Chapter
II. The approach: 'collective unilateralism' to tackle the 'supply side' of corruption
2. A narrow definition of corruption
2.1. International business transactions
2.5. Exclusion of facilitation payments
3. With a broad geographic reach
4. Further specifics of the OECD instruments
III. Methodology: going new ways in international law
1. Respecting basic national legal principles
2. 'Functional equivalence'
2.2.1. Integration in national legal systems
2.2.2. Definition of the criminal act
2.2.3. Corporate liability
2.3. A gradual rapprochement expected
IV. Legal basis and characteristics of OECD monitoring
1. Four monitoring mechanisms
1.2. 'Phase 1 monitoring'
1.3. 'Phase 1 plus' or 'Phase 1bis, monitoring
1.4. 'Phase 2 monitoring'
2. WGB evaluation procedures
2.2. Hearings and finalisation of report
3. Follow-up to 'Phase 2 monitoring'
3.2. Extraordinary measures
3.3. A 'Phase 3 monitoring'?
V. The role and responsibilities of enterprises
Article 1. The Offence of Bribery of Foreign Public Officials
Article 1 - The Offence of Bribery of Foreign Public Officials:
Article 1. - The Offence of Bribery of Foreign Public Officials:
2. Functional equivalence
II. Objective elements of the offence
1. The offender: 'any person'
2. Recipient: foreign public official
2.1. Autonomous definition
2.2. Structure and principle underlying the definition
2.3. Functional classification
2.3.1 The term 'public function'
2.3.2. Exercise of a public function within a 'public agency'
2.3.3. Exercise of a public function within a 'public enterprise'
2.3.4. De facto exercise of a public function
2.4. Institutional classification
b. Organised areas or entities
c. Coverage of all governmental entities
2.5.2. International organisation
2.5.3. Coverage of non-governmental organisations?
2.6. Horizontal comparison
2.6.1. Approaches aligned with the definitions of Article 1(4) of the Convention
2.6.2. Definitions with a markedly autonomous structure
2.6.3. Alignment with obligations under EC/EU law
2.6.4. The use of non-specific or general language
2.6.5. Inadequate implementation: definition based on foreign law
2.6.6. Extension of definition to persons on fringe or threshold of public office
3. Third party beneficiaries
3.1. Compelling the use of false motives for official action
3.2. The circle of third party beneficiaries
3.3. Horizontal comparison
3.3.1. Explicit rule for third party beneficiaries
3.3.2. The effectiveness of open-textured language
4. The bribe: any undue pecuniary or other advantage
4.1.1. Advantage of any kind
4.1.2. Horizontal comparison
4.2.1. Permission to pay official: factual determination
4.2.2. Level of legal authority required for permission
4.2.3. Scope of statutory permission
4.2.4. Horizontal comparison
5. Actus reus: to offer, promise or give
5.1. The Phases of the bribery agreement
5.1.2. Negotiation stage: 'offering' and 'promising' an advantage
5.1.3. Completed offence: 'giving' an advantage
5.2. The limits of criminal defences
5.4. Horizontal comparison
5.4.1. Explicit reference to all phases of the crime
5.4.2. Broadening of the offence
5.4.3. Danger of limiting scope of offence
5.4.4. Defences or excuses not foreseen by the Convention
6.1. The basis of criminal responsibility for the acts of others
6.1.1. The practical need to extend responsibility
6.1.2. Liability for third party action: legal conditions
6.2. Responsibility for bribery by independent agents
6.3. Liability in respect of bribery by subsidiaries
6.4. Horizontal comparison
7. Consideration for the bribe: 'acting in relation to the performance of official duties'
7.1. Taking advantage of a public function
7.2.1. General limitation to breach of duties
7.2.2. Exception of small facilitation payments
7.3. Horizontal comparison
7.3.1. No limitation to sphere of competence of public official
7.3.2. Breach of duties concepts in domestic law
7.3.3. Wide definition of official action with tolerance of small facilitation payments
7.3.4. Broad concepts without provision for exceptions
8. Objective of bribery: improper advantage in the conduct of international business
8.1. Limitation to business advantage
8.3. Horizontal comparison
8.3.1. Extension to other walks of life
8.3.2. Limitation to transnational business
8.3.3. The 'obtaining or retaining business' concept of the FCPA
8.3.4. Improper nature of the advantage
IV. Extension of criminal responsibility
1. Inclusion of transnational bribery in the existing criminal justice system
2.1. Convention legal framework
2.2. Horizontal comparison
3.1. Assimilation of rules to transnational bribery
3.2. Horizontal comparison
3.2.1. Distinction between attempts and mere preparatory acts
3.2.2. Distinction between attempts and completion of the crime
4.1. Assimilation of conspiracy to the international dimension
4.2. Horizontal comparison
Article 2. The Responsibility of Legal Persons
Article 2 - Responsibility of Legal Persons
Article 2 - Responsibility of Legal Persons
I. The significance of corporate liability in combating bribery
II. The variety of models available
1. Models of corporate criminal liability
1.1.1. 'Vicarious liability' ('respondeat superior')
1.1.2. 'Identification theory' ('alter ego')
