Development and Society
Corporate Social Responsibility
- Bribery and Corruption
Fourth Report to Parliament (October 3, 2003)
Implementation of the Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, and the
Enforcement of the Corruption of Foreign Public Officials Act
Table of Contents
Background
This is the fourth Report to Parliament under the Corruption
of Foreign Public Officials Act ("the Act"). For more detailed
background information on the Act and on the Organisation for Economic
Co-operation and Development (OECD) Convention on Combating Bribery
of Foreign Public Officials in International Business Transactions,
please see the Third Report
to Parliament.
To date, 35 states have signed the Convention, including all 34
original members of the OECD Working Group on Bribery in International
Business Transactions ("the Working Group"). The Working
Group comprises the 30 member states of the OECD and five non-members
of the OECD: Argentina, Brazil, Bulgaria, Chile, and Slovenia. Thirty-four
signatory states have now ratified the Convention with Ireland being
the only member state yet to ratify. Ireland has, however, already
passed legislation implementing the Convention into its domestic
law. Slovenia is currently the only member state which has yet to
pass implementing legislation.
Enforcement of the Act
General
By creating a new separate Act to deal with corruption of foreign
public officials, the federal government has allowed for federal,
as well as provincial, prosecution.
In an effort to reinforce the practice of sharing of information
on these cases among police agencies, the Royal Canadian Mounted
Police (RCMP) has undertaken to work with its partners to establish
a protocol whereby police agencies would inform the RCMP about cases
involving the Corruption of Foreign Public Officials Act.
The RCMP PROOF Criteria and Weights: Economic Crime document
provides guidelines to the RCMP on determining the priority of a
case for investigation by assigning a weight to it. The document
already places a very high priority on fact situations involving
corruption. However, corruption will be given even more emphasis
as a result of the planned inclusion of the Corruption of Foreign
Public Officials Act in the PROOF document.
Recommendation IV of the OCED Council on Combating Bribery in International
Business Transactions urges Member countries to disallow the tax
deductibility of outlays and expenses related to the bribery of
foreign public officials. The Federal Government and all provinces,
except Quebec, deny the tax deductibility of outlays made or expenses
incurred in the bribery of foreign public officials. Quebec, however,
is in the process of implementing this prohibition.
Prosecution
We are aware of one prosecution under the Act, currently being
prosecuted by the Alberta Government. Hector Ramirez Garcia, a U.S.
immigration officer, who worked at the Calgary International Airport,
pleaded guilty, in July 2002, to accepting bribes from Hydro Kleen
Group Inc., an Alberta-based company, in exchange for showing favour
to the company. Garcia was sentenced to, and has served, six months
imprisonment.
Hydro Kleen, its president and an employee, have been charged under
the Corruption of Foreign Public Officials Act with, among
other things, two counts of bribing Garcia. The case is currently
at the preliminary inquiry stage in Alberta.
Justice Canada has contacted provincial authorities to ascertain
if there have been any other provincial prosecutions under the Act.
No others have been recorded, either federally or provincially.
Awareness Raising
As illustrated in previous annual reports, considerable efforts
have been made to make persons aware of the Corruption of Foreign
Public Officials Act, including the following:
-
Officials continue to make presentations at conferences and
at various meetings in Canada;
-
Consultations continue to take place with the provinces and
territories;
-
The Department of Justice issued a publication: The Corruption
of Foreign Public Officials Act: A Guide. The Guide has
been updated to reflect amendments to the Act and has been distributed
and posted on the Department of Justice web site;
-
The Act continues to be featured in the Department of Justice's
Federal Prosecution Service Deskbook;
-
The First, Second and Third Annual Reports to Parliament are
featured on the web site of the Department of Foreign Affairs
and International Trade, along with other material on bribery
and corruption as it relates to corporate social
responsibility.
