OECD Convention on Combating Bribery of Foreign Officials in International Bnsiness Transactions

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OECD Convention on Combating Bribery of Foreign Officials in International Bnsiness Transactions

in Austrian Review of International and European Law Online


1 Convention on Combating Bribery of Foreign Public Officials in International Business Transaction, done at Paris, Dec. 17, 1997 [hereinafter Convention or OECD Convention] reprinted in 37 ILM (1998) 4. 2 OECD Members that signed the Convention: Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, Spain, Swe- den, Switzerland, Turkey, United Kingdom, and the United States of America; the only OECD Member that did not sign the Convention is Australia. 3 OECD Council Recommendation on Bribery in International Business Transactions, May 27, 1994, C(94)75/FINAL, reprinted in 33 ILM (1994) 1383.

4 OECD Council Recommcndation on Combating Bribery in International Business Trans- actions, May 23, 1997, C(97) 123/FINAL [hereinafter: 1997 Recommendation], reprinted in 36 ILM (1997) 1016. 5 OECD Council Recommendation on the Tax Deductibility of Bribes of Foreign Public Officials, April 11, 1996, C(96)27/FINAL, reprinted in 35 ILM ( 1996) 760. 6 See Report by the Committee on Fiscal Affairs (CFA) to the OECD Council at Ministerial Level (28 April 1998), Update on the Implementation of the OECD Recommendation on the Tax Deductibility of Bribes to Foreign Public Officials, DAFFE/CFA(98)8/REV2. 7 Id., Annex III. 8 Commentaries on the Convention on Combating Bribery of Officials in International Business Transactions, adopted by the Negotiating Conference on 21 November 1997 [here- inafter Commentaries]; the text of the Commentaries is available at the OECD web-site http://www.oecd.org.

9 Vienna Convention on the Laws of Treaties (May 22, 1969), reprinted in 8 ILM (1969) 679. Reports of the Committee on International Investment and Multinational Enterprises to the OECD Council meeting at Ministerial level (27 April 1998), Implementation of the 1997 Revised Recommendation and the Convention on Combating Bribery of Foreign Public Offi- cials in International Business Transactions; the Committee comes to the conclusion that most of the countries depending on the differences in their respective constitutional procedures have submitted the Convention to their competent legislative bodies or drafted legislation to amend relevant laws and regulations. The Committee also reported that almost all countries indicated that the Convention will be ratified and implemented by the end of 1998. Annex 11 of the report contains detailed information of participating countries on achieved and/or planned actions to ratify and implement the Convention; the report is available at the OECD web-site http://www.oecd.org. 11 Cf. Article 12. 12 See the overview given in: Commission on Crime Prevention and Criminal Justice (sev- enth session), Promotion and Maintenance of the Rule of Law: Action Against Corruption and Bribery, Report of the Secretary-General, March 23, 1998, UN Doc. E/CN.15/1998/3.

3 In 1996, the World Bank set up a Corruption Action Plan Working Group; the Bank is now involved in supporting countries to develop anti-corruption strategies; cf. also the Report Helping Countries Combat Corruption: The Role of the World Bank, prepared by the Poverty Reduction and Economic Management Network (PREM) in September 1997, in particular chapter 8. �4 Cf, e.g. Development Committee Communique, Corruption must Be Fought on Global Scale, Private Role in Development Needs Strengthening (September 22, 1997) in 26 IMF Survey (no. 18, Oct. 6, 1997), at 303s. z 5 The Committee of Ministers of the Council of Europe established a Multidisciplinary Group on Corruption (GMC) in 1994. The GMC prepared The Council of Europe Programme on Action Against Corruption that was adopted by the Committee of Ministers in 1996. The GMC has also elaborated a Feasibility Study and a draft Criminal Law Convention on Corruption. 16 Cf. ICC, Rules of Conduct to Combat Extortion and Bribery; see also ICC Recommenda- tions to Governments and International Organizations on Extortion and Bribery (1996), (both documents are available at URL http://www.iccwbo.org). 17 Transparency International was founded in 1993 as a non-profit, non-governmental or- ganisation. Its mission is to counter corruption on the national as well as on the international level. To this end, it is co-operating with other international organisations and has been estab- lished national chapters in over 70 countries to encourage governments to implement effective anti-corruption legislation. 18 But see Edmund L. Andrews, 29 Nations Agree to Outlaw Bribing Foreign Officials, N.Y. Times, Nov. 21, 1997, at A1; Dominic Bencivenga, Anti-Bribery Pact - Goodbye "Mr. 10-Percent.", The New York Law Journal, January 15, 1998, at 5; both authors speak only about competition aspects of transnational bribery. 19 Cf. Preamble, paras. Is, of the Convention. 20 UN Secretary-General Press Release SG/SM/6318 of September 5, 1997.

21 See GA Res. 3514 (XXX) of 15 December 1975, 29 UNYB (1975) 489; see also GA Res 3218 (XXIX) of 6 November 1974, 28 UNYB (1974) 580. 22 See GA Res. 46/152 of 18 December 1991, 45 UNYB (1991) 661. 23 ECOSOC Res. E/1996/8. Action against corruption of 23 July 1996, available at gopher://gopher.vn.org/00/esc/rcs/1996/E-Res 96.8 cf. Report of the Third Committee, Crime Prevention and Criminal Justice, A/51/610 of 22 November 1996, at paras. 6-10. 24 GA Res. 51/59 of December 12, 1996, reprinted in 36 ILM (1997) 1039. 25 Id., para. 2. 26 Id., para. 3. 27 GA Res. 51/191 of December 16, 1996, reprinted in 36 ILM (1997) 1043.

28 GA Res. 52/87 of December 12, 1997, URL: http://www.un.org/ga/documents/gares52/ res5287.htm. 29 Id, para. 3. 30 prganization of American States, Inter-American Convention Against Corruption, March 29, 1996, reprinted in 35 ILM (1996) 724. In the meantime, the United States of America signed the convention as 22,d, Trinidad and Tobago as 23rd signatory; as of April 1998, 9 countries have ratified the convention: Argentina, Bolivia, Costa Rica, Ecuador, Mexico, Paraguay, Peru, Trinidad and Tobago, and Venzuela; the convention came into effect on March 4, 1997.

31 Inter-American Program for Cooperation in the Fight against Corruption, OAS Gen- eral Assembly, June 5, 1997, AG/RES 1477 (XXVII-0/97); URL: http://www.oas.org/EN/ PINFO/RES/RESGA97/agl477e.htm. 32 Inter-American Convention Against Corruption, supra note 30, article XIV.

33 Commentaries, supra note 8, to Article 1. 34 Ibid. 35 Foreign Corrupt Practices Act, 15 U.S.: §§78dd et seq., reprinted in 17 ILM (1978) 214, amendments at 28 ILM (1989) 455; the FCPA prohibits all companies which have stock reg- istered with the Securities and Exchange Commission to make an offer, payment, or promise to pay to any foreign official, political party or candidate for purposes of influencing decisions to obtain or retain business or other undue benefits (§78dd-I (a)).

36 Cf. Commentaries, supra note 8, to Article 4 (1).

37 Cf. Commentaries, supra note 8, to Article 13.

38 The ten countries are: United States of America, Germany, Japan, France, United Kingdom, Italy, Canada, Korea, the Netherlands, and Belgium-Luxembourg (Belgium and Luxembourg are listed jointly; however, if either one of them or both together submit their instruments of ratification, it will be considered as the deposit of instruments by one of the ten export leading countries). 39 See Section VIII of the 1997 Recommendation, supra note 4; cf. Commentaries, supra note 8, to Article 12.

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