Colombia joined the OECD Anti-Bribery Convention on January 19, 2013. This should have significant effects on the country. Just ask Mexico, Brazil, the UK, and Canada. These countries, and others, have been inspired to improve their foreign bribery laws due to, more than anything, the periodic compliance reviews conducted by the OECD Working Group on Bribery in International Business Transactions (the OECD Working Group) as part of Convention membership.
Colombia is now the fifth Latin American country to embrace the Convention’s provisions prohibiting foreign bribery. As of January, it now commits to implementing and enforcing laws that are very similar to the U.S. Foreign Corrupt Practices Act. It also commits to periodic Working Group reviews. This means that Colombia’s anti-corruption laws will now be under the international spotlight. The international community can applaud progress, scrutinize delay, and offer support and technical assistance to facilitate compliance with the treaty.
What exactly is the OECD Working Group? The program has functioned for almost twenty years now, even before the 1997 OECD Anti-Bribery Convention was adopted. It is, in essence, a peer-review monitoring system. Members of each review vary, but they are all representatives of State Parties to the Convention. They meet every quarter in Paris. Their work is guided by certain principles, such as the need for coherent assessments and equal treatment, the importance of seeking expert assistance from within and outside of the OECD, and a careful balancing of each country’s desire for confidentiality with the need for transparency in the public eye. All monitoring reports are published on-line.
The OECD Working Group not only reviews compliance with the Convention but also with the OECD’s 2009 Anti-Bribery Recommendation that contains in Annex II the Good Practice Guidance on Internal Controls, Ethics, and Compliance. The OECD likes to boast that Transparency International calls the Working Group the “gold standard” of peer review processes.
The OECD Working Group follows a three-phase process. Phase 1 looks at the adequacy of the country’s legislation to implement the Convention. Phase 2 assesses whether the country is applying the legislation effectively. Phase 3 focuses on enforcement efforts and outstanding recommendations. As the phases progress, the reports often grow more critical. The Working Group must strike a diplomatic balance between acknowledging progress and highlighting deficiencies.
This peer review program has been one of the most successful and meaningful mechanisms in the international battle against foreign bribery. It has encouraged countries like Mexico and Brazil to take steps to improve their laws, described here and here. When the OECD Working Group called on the UK to make better progress, the UK answered with its UK Bribery Act. After being criticized for lax enforcement, Canada recently announced that it is redoubling its efforts to combat foreign bribery.
The group’s Phase 1 report on Colombia was published in December 2012. It recommends that Colombia:
- more clearly define “foreign official” in its legislation;
- make legal persons liable when lower level persons engage in foreign bribery;
- clarify that it is not necessary to establish the corrupt act of a natural person in order to establish the corrupt act of the legal person;
- increase sanctions;
- make explicit the applicability of territorial and nationality jurisdiction;
- clarify its commitment to mutual legal assistance; and
- explicitly disallow the tax deductibility of bribes to foreign officials.
FCPAméricas asked Tom Fox his thoughts on the importance of the OECD Working Group in situations like Colombia:
Membership in the OECD brings significant responsibilities. Every country that is party to the Anti-Bribery Convention has an interest in ensuring that all parties live up to their obligations. Country monitoring reports contain recommendations formed from rigorous peer-review examinations of each country. For instance, in its peer review of Canada, the OECD Working Group on Bribery made certain recommendations on Canada’s implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. In response to this report, on February 5, 2013 Bill S-14, the Fighting Foreign Corruption Act was introduced in Canada’s Senate. It proposed the most significant amendments to the Corruption of Foreign Public Officials Act (CFPOA) since it came into effect in 1999.
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