on governments to help resolve these complaints.
Launched in 1999, the Convention applies to bribery of foreign officials anywhere, regardless of where the incident takes place. It has been ratified by all 33 members of the OECD.
The Convention criminalizes offering and/or paying bribes, but not soliciting and/or accepting bribes. It covers only the bribery of foreign officials and not private-to-private corruption. The convention allows “small facilitation payments” to low-ranking officials. The Convention’s strong point is that the OECD works with a wide range of programs within its member countries to combat bribery, supporting those initiatives with funding and other resources. It does not address bribery of officials by local business, however, and it has been criticized for failing to cover the bribery of private-sector employees and to address the bribery of political parties and political candidates.
The Convention also provides no protection for whistleblowers who uncover corruption, which can lead to reluctance to disclose incidents of bribery.
The United Nations Convention against Corruption (UNCAC) came into force in December 2005. It is the most comprehensive anti-corruption convention, both in the number of state parties and provisions. It covers domestic and foreign bribery offenses, embezzlement, trading in influence, as well as the laundering of the proceeds of corruption.
Furthermore, it contains provisions covering the detection and sanctioning of corruption, as well as the promotion of transparency and technical assistance.
The UNCAC requires state parties to establish measures to prevent and discourage public sector corruption, as well as legal provisions to criminalize public sector corruption.
In contrast to the OECD Convention, the UNCAC contains provisions on prevention and criminalization of private sector bribery, including the promise and solicitation of bribes. The problem with these provisions is that they only recommend that state parties consider implementing measures to impose proportionate and dissuasive civil, administrative or criminal penalties, and consider passing related criminal legislation.
In 2009, to address the lack of a review mechanism to evaluate members’ degree of implementation of the Convention, the parties to the UNCAC agreed to establish such a review process, although only on a voluntary base.
The review requires the volunteering country to compile a self-assessment checklist, which is then evaluated by experts from other signatory countries with the results of the review consolidated in a country report.
The International Chamber of Commerce’s Rules of Conduct to Combat Extortion and Bribery in International Business Transactions (ICC Rules) address transactions with governments and international organizations. The ICC Rules state that these transactions must be subject to safeguards to minimize any opportunity for extortion and bribery and that the system for awarding government contracts should include disclosure, to an appropriate government entity independent of the one directly concerned in the transaction, as well as public disclosure of the criteria upon which the award is based.
Julie DiMauro is a regulatory intelligence and e-learning expert in the Governance, Risk and Compliance division of Thomson Reuters in New York and a contributing writer for FCPA Blog.
Follow Julie on Twitter @Julie_DiMauro.