-
The Department of Foreign Affairs and International Trade
continues to provide training for its trade commissioners and
commercial officers on the Act and the Convention;
-
The Trade Commissioner Service of the Department of Foreign
Affairs and International Trade recently added the promotion
of corporate social responsibility, which includes counselling
Canadian businesses against engaging in foreign bribery, to
its list of roles and activities. Horizons, one of the Department’s
intranet websites, now provides information to Canadian trade
officers on how to counsel businesses abroad on the Corruption
of Foreign Public Officials Act and the risks of bribery;
-
The Investment Trade Policy, and the Human Rights, Humanitarian
Affairs and Women’s Equality Divisions of the Department
of Foreign Affairs and International Trade are in the process
of distributing to Canadian missions abroad recommendations
on how they should promote corporate social responsibility to
Canadian businesses abroad. These recommendations include specific
instructions on how to promote the Corruption of Foreign
Public Officials Act and to counsel businesses against
engaging in foreign bribery;
-
Team Canada Inc plans to add links on the Corruption of
Foreign Public Officials Act to its Export Source website
and to refer to the Corruption of Foreign Public Officials
Act in the next edition of its Step by Step Guide to
Exporting;
-
The Canadian International Development Agency (CIDA) has been
engaged in raising the awareness of anti-corruption issues within
the agency for several years now. In 1999, an administrative
bulletin on Anti-Corruption Clause was circulated to advise
CIDA personnel of the need to include an anti-corruption clause
in all contracts and contribution agreements issued by CIDA.
As part of CIDA's inventory of tools, its Contracting Management
Division produced in 2000 The Protocol for Dealing with
Allegations of Corruption which is currently available
in both languages on Entre Nous. The same year CIDA published
a document entitled, Anti-Corruption Programming: A Primer.
CIDA will conduct a training workshop in November 2003 to inform
and train its staff on corruption. In addition, a number of
policy products - programming framework, corruption indicators,
etc. - are being planned for this year to sensitize CIDA's bilateral
and international programming on issues of corruption.
-
Currently, several CIDA branches are collaborating to develop
a "CIDA position" regarding doing business with firms
convicted overseas of corruption. CIDA plans to seek reaction
to its position from several government departments active internationally
(eg Department of Foreign Affairs and International Affairs,
Export Development Canada) and from key domestic departments
(eg Treasury Board of Canada Secretariat, Public Works and Government
Services Canada). CIDA's "position" may also be presented
at the OECD. CIDA is fully cognizant that anti-corruption issues
have become extremely important in the current context in which
development policies have to take into account governance and
security issues;
-
Export Development Canada (EDC) has taken steps to raise the
awareness of the Corruption of Foreign Public Officials
Act among its customers. EDC posts information on its website
about corruption and bribery, including the Corruption of
Foreign Public Officials Act, the Convention and the OECD
Export Credits Group Action Statement on Bribery and Officially
Supported Export Credits. At various times in the last two years,
EDC has written to its customers to inform them about the Convention
and the Corruption of Foreign Public Officials Act.
Additionally, EDC sponsored a cross-Canada workshop for companies
in the spring of 2002, and has developed an anti-corruption
brochure for its customers. Most recently, EDC distributed an
anti-corruption brochure to inform customers of the potential
risks they face if exposed to corrupt business practices, and
to encourage the development of corporate best practices in
this area. EDC will continue to exploit opportunities to convey
to customers its position on this issue; and
-
The Canada Customs and Revenue Agency (CCRA) is in the process
of developing a section in its Audit Manual to deal with the
application of section 67.5 of the Income Tax Act.
This provision prohibits the deduction of outlays and expenses
involved in the bribery of foreign public officials. The CCRA
Investigation Manual, which currently refers to bribery offences
under the Criminal Code, will be revised to include
a reference to the Corruption of Foreign Public Officials
Act and the new section in the Audit Manual.
Monitoring Implementation of the
Convention
The Convention aims to stop the flow of bribes and, among other
benefits, to remove bribery as a non-tariff barrier to trade. The
Convention and the 1997 Revised Recommendation of the OECD Council
on Combating Bribery in International Business Transactions provide
for self and mutual evaluation by Members of the OECD Working Group
on Bribery in International Business Transactions (the Working Group).
The aim of the review exercise is to ensure the effectiveness of
national instruments to combat bribery and a level playing field.
The evaluation takes place in two phases. The first is designed
to evaluate whether the legal texts through which participants implement
the Convention meet the standard set by the Convention, as well
as initial actions to implement the 1997 Revised Recommendation.
