General recommendations
The OECD outlined meaningful steps to combat and deter such activity. General recommendations include but are not limited to: executing awareness-raising and training initiatives in both the public and private sector; ramping up the enforcement of criminal laws; bolstering international cooperation in investigations and related legal proceedings; revising tax regulations and laws to eliminate any semblance of support or foreign bribery; improving monitoring and reporting of foreign bribery activities; strengthening corporate accounting, audits, and other internal controls and compliance mechanisms; applying legal requirements on to banks and financial institutions to mandate appropriate record-keeping and make it available for review and investigative purposes; suspending or denying contracts or contractors in the field of public procurement when appropriate in the curtailment of foreign bribery; and expanding civil, commercial, and administrative laws and regulations to achieve the aforementioned anti-bribery goals.
The general recommendations include using a multi-faceted approach to conduct ongoing reviews and analyses of existing laws and their efficacy, taking a proactive approach towards such investigations, and ensuring prompt and comprehensive action by law enforcement as necessary. The recommendations encourage adequate resourcing for such investigations and enforcement activities, in order to minimize delays or risk running afoul of applicable statutes of limitation. The OECD also suggests that member countries use cooperation and information-sharing agreements with one another, to improve the detection, investigation, and prosecution of such bribery offenses.
Subject-matter area specific recommendations
The OECD’s guidance also lists several specific sets of recommendations. They are aimed at addressing a multitude of topics, including: the criminalization and enforcement of those who commit bribery of foreign public officials; the “demand” side of bribery offenses; sanctions and confiscation protocols; non-trial resolutions; international cooperation initiatives; tax deductibility; best practices for reporting foreign bribery and the subsequent protection of such whistleblowers; accounting, audit, and internal controls and ethics and compliance considerations; public advantages and public procurement; export credits; data protection; cooperation with non-members; and more.
There most recent guidance details are several standout recommendations detailed in this most recent guidance. First, the recommendations specifically note that member countries should routinely review their legal framework with respect to facilitation payments and adopt approaches that discourage such payments, as they are often illegal in the countries where they are made. Another notable recommendation includes the call for member countries to maximize information sharing with one another. The OECD suggests that member countries harnessing innovative technologies in ways that they may be mindful of, but not impeded by, data protection laws, which the OECD believes would aid in timely and proactive monitoring and enforcement of foreign bribery offenses. Furthermore, there is a common theme throughout the recommendations for countries to raise awareness of certain risks and scenarios that constitute solicitation or payment of bribes, whether through website publications or other awareness campaigns.
The role of companies in combatting foreign bribery
The second annex to the announcement includes a set of best practices for companies to adhere to, in furtherance of this same commitment to monitor and prevent foreign bribery of public officials. The OECD states that “Business organizations and professional associations may play an essential role in assisting companies, in particular SMEs, in the development of effective internal control, ethics, and compliance programmes or measures for the purpose of preventing and detecting foreign bribery.”
The private sector is mentioned repeatedly throughout the series of recommendations, as the OECD recognizes private business’ ability to provide informational resources and training to its personnel, but also to foster and encourage environments that encourage reporting and provide protection of whistleblowers. The private sector also remains well-equipped from a resourcing and technological standpoint to play a vital role in ongoing international efforts to combat foreign bribery.
What does this mean?
The OECD guidance reflects an increased focus on the anti-corruption landscape that have has been mirrored in part by announcements issued by the Biden Administration’s renewed commitment to buckling down corruption, and reflects common themes from the UN Opening Special Session on Corruption and the recommendations of the B20 Italy Integrity Task Force earlier this year. As technology continues to advance and new vulnerabilities are exploited, international cooperation will continue to be imperative in the fight against foreign bribery. International organizations such as the OECD will likely continue to place pressure on member countries to maximize cooperation regarding anti-bribery investigations, and urge timely and comprehensive enforcement and resolution of such offenses.
Authored by Peter Spivack and Carina Tenaglia.
