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On 23 October 2014, Transparency International published a report which analyzed the enforcement of the the Organisation for Economic Co-operation and Development’s Anti Bribery Convention. 41 countries, accounting for approximately two-thirds of world exports, signed the OECD Anti Bribery Convention. 15 years after entering into force only four countries “are actively investigating and prosecuting companies that cheat taxpayers when they bribe foreign officials to get or inflate contracts, or obtain licenses and concessions,” Transparency International says in its tenth annual progress report on OECD Anti-Bribery Convention enforcement. Five countries were classified as having “moderate enforcement,” while another eight had what was deemed to be “limited enforcement.” 22 have “little or no enforcement” procedures in place to ensure their companies do not participate in or facilitate corruption.

Enforcement of Anti-Bribery Convention Country Accounting for World Trade Export
Active Enforcement US, Germany, UK and Switzerland 23,1 %
Moderate Enforcement Italy, Canada, Australia, Austria and Finland 8,3 %
Limited Enforcement France, Sweden, Norway, Hungary, South Africa, Argentina, Portugal, New Zealand 7,6 %
Little or no Enforcement Japan, Netherlands, Korea (South), Russia, Spain, Belgium, Mexico, Brazil, Ireland, Poland, Turkey, Czech Republic, Luxembourg, Chile, Israel, Slovak Republic, Colombia, Greece, Slovenia, Bulgaria, Estonia 27 %

The four leading enforcers (Germany, Switzerland, United Kingdom, United States) completed 225 cases and started 57 new cases from 2010-2013. The other 35 countries completed 20 and started 53 according to Transparency International. Twenty countries have not brought any criminal charges for major cross-border corruption by companies in the last four years, says the report. Canada is the only country to show significant improvement since last year’s report, having significantly improved its foreign bribery law and started several investigations. Regarding the Netherlands, surprisingly one of the countries with “little or no enforcement”, the report says: “In view of the size of the Dutch economy, its level of exports, Foreign Direct Investment, and involvement in high risk sectors, the absence of any foreign bribery convictions to date is seriously concerning. There are many mailbox companies registered in the Netherlands and 12 of the 22 allegations of foreign bribery which the OECD recorded in their 2012 report involved such companies.” Here you can find a nation-by-nation breakdown including “Cases and Investigations, Recent Developments, Recommendations, Inadequacies in Legal Framework and Legal Enforcement”. The OECD Convention as well as Transparency International’s publications have proven influential over the past years. The UK received sharp criticism from the OECD over its lack of bribery enforcement in the wake of Downing Street’s 2006 intervention into the Serious Fraud Office’s (SFO) investigation of BAE Systems’ alleged bribery in Saudi Arabia. The criticism pushed the UK to overhaul its anti-corruption legislation in 2010 introducing the Bribery Act 2010. Reasons for unsuccessful enforcement are various but often narrow down to insufficient resources and inadequate complaints mechanisms and whistleblower protection. Poor inter-institutional and international communication also cause lack in enforcement. Staff of the respective authorities often still lack understanding of the foreign bribery offence.  Delays in processing cases are a major obstacle for enforcement as they often result in the expiry of statutes of limitation. However, in some countries, such as Spain, Turkey or Greece, there is still even a lack of public awareness. Cross-border bribery in international business deals thrives also because investigators lack the resources to track the complex money laundering techniques increasingly used to conceal bribery deals, Transparency International says. “Today corrupt deals are increasingly masked by sophisticated shell companies whose real beneficial owner is not known, even to authorities.” As a response Transparency International is calling for greater multinational cooperation. The group also repeated its call towards the EU and G20 to ensure the publication of beneficiary ownership in public registers of company information. The World Bank’s Integrity Vice Presidency annual report for 2014 also called for greater international cooperation. “When money is stolen through corruption in one country, it often finds its way across borders into financial safe havens. When corruption hunters try to trace and recover these illicit proceeds, jurisdictional hurdles and financial secrecy often stymie their efforts.” World Bank President Dr. Jim Yong Kim said. The Secretary-General of the OECD, Mexico’s Angel Guerria, said that the “G20” group of major nations has formed an anti-corruption working group. The Anti-Corruption Action Plan for 2013-2014 already says: “We will strengthen international cooperation to assist our own and others’efforts to tackle corruption and bribery and facilitate asset recovery. The G20 countries will encourage and share information on relevant technical assistance in this area among G20 countries and developing country partners.”


Isabell Gernand is a member of Baker & McKenzie's Dispute Resolution Practice Group in Munich. She previously worked in law firms in Washington, DC and Düsseldorf, assisting in corporate litigation, corporate compliance, antitrust and data privacy. Ms. Gernand assists clients in a broad range of corporate litigation and corporate compliance matters including internal investigations, anti-corruption due diligence, risk minimization strategies and related civil litigation.

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