The second phase of evaluations study and assess the structures
put into place to enforce national laws and the application of the
laws and rules in practice.
Phase 1
Phase 1 involves the review of each Member Country’s implementing
legislation to determine if it meets the requirements of the Convention.
To date, 32 of the 35 Member Countries have undergone Phase 1 reviews,
with Chile, Slovenia and Turkey still to be examined. It is expected
that all Phase 1 reviews will be completed by 2004. Where a country’s
implementing legislation has been found not to meet the standards
of the Convention, a Phase 1bis examination is conducted to determine
if legislation implemented in response to the Phase 1 review meets
Convention standards.
Most of Phase 1 reviews are available on the OECD's web site. Annex
“A” to this Report contains a list of web sites where
individual country evaluations may be viewed. Paper copies individual
public country evaluations may also be obtained from the Criminal
Security and Treaty Law Division of the Department of Foreign Affairs
and International Trade by phoning (613) 995-1050.
Canada's Phase 1 Evaluation
Canada's implementing legislation was reviewed by the Working Group
8 – 9 July 1999. The Working Group concluded that the Act
meets the requirements set by the Convention. The Working Group
also noted that some issues may benefit from further examination
during the Phase 2 evaluation. These include the exemption of reasonable
expenses incurred in good faith, Canada's choice not to establish
nationality jurisdiction with respect to bribery of foreign public
officials, payments to secure performance of any act of a routine
nature from the purview of the offence and sentencing courts' discretion
in imposing fines.
Phase 2 Evaluations
During the Phase 2 evaluation, the Working Group evaluates, among
other things, Member Countries’ enforcement of their foreign
bribery legislation.
The Working Group has developed a questionnaire and procedures
for Phase 2 evaluations, including terms of reference for on-site
visits. The questionnaire forms the preliminary basis upon which
Phase 2 evaluations are conducted, although evaluators may ask supplementary
questions in any given area. On-site visits by the Secretariat and
lead examiners constitute another major aspect of the evaluation
process, and include meetings with government representatives as
well as informal exchanges of views with key representatives of
the private sector and civil society. (Each examined country is
consulted on the best manner of obtaining input from the private
sector and civil society.)
Following an on-site visit, the Secretariat, in consultation with
the lead examiners, drafts a preliminary report. The Working Group,
meeting in plenary, then reviews and adopts the report. The adopted
report is later transmitted to the OECD Council.
Finland was the first country to be evaluated in Phase 2 and the
Working Group reviewed and approved the report on Finland in 2003.
Since then, the Working Group has also reviewed, and approved reports
for, the United States, Iceland, Germany and Bulgaria. Canada was
examined in Phase 2 earlier this year and the Working Group adopted
the report on Canada during its 17 to 19 June 2003 meeting.
Canada and Italy are currently participating as lead examiners
in the Phase 2 review of France. It is expected that the Working
Group in plenary will adopt the report on France at its October
2003 meeting. All Phase 2 examinations should take place by the
end of 2007.
Canada’s Phase 2 Evaluation
At its 17 to 19 June 2003 meeting, the Organisation for Economic
Co-operation and Development (OECD), Working Group on Bribery (WGB)
approved, in principle, the report on the evaluation of Canada's
enforcement of its laws against foreign bribery. It is expected
that this report will be finalised, released and published on the
OECD website in late 2003.
Overall, the report is positive in its evaluation of Canada's fight
against corruption. However, the report makes recommendations which,
in the opinion of the WGB, would improve Canada's measures and mechanisms,
to prevent, detect and prosecute the offence of bribing a foreign
public official. These recommendations deal with the following issues,
among others:
-
increasing awareness promotion of the Corruption of Foreign
Public Officials Act;
-
considering clarifying federal policy statements on reporting
wrongdoing and illegal acts in the workplace;
-
issuing instructions to missions abroad regarding the reporting
of credible allegations of corruption by Canadian companies;
-
reviewing the reporting policy of CIDA and EDC regarding credible
allegations of violations of Canada's foreign bribery laws;
-
considering revisiting the policies of CIDA and EDC on dealing
with applicants convicted of bribery and corruption; and
-
compiling certain statistics on Canada's foreign bribery and
other offences.
