The OECD Anti-Bribery Convention was adopted in 1997 to combat bribery of foreign public officials in international business transactions.
The 2021 Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions was adopted by the OECD Council on 26 November 2021. This Recommendation updates and expands upon the 2009 Recommendation to strengthen the implementation of the Convention and further enhance the fight against foreign bribery.
This article provides a summary of the key aspects of the Recommendation.
The 2021 Anti-Bribery Recommendation
The 2021 Anti-Bribery Recommendation covers key topics including strengthening enforcement of foreign bribery laws, addressing the demand side of foreign bribery, enhancing international cooperation, introducing principles on the use of non-trial resolutions in foreign bribery cases, incentivising anti-corruption compliance by companies, and providing comprehensive and effective protection for reporting persons.
Strengthening enforcement of foreign bribery laws
The OECD Council recommends that Member Countries:
- Periodically review their laws implementing the OECD Anti-Bribery Convention and their approach to enforcement.
- Take all necessary measures to ensure that law enforcement authorities are adequately trained, have sufficient resources, and act promptly and proactively.
- Ensure that cases of bribery of foreign public officials are investigated and prosecuted without undue delay.
- Ensure that a broad range of investigative measures is available in foreign bribery investigations and prosecutions, such as access to financial, banking and company information, including on beneficial ownership and asset tracing, and that competent authorities make full use of these measures under the conditions prescribed by domestic laws.
- Permit and promote effective and timely cooperation and information sharing among and within national competent authorities.
Addressing the demand side
The OECD Council recommends that Member Countries:
- Raise awareness of bribe solicitation risks among relevant public officials, particularly those posted abroad, and provide adequate training on steps to be taken in relevant scenarios.
- Raise awareness of public officials on domestic bribery and solicitation laws.
- Review their policies and approach to combatting small facilitation payments.
Sanctions and confiscation
The OECD Council recommends that Member Countries:
- Ensure that sanctions against natural and legal persons for foreign bribery are transparent, effective, proportionate, and dissuasive.
- Make full use, whenever possible and appropriate, of the measures available in their national laws for the identification, freezing, seizure, and confiscation of bribes and the proceeds of bribery of foreign public officials, or property the value of which corresponds to that of such proceeds.
Non-trial resolutions
The OECD Council recommends that Member Countries:
- Consider using a variety of forms of resolutions when resolving criminal, administrative, and civil cases with both legal and natural persons, including non-trial resolutions.
- Ensure that non-trial resolutions follow the principles of due process, transparency, and accountability.
International cooperation
The OECD Council recommends that Member Countries:
- Make full use of existing agreements and arrangements for mutual legal assistance and where necessary, enter into new agreements or arrangements for this purpose.
- Effectively cooperate with competent authorities in other member countries, including by entering into bilateral agreements for mutual legal assistance and actively participating in international law enforcement networks specialised in anti-corruption matters.
- Encourage direct coordination in concurrent or parallel investigations and prosecutions, where appropriate, including through such means as the sharing of information and evidence.
Tax deductibility
The OECD Council recommends that Member Countries:
- Fully and promptly implement the 2009 Recommendation that Member countries and other Parties to the OECD Anti-Bribery Convention explicitly disallow the tax deductibility of bribes to foreign public officials.
Reporting foreign bribery
The OECD Council recommends that Member Countries:
- Establish and publicise clear policies and procedures by which any natural person, including public officials, can report suspicions of bribery of foreign public officials and related offences to competent authorities.
- Provide easily accessible and diversified channels for the reporting of suspected acts of foreign bribery.
- Raise awareness through regular training and other means about the foreign bribery offence and reporting obligations.
Protection of reporting persons
The OECD Council recommends that Member Countries:
- Afford protection to the broadest possible range of reporting persons in a work-related context.
- Ensure appropriate measures are in place to provide for the confidentiality of the identity of the reporting person and the content of the report.
- Ensure appropriate remedies are available to reporting persons to compensate direct and indirect consequences of retaliatory action following a report that qualifies for protection.
Accounting requirements, external audit, and internal controls, ethics and compliance
The OECD Council recommends that Member Countries:
- Take the steps necessary so that laws, rules or practices with respect to accounting requirements, external audits, and internal controls, ethics and compliance, are in line with the principles set out in the Recommendation and are fully used to prevent and detect foreign bribery, according to their jurisdictional and other basic legal principles.
Public advantages, including public procurement
The OECD Council recommends that Member Countries:
- Permit authorities to suspend or debar, to an appropriate degree, from competition for public contracts or other public advantages, including public procurement contracts and contracts funded by official development assistance, companies determined to have bribed foreign public officials in contravention of that member country’s national laws.
Data protection
The OECD Council recommends that Member Countries:
- Ensure that compliance with data protection rules and laws that prohibit transmission of economic or commercial information does not unduly impede effective international co-operation in investigations and prosecutions of foreign bribery and related offences.
Key takeaways
The 2021 Anti-Bribery Recommendation seeks to strengthen the implementation of the OECD Anti-Bribery Convention and to reinforce the efforts of Member Countries to prevent, detect and investigate foreign bribery. Key aspects of the Recommendation include strengthening enforcement of foreign bribery laws, enhancing international cooperation, and protecting whistleblowers.
