Mark PiethThe OECD Convention on Bribery

Mark Pieth, ‘Introduction’ in Mark Pieth, Lucinda A. Low and Nicola Bonucci (eds.), The OECD Convention on Bribery (2nd ed. Cambridge: Cambridge University Press, 2014) pp. 3-56.

Background

The OECD Convention on Bribery established an international standard for compliance with anti-corruption rules, and has subsequently been adopted by the thirty-four OECD members and six non-member countries. As a result of the Convention and national implementation laws, companies and managers now risk tough sanctions if they are caught bribing foreign officials. The UK Bribery Act 2010 is only one example of this development.

Summary

The text is the introduction to the second edition of a commentary on the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 21 November 1997. The commentary was edited by Mark Pieth, Lucianda A. Low and Nicola Bonucci.

The convention is marked by a long history of combatting corruption, a phenomenon which is as old as human nature itself. The first tentative steps by the OECD started in 1989 and the convention was finally signed in 1997. The text offers a deeper look into the development of public awareness and attitudes regarding corruption as well as the emergence of the convention as a transnational legal framework. It is due to the OECD’s well-established “peer review” and “soft law” procedures and US distrust of the United Nations system that led to the development of international rules on foreign commercial bribery taking place in this forum.

The OECD initiative against transnational commercial bribery has, from the very beginning, deliberately focused on reducing the “supply”, i.e. the influx of corrupt funds, especially into economies of the southern hemisphere. The OECD limits itself to criminalizing the offering and the payment of bribes to foreign officials. The companies domiciled in OECD countries are the world’s major exporters and investors; they are the most exposed to solicitation and to the temptation to pay bribes in order to secure business.

The harmonization of rules across a range of widely divergent legal traditions in a very limited space of time was a challenging goal. The Negotiating Conference used a method termed “functional equivalence”, an approach that assumes that every legal system has its own logic. Some of the fundamental questions addressed by Mark Pieth are the way in which criminalization of bribery of foreign public officials should be introduced into the legal system(s) of a state Party, how the criminal act is to be defined, the way corporations can be held responsible and finally the concept of confiscation of the proceeds of bribery. The text addresses further the legal basis and characteristics of the OECD monitoring. Finally the role and responsibilities of enterprises is discussed. The ultimate goal of the OECD instruments is to deter corporate entities which may be prone to indulge in significant commercial bribery. The risk should induce them to introduce meaningful compliance programs.

Text

You can find a scan (PDF) of the original text here: Pieth – Introduction OECD Commentary 2nd edition

 

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