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OECD Revises Its “Recommendations” And Green Lights The Facade Of Enforcement


Recently, the OECD released a laundry list of updated recommendations for “further combating bribery of foreign public officials in international business transactions.”

As further proof that the OECD prioritizes quantity of enforcement over quality of enforcement (see here), the OECD is now recommending that member countries to the OECD Anti-Bribery Convention “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.”

By doing so, the OECD is green lighting the “facade” of enforcement (see here and here for prior articles on the subject).

Specifically, the OECD recommends:

“[T]hat member countries ensure that non-trial resolutions used to resolve cases related to offences under the OECD Anti-Bribery Convention follow the principles of due process, transparency, and accountability, and in particular:

i. adopt a clear and transparent framework regarding non-trial resolutions, including the authorities entitled to enter into non-trial resolutions, whether these resolutions are available to natural and/or legal persons, and the requirement for the alleged offender to admit facts and/or guilt, where applicable;

ii. develop clear and transparent criteria regarding the use of non-trial resolutions including, where appropriate, voluntary self-disclosure of misconduct, cooperation with law enforcement authorities, and remediation measures;

iii. provide clear and publicly accessible information on the advantages that an alleged offender may obtain by entering into a non-trial resolution;

iv. where appropriate, and consistent with data protection rules and privacy rights, as applicable, make public elements of non-trial resolutions, including:

a. the main facts and the natural and/or legal persons concerned;

b. the relevant considerations for resolving the case with a non-trial resolution;

c. the nature of sanctions imposed and the rationale for applying such sanctions;

d. remediation measures, including the adoption or improvement of internal controls and anti-corruption compliance programmes or measures and monitorship;

v. ensure that foreign bribery resolved by non-trial resolutions is punishable by transparent, as well as effective, proportionate and dissuasive sanctions as required by Article 3 of the OECD Anti-Bribery Convention;

vi. ensure that the non-trial resolution of foreign bribery cases does not constitute an obstacle to the effective investigation and prosecution of natural or legal persons in other countries, and generally allows for effective international cooperation, as provided under Articles 9 and 10 of the OECD Anti-Bribery Convention;

vii. ensure that the conclusion of a non-trial resolution with a natural or legal person is without prejudice to an enforcement action against other relevant natural or legal persons, where appropriate;

viii. ensure that non-trial resolutions are subject to appropriate oversight, such as by a judicial, independent public, or other relevant competent authority, including law enforcement authorities.”

Regarding the OECD’s recommendations, the U.S. is currently deficient in several areas including transparency and appropriate oversight.

Another OECD recommendation that caught my eye was the following:

“ensure that cases of bribery of foreign public officials are investigated and prosecuted without undue delay.”

As highlighted in this post, in recent years FCPA scrutiny has lasted on average approximately 4 years.

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