Of the 16 recommendations made, 12 call on Canada to review and/or
consider making changes to its laws, policies and or practices.
Of the four recommendations calling for Canada to make positive
changes to its policies or practices, none require new legislation
nor legislative amendments.
Although the OECD's post Phase 2 follow-up procedure is yet to
be finalised, it appears likely that Canada will be called on to
update the WGB on its implementation of the recommendations in one
year, i.e. by June 2004, followed by a more detailed report the
following year, i.e. June 2005. Both Canada’s implementation
of the recommendations and the new follow-up procedure will be discussed
in subsequent annual reports to Parliament.
Implementation of the Convention
Thirty-four Members of the OECD Working Group on Bribery had ratified
the Convention as of the date of preparation of this report. Annex
“B” to this report contains information on the ratification
status of the Convention as of 20 June 2003.
Thirty-two Members of the Working Group (including Canada) have
had their implementing legislation evaluated as part of the peer
review process. The other Members who have been evaluated include:
Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Czech
Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland,
Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands,
New Zealand, Norway, Poland, Portugal, Slovak Republic, Spain, Sweden,
Switzerland, the United Kingdom, and the United States. Finland,
the United States, Iceland, Germany, Bulgaria and Canada have also
had their enforcement mechanisms evaluated as part of the Phase
2 review.
The following is a chart, based on Member submissions to the OECD,
of steps taken and planned future actions by other participating
countries to ratify and implement the Convention, current as of
19 June 2003:
STEPS TAKEN AND PLANNED FUTURE ACTIONS BY PARTICIPATING
COUNTRIES TO RATIFY AND IMPLEMENT THE CONVENTION ON COMBATING BRIBERY
OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS1
Information as of 19 June 2003
Thirty-four countries have deposited their instrument of
ratification with the Secretary-General of the OECD: Iceland
(17 August 1998), Japan (13 October 1998), Germany (10 November
1998), Hungary
(4 December 1998), United States (8 December 1998), Finland (10
December 1998), United Kingdom (14 December 1998), Canada (17 December
1998), Norway (18 December 1998), Bulgaria, (22 December 1998),
Korea (4 January 1999), Greece (5 February 1999), Austria (20 May
1999), Mexico (27 May 1999), Sweden (8 June 1999), Belgium (27 July
1999), Slovak Republic (24 September 1999), Australia (18 October
1999), Spain (14 January 2000), the Czech Republic (21 January 2000),
Switzerland (31 May 2000), Turkey (26 July 2000) France (31 July
2000), Brazil (24 August 2000), Denmark (5 September
2000), Poland (8 September 2000), Portugal (23 November 2000), Italy
(15 December 2000), Netherlands (12 January 2001), Argentina (8
February 2001), Luxembourg (21 March 2001 ), Chile (18 April 2001)
New Zealand (25 June 2001) Slovenia2 (6 September 2001).
| Argentina |
The Argentine Republic approved the Convention
by Law N° 25.319 on 18 October 2000 and deposited the instrument
of ratification on 8 February 2001 with the OECD Secretary-General.
To conform to the Working Group's recommendations, a draft
bill has been prepared to amend Article 258 bis of the Penal
Code adapting the offence of bribery of a foreign public official
to the standards of the OECD Convention. The draft bill has
been approved by the Parliamentary House of Representatives
in 2002, at the end of the ordinary sessions’ period.
The draft is now being considered by the Commission of Criminal
Law and Penitentiary Affairs at the Senate.
On another related issue, the Ministry of Justice and Human
Rights elaborated a draft bill on the criminal liability of
legal persons, in accordance with the standards of the Convention,
which is now being considered by a working group in order
to report conclusions on the subject to the Minister.
Argentina deposited the instrument of ratification of the
Inter-American Convention against Corruption (ICAC) on 9 October
1997. In February 2003, under the recently adopted monitoring
procedure, the Committee of Experts within the Follow-up Mechanism
for the implementation of the ICAC, evaluated Argentina’s
legislation related to certain articles of the ICAC. The result
of this evaluation will be published on the website of the
OAS or of the Argentinean
Anticorruption Office (spanish only). |
| Australia |
Legislation to implement the Convention has
been passed by the Australian Parliament and received Royal
Assent on 17 June 1999. The instrument of ratification has been
deposited with the OECD Secretary-General on 18 October 1999.