2. Non-criminal corporate liability
III. Setting standards for corporate liability: the requirements of the OECD Convention
2. Defining the legal entities covered
2.1. Legal person v. business entity
3.2. Benefit to the legal person
3.2.2. Within the scope of corporate duties
3.3. Level of person engaging corporate responsibility
3.4. The relationship between procedures against natural and legal persons
3.5. Standard of liability
3.6. Defining the 'bottom line' of substantive liability of corporations according to the OECD Convention
3.6.1. Corporate criminal liability
3.6.2. Non-criminal liability
4.1. Sanctions against corporations
4.2. The international standard
4.4.1. Criminal sanctions
4.4.2. Additional civil or administrative sanctions
4.5. Sanctioning principles
4.5.1. Crime-related factors
4.5.2. Corporate culpability
4.5.3. Situation of the company and post-offence development
a. Economic situation of the company
b. Restitution and rehabilitation
4.6. Judging effectiveness
5.1. Prosecutorial discretion
IV. Corporate liability and sanctions: conclusions
I. Introduction: The goals of Article 3
II. Origin of the standard 'effective, proportionate and dissuasive' sanctions
1. Pre-Convention discussions
2. Application of the standard in EC and EU law
2.1. Basic approach of EC law
2.2. A broader concept of 'effectiveness' in EC law
2.3. The Amsterdam Treaty and the EUs Green Paper on sanctions
2.4. EU law concerning corporate criminal liability
2.5. Impact of EC and EU law on national sanctions: an assessment
III. Establishing minimum standards for sanctions: approach of the OECD convention and the WGB
1. Interpreting the Convention standard: background issues
2. Article 3(1) - specific parameters for the sanctioning of corruption by natural persons
2.1. The 'assimilation' standard
2.1.1. Assimilation with domestic bribery offences
2.1.2. Assimilation with other forms of economic crime
2.2. Deprivation of liberty sufficient to enable effective mutual legal assistance and extradition
3. The OECD standard of 'effective, proportionate, and dissuasive' sanctions
3.1. Achieving a common standard: the goals of Phase 1 and Phase 2 monitoring
3.2. Dismantling the 'mantra': effectiveness as the key test?
3.3. Effectiveness as a relative concept: allowing for divergence of national laws
3.3.1. Divergence in custodial sanctions
3.3.2. Divergence in monetary sanctions
3.3.3. Divergence in civil and administrative sanctions
3.4. The impact of the common standard
3.4.1. The objective of deterrence
3.4.2. US experience: deterrence in practice?
3.4.3. US experience: the Federal Sentencing Guidelines and corporate compliance
3.4.4. Contribution of repressive measures to combating corruption?
4. Proportionality as a discrete element of the OECD common standard
4.1. Distinguishing proportionality from effectiveness
4.2. Differentiating between ordinary and serious corruption: a proportionate response by state Parties?
4.3. Comparable penalties for active and passive bribery: a proportionality requirement?
4.4. Applying proportionality to limit sanctions?
5. 'Effective, proportionate and dissuasive': testing the totality of sanctions
Article 3(3). Seizure and Confiscation
Article 3(3) - Seizure and Confiscation
3. The requirements for confiscation
3.1. The object of confiscation
3.2. Confiscation of the bribe
3.3. Confiscation of the proceeds of bribery
V. Third party confiscation
VI. Confiscation in practice
VII. International co-operation
1. Obligation of co-operation
2. Forfeiture and confiscation upon request
3. Disposal of confiscated assets
VIII. 'Monetary sanctions of comparable effect'
I. Overview of the jurisdictional principles
1. 'Territoriality' and 'sovereignty'
2. 'Extra-territoriality'
II. The requirements of the Convention
2. Territorial jurisdiction (Article 4(1))
2.1.1. Definition of territory
2.1.2. Dependent territories
2.1.3. Internationally non-recognised territories
2.2. The territorial basis for jurisdiction
c. Preparation, attempt, handling, and money laundering
d. Aiding or abetting and conspiracy
e. No 'dual criminality' requirement
aa. Special issue: the US 'interstate nexus'
bb. Special issue: the Japanese 'main office exception'
3. Nationality jurisdiction (Article 4(2))
3.2. Is nationality jurisdiction mandatory under Article 4(2)?
3.3. Additional requirements
3.3.1. 'Dual criminality'
3.3.2. A complaint by the victim and the assent by a senior law officer
3.3.3. The presence or availability of the accused
3.4. The application of the 'nationality principle' to corporate entities?
III. Consultation procedure (Article 4(3))
IV. Review Procedure (Article 4(4))
II. Deciding to investigate/prosecute foreign bribery: basic principles of the Convention
1. Investigation and prosecution: application of similar criteria
2. Principles applicable to investigation and prosecution
2.1. The principle of prosecutorial discretion: basic approach of the Convention
2.2. The principle of prosecutorial independence: basic approach of the Convention
III. The exercise of professional motives under the Convention
1. Source of professional motives: guidelines for prosecutors
2. A professional duty to follow up allegations of foreign bribery?
3. Professional motives: thresholds for investigation and prosecution
3.1. Launching investigations: threshold requirements
3.2. Bringing cases to trial: the threshold for prosecution
4. Prosecuting bribery of foreign public officials as a serious offence
5. Professional motives: charging and plea-bargaining
6. Evidence-gathering: implications of Article 5
IV. Excluding politics from foreign bribery investigations: Article 5 requirements
1. General duties of state Parties
1.1. Obligation of state Parties not to block prosecutions for political reasons
1.2. Setting criminal policy priorities: a duty to 'assimilate' foreign bribery with other serious crime?
2. The prohibited grounds of state interference in foreign bribery cases
2.1. National economic interest
2.1.2. Defining 'national economic interest'
2.2. Relations with other states
2.3. Identity of natural or legal persons involved
V. Organisation of enforcement
1. Effectiveness of national systems of investigation and prosecution
3. Role of the victim and of private action
Article 6. Statute of Limitations
Article 6 - Statute of Limitations
II. Limitation models and their underlying philosophies
1. An emerging international standard for economic crime?
2. National models: general features
2.1. A limitation period or not?
2.2. Classifications of national law
2.2.1. A special limitation period for bribery and other economic offences?
2.2.2. Types of limitation periods: distinctions in national law
a. Limitation at different stages of criminal procedure: investigation, prosecution, and sentence
b. Relative and absolute limitation periods
c. Special period for aggravated bribery?
d. Different periods for natural and legal persons?
2.3. Suspension, interruption, and extension
2.4. The beginning and end of the limitation period
III. The Article 6 standard: limitation in foreign bribery cases
1. Comparative analysis: developing the Convention criteria
2. Limitation periods in practice: applying a Convention standard
2.1. An 'adequate' statute of limitations: holistic approach
2.2. Assessing the coherence of national rules
2.3. Provision for suspension, interruption, and extension
3. Limitation periods as a real obstacle in foreign bribery cases?
Article 7. Money Laundering
Article 7 - Money Laundering
II. Money flows related to corruption
1. The creation of 'slush funds'
III. International instruments against money laundering
1. Inventing a new paradigm
3. 'Spreading the Gospel'
4. Attempts to redefine the topic
5. Sharpening the focus: towards a 'risk-based approach'
6. The involvement of the private sector
IV. International instruments and fora addressing corruption - money laundering
V. The criminal law standard of the Convention (Article 7)
1. Defining money laundering
2. Objective elements of the offence
2.1. Bribery as a predicate offence to money laundering?
2.2. Laundering of the bribe?
2.3. Laundering of the proceeds of bribery?
2.4. Proof of provenance from crime
2.5. Predicate offence committed abroad
3. Subjective elements of the offence
4. Applicability to legal persons
VI. The regulatory standard of the Revised Recommendation
1. Obligations of financial operators
1.1. Customer identification and increased diligence
Section V.: Accounting Requirements, External Audit and Internal Company Controls