The legislation came into effect on 18 December 1999.
The domestic offences of bribery have been updated and the
penalties raised to those imposed on bribery of foreign public
officials. |
| Austria |
The legislation implementing the Convention
is in force in Austria since 1 October 1998. The First Chamber
of Parliament passed the bill for ratification on 24 March 1999.
The ratification process was finalised and the instrument of
ratification deposited with the OECD Secretary-General on 20
May 1999. Austria has to adopt legislation on the status
of legal persons in order to conform to the OECD Convention,
the Second Protocol to the Convention for the Protection of
the Financial Interest of the European Union and other EU
instruments as well as the Council of Europe Criminal Law
Convention on Corruption, signed on 13 October 2000.
The discussion process on reviewing the status of legal
persons is taking longer than expected. The meeting organised
by the Government parties in Parliament in early June 2002
with experts, Members of Parliament, and private sector representatives
resulted in a favourable appreciation of the concept of penal
sanctions by a large majority of experts. The Minister of
Justice is ready to present a draft bill on penal responsibility
of legal persons later this year; however, the necessary agreement
within the government has not been reached yet because the
basic concept is still contested and some political players
favour civil or administrative sanctions. |
| Belgium |
Ratification and implementation of the Convention
involved two different steps. With respect to revision of penal
law to comply with the obligations under the Convention, the
legislative proposal was passed by Parliament at the beginning
of February 1999, it was published on 23 March and entered into
force on 3 April. The ratification bill was adopted by Parliament
on 22 April and it received royal sanction on 9 June 1999. The
instrument of ratification has been deposited with the OECD
Secretary-General on 27 July 1999. |
| Brazil |
Brazil ratified the Convention in 2000. The Senate
approved the ratification bill on 12 June 2000. The President
signed the bill on 6 August and the instrument of ratification
was deposited with the OECD Secretary General on 24 August 2000.
The Convention text was published in the Official Gazette on
30 November 2000. The draft implementation bill was submitted
to Congress and approved by the Federal Chamber of Deputies
in October of that same year and by the Senate in June 2002.
Sanctioned by the President on 10 June 2002, Law no. 10.467/2002
came into force with the publication in the Official Gazette
on 11 June 2002.
While the Convention had force of law in Brazil when it
was ratified, the implementation law has the purpose of responding
to certain Constitutional requirements related to criminal
law. Law no. 10.467/2002 provides for a definition of corruption
in international business transactions; a definition of foreign
public official, which includes officials of enterprises controlled,
totally or partially, by a foreign government and officials
of intergovernmental organizations; punishment of corruption
of foreign public officials with prison terms of one to eight
years and fines, and increase by one third in imprisonment
if the purpose of the corrupt act is achieved; punishment
of illicit lobbying or conspiracy to corrupt foreign public
officials in international transactions; and bribery and corruption
of foreign public officials as predicate offences for the
money laundering legislation.
A number of other legal texts are also relevant to the Convention,
in particular the Criminal Code (Title 11), Law no. 1069/1969
(obligation of declaring money and assets existent in foreign
countries), Law no. 7492/1986 (crimes against the financial
system), Law no. 8027/1990 (Code of Conduct for public officials
and employees), Law no. 8137/1990 (crimes against the tax
system), Law no. 8429/1992 (illicit enrichment of public officials
or employees), Law no. 8730/1993 (obligation for public officials
of declaring their assets and incomes), Law no. 9034/1995
(criminal organizations), Law no. 9613/1998 (money laundering)
and Law no. 9840/1999 (corruption of elected officials and
fraud in elections).
Brazil also deposited, on 24 July 2002, the instrument of
ratification of the Inter- American Convention against Corruption,
signed in Caracas, on 29 March 1996.