A. Adequate accounting requirements
B. Independent External Audit
C. Internal company controls
I. Introduction: the role of accounting in combating bribery of foreign public officials
II. OECD rules and standards on accounting and internal controls
2. Internal company controls
2.1.1. Internal Accounting controls
2.1.2. General internal controls
2.2. Annual statements and reports on internal controls
2.4.1. Channels for communication
2.4.2. Whistleblower protection
3. Independent external audit
3.1. Requirement to submit to external audit
3.2. Auditor independence
3.3. Auditor reporting obligations
2. Parties subject to Accounting sanctions
3. Minimum effectiveness and divergence in sanctions
3.1. Divergence in criminal sanctions
3.2. Divergence in civil sanctions
3.3. Divergence in administrative sanctions
Articles 9, 10, and 11. International Co-operation
Article 9 - Mutual Legal Assistance
Article 9 - Mutual Legal Assistance
Article 11 - Responsible Authorities
2.1. Mutual legal assistance in criminal matters
3. Contents of this chapter
II. An overview of international instruments for co-operation in criminal matters
1.1. The universal approach
1.2. The multilateral regional approach
1.2.1. The Council of Europe
1.2.2. The European Union
1.2.3. Other relevant agreements
1.3. The bilateral approach
1.4. National legislation on international co-operation
III. The accepted standards of international judicial co-operation
1. Requirements and governing principles
1.2. The dual criminality test
1.3. The speciality principle
1.4. The reciprocity rule
2. Exclusion of and objections to international co-operation
2.1. Exclusion of offences or offenders
2.1.2. Excluded offenders
2.2. Statute of limitations
2.4. Minimum procedural standards
IV. Setting the Co-operation Standard of the Convention
1. Overview of Articles 9, 10, and 11
2. The mutual legal assistance standard: Article 9
2.1. The scope of mutual legal assistance
2.2. The requirement of dual criminality
3. The extradition standard: Article 10
3.1. The legal basis for extradition
3.2. Aut dedere aut prosequi
3.3. The requirement of dual criminality
4. Channels of communications: Article 11
5. Global assessment: how do the co-operation provisions of the Convention fare when compared to other treaties?
V. Some additional issues of interest
1. International co-operation practised by victim states
2. The unsolved consequences of confiscation
3. The multiple prosecutions issue
Article 12. Monitoring and Follow-up
Article 12 - Monitoring and Follow-up
Article 12 - Monitoring and Follow-up
Section VIII.: Follow-up and institutional arrangements
1. The general issue of monitoring of the Convention
2. The so-called 'Tour de Table'
3.1. Self- and mutual evaluation provided for in Phase 1
3.1.2. The preparation of a preliminary report
3.1.3. WGB consultation and adoption of results
3.1.4. The results of 'Phase 1 monitoring'
4. 'Phase 1 plus' or 'Phase 1bis, monitoring
5.1. Self- and mutual evaluation provided for in Phase 2
5.2.1. The standard questionnaire
5.2.2. The supplementary questionnaire
5.3. On-site visits by the lead examiners and the Secretariat
5.4. Preliminary report assessing performance
5.5. WGB consultation and adoption of the report
5.5.1. Preparation of the WGB discussion
5.5.2. Consideration of the report by the WGB
5.5.3. The break-away sessions
5.5.4. Adoption of the report by the WGB
6. Analysis of Phase 2 outcomes
6.1. Disclosure and confidentiality
6.2. The role of civil society
6.3. Prior to the on-site visit
6.4. During the on-site visit
6.5. After the on-site visit
6.6. Fair and equitable treatment
II. The Post-Phase 2 Process
1. Follow-up to Phase 2 reports
1.1. The regular follow-up procedure
1.1.2. The written report
1.2. Follow-up in case of inadequate implementation of the Convention
3. What kind of monitoring after Phase 2?
Articles 13-17. Final Provisions
Article 13 - Signature and Accession
Article 14 - Ratification and Depositary
Article 15 - Entry into Force
I. The Rules of Article 13
1. The Convention and OECD members
1.1. Article 13 and existing OECD members
1.2. Article 13 and future OECD members
2. The Convention and non-OECD members
II. Full participation: the rules set out by the OECD council and WGB practice
1. Framework established by the Council
III. Possible future developments
IV. The rule of Article 14
V. The treatment of reservations in the Convention
1. Are reservations permitted?
2. Are reservations compatible with the object and purpose of the Convention?
VI. The role of the OECD Secretariat as depositary
VII. Ratification and implementing legislation
VIII. Article 15: introduction
1. A strong push for large countries to ratify first
2. The wish to maintain political momentum
X. A pragmatic 'fall back scenario'
XI. The amendment procedure contained in Article 16
1. Adoption of amendments by consensus
2. Adoption of amendments by other mechanism
3. Entry into force of amendments by consensus
4. Entry into force of amendments by other mechanism
XII. Other options available to state parties to complement the convention
1. Negotiation of Protocol or additional Convention
2. Modification of Convention among a limited number of state Parties
3. Agreement on interpretative notes
4. Revision of existing OECD Acts or adoption of new Acts
XIII. Withdrawal according to Article 17
Part III The Convention in Practice
The OECD Convention: A US Perspective on Combating Bribery in International Business
II. The OECD Convention - comparative advantages and challenges
1. The Convention in the context of other initiatives to criminalise transnational bribery
2. Challenges to the OECD Convention's effectiveness in a crowded international landscape
III. The OECD Convention's impact on US law and enforcement
2. Impact on the terms of the Foreign Corrupt Practices Act
2.1. Background to the Foreign Corrupt Practices Act
2.2. The anti-bribery provisions
2.2.1. Basic prohibitions
2.2.3. Third party liability
2.2.4. Exceptions and affirmative defences
2.2.5. Persons subject to the law and jurisdictional reach
2.2.6. Penalties and enforcement
2.2.7. Statute of limitations
3. Impact on the FCPA's accounting standards
3.4. Penalties and enforcement
4. Impact of the OECD Convention on FCPA enforcement
4.1. The effects of international co-operation on US enforcement
4.2. Prosecutions under the expanded statute
4.2.1. Increased prosecutions of foreign persons
4.2.2. Wider sweep of substantive conduct
4.3. The intangible effect of the OECD Convention
4.4. The use of money laundering laws in combating corruption
4.4.1. Of means and proceeds
4.5. Other factors affecting the level of US enforcement
IV. Other initiatives to combat transnational bribery - beyond the OECD Convention
1. Other anti-corruption initiatives of the OECD
1.1. Eliminating tax deductibility
1.2. Combating corruption in government-supported export financing
2. The role of the international financial institutions in enforcement
3. The role of corporate preventive measures, including internal compliance programmes
3.1. Compliance programme initiatives
3.2. Industry-specific initiatives
4. Preventive measures in the public sector
5. Private sector bribery
V. The outlook for the OECD Convention and other initiatives - issues for the next decade
1. A need for greater harmonisation?
2. The risk of multiple parallel proceedings
3. Revocation of contracts and concessions
4. The role of civil liability
5. Barriers and challenges on the demand side
Consolidated Bibliography
The OECD Convention on Bribery
：A Commentary
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