Brazil envisages to hold a number of national, regional
and global anti-bribery events to raise awareness, including
among the private sector and civil society. These different
events will be converging towards the 2005 Global Forum on
Fighting corruption, to be held in Brazil. |
| Bulgaria |
Bulgaria ratified the Convention on 3 June 1998
and deposited its instrument of ratification on 22 December
1998 with the Secretary-General of the OECD. The implementing
legislation, including the definition of foreign public official,
was passed by Parliament on 15 January 1999 and came into force
on 29 January 1999. The text of the Convention was published
in the Official State Gazette on 6 July 1999. From this date
on, it is considered part of the domestic legislation.
Subsequent to the Working Group's recommendations, Parliament
adopted on 8 June 2000, amendments to the Penal Code relating
to the criminalisation of “offering” and “promising”
of a bribe as well as the abolition of the concept of “provocation”
as a defence. On 13 September 2002, the Parliament adopted
a law amending the Penal Code to introduce non-material (non-valuable)
advantages into the scope of the definition of bribery and
to revoke the defence applicable to active bribery of foreign
public officials. Furthermore, fines have been introduced
as an additional sanction to imprisonment for a bribery offence.
Finally, private sector bribery, trading in influence, passive
bribery of foreign public officials and bribery of arbitrators
have been made criminal offences.
Bulgaria ratified both the Council of Europe Civil Law Convention
on Corruption (June 2000) and the Criminal Law Convention
on Corruption (November 2001). |
| Canada |
The Corruption of Foreign Public Officials
Act (CFPOA) was adopted by the Senate on 3 December 1998
and by the House on 7 December 1998; it received Royal Assent
on 10 December 1998. The Convention was ratified on 17 December
1998. The law came into force on 14 February 1999, a day before
the entry into force of the Convention. As the result of revisions
to Canada's Criminal Code, consequential amendments were made
to the CFPOA which were necessary as part of more general changes
to the Criminal Code. The text of Bill C-24, which includes
amendments to the CFPOA, received Royal Assent on 18 December
2001, and came into force on 7 January 2002.
Three bills directly or indirectly linked to the fight against
corruption have been introduced in 2003. Another Bill C-24,
which is to regulate campaign financing, was introduced in
January 2003 and passed third reading in the House of Commons
on 11 June 2003. It became law on 19 June 2003. Bills C-45
and C-46 were introduced in Parliament in early June 2003.
Bill C-45 codifies and modernises the Canadian criminal law
in relation to corporate criminal liability. Bill C-46 deals
with serious capital market fraud. This bill creates new offences
relating to insider trading; establishes new provisions in
relation to protection of whistleblowers and creates investigatory
structures and enforcement measures.
In May 2003, the Canadian government sponsored, and participated
in, a symposium organised by Transparency International Canada
to, among other things, raise awareness on preventing and
fighting corruption in general and on the OECD Anti-Bribery
Convention in particular. |
| Chile |
The draft ratification law of the Convention
was presented to the Chamber of Deputies on 5 January 1999 which
approved it on 23 March 2000. The draft bill, which had been
sent to the Senate on 4 April, was approved in March 2001. Chile
deposited its instrument of ratification with the OECD Secretary-General
on 18 April 2001.
A bill to implement the Convention was submitted to Parliament
in December 2001; it passed the Chamber of Deputies in July
2002 and the Senate in September 2002. The amendment to the
Chilean Penal Code was published in the Official Gazette as
an Act of the Republic in full effect in the first week of
October 2002. The implementing legislation establishes the
offence of bribery of foreign public official, provides for
a definition of “foreign public official”, it
introduces criminal liability of legal persons as well as
penalties for omissions and falsifications by companies of
their books and records.
The Chilean Government has recently created a National Corruption
Expert Group.This group is constituted of public officials
from the most important entities in the Chilean Administration,
specialised in the prevention, detection and prosecution of
acts of corruption. The activity of this group will be co-ordinated
by the Ministry of Foreign Affairs. The group’s purpose
will be, among others, to support the activities of the OECD
Working Group on Bribery in International Business Transactions
in Chile.
Draft legislation for the creation of a Financial Intelligence
Unit (FIU) has been submitted to Congress. This draft law,
which is aimed at preventing money laundering, establishes
money laundering as a predicate offence in relation to bribery
of domestic and foreign public officials. |
| Czech Republic |
The draft amendment to the Criminal Code was
adopted by Parliament and came into force on 9 June 1999. The
ratification process was finalised and the instrument of ratification
deposited with the OECD Secretary-General on 21 January 2000.
The Convention entered into force internally on 21 March 2000.
An amendment to the Income Tax Act stating explicitly that
bribes are not deductible expenses entered into force on 1
January 2001. A new Act on Auditors also entered into force
on 1 January 2001. Accordingly, auditors have to notify immediately
any indications of possible acts of bribery to the statutory
and supervisory bodies of the company. The Parliament approved
an amendment to the Accounting Act in September 2001. This
amendment, which explicitly prohibits offthe- book accounts
as well as off-the-book transactions and increases fines,
entered into force on 1 January 2002.
The government approved, on 9 April 2001, the legislative
concept of re-codification of the Criminal Code, which will
include the introduction of criminal responsibility of legal
persons. The draft Criminal Code should be finalised and submitted
to Parliament during 2003 and come into force in 2005.
The Czech Republic ratified the Council of Europe Criminal
Law Convention on Corruption (8 September 2000) and signed
the Civil Law Convention (9 November 2000). |
| Denmark |
The Government submitted draft legislation on
both ratification and implementation of the Convention in Spring
1999 to Parliament. The draft legislation was resubmitted to
Parliament in October and went through the first reading on
27 October 1999. On 30 March 2000, the draft law to implement
the Convention was adopted by Parliament and came into force
1 May 2000. The instrument of ratification was deposited with
the OECD Secretary General on 5 September 2000. The legislation
is publicly available, including on the Internet. |
| Finland |
The legislation for ratification and implementing
legislation were approved by Parliament on 9 October 1998 and
Finland deposited its instrument of ratification on 10 December
1998. The amended Penal Code entered into force on 1 January
1999. The Convention entered into force internally on 15 February
1999.
The Finnish parliament has started to review amendments
to the Criminal Code with a view to a) eliminate the current
dual criminality provision relating to the bribery offence
of a foreign public official; and b) to extend the active
and passive bribery offence to Members of Parliament.
In light of the recommendations of the phase 2 examination
by the Working Group, the Finnish government established a
joint co-ordination body aimed at fighting corruption. The
co-ordination body, which became operational at the end of
2002, is composed of officials from different ministries,
such as Justice, Interior, Trade and Industry as well as the
National Bureau of Investigation, the Office of the Prosecutor
General, the Taxation Office, Customs Authorities and the
confederation of Municipalities.
Public discussions on combating transnational public and private
bribery and corruption have increased in Finland. Also, to
ensure better awareness by the Finish business community of
the current anti-bribery measures and provisions, a seminar
involving government, private sector and civil society will
be held in March 2003. |
| France |
The law authorising the ratification of the Convention
was adopted on 25 May 1999 (law n° 99-424 of 27 May 1999).
The National Assembly adopted the implementing legislation on
30 June 2000. France deposited its instrument of ratification
on 31 July 2000. The Convention entered into force together
with the implementation law on 29 September 2000. |
| Germany |
Germany ratified the Convention on 10 November
1998. The implementing legislation contained in the Act on Combating
International Bribery of 10 September 1998 entered into force
together with the Convention on 15 February 1999.
Legislation implementing the European anti-corruption instruments,
notably the Second Protocol to the Convention for the Protection
of the Financial Interest of the European Union as well as
the European Joint Action on bribery in the private sector,
was adopted by Parliament and came into force on 30 August
2002. The law contains amendments to the Penal Code, extending
the domestic private bribery offence to international bribery,
as well as to the Administrative Offences Act, extending the
provisions on sanctioning of legal persons and providing for
higher fines. The adoption of the Second Protocol to the Convention
for the Protection of the Financial Interest of the European
Union and of the EU Bribery Convention was finalised and published
in the Official Gazette in October 2002. The Second Protocol
to the Convention for the Protection of the Financial Interest
was ratified on 5 March 2003. |
| Greece |
The Convention was ratified by Parliament on
5 November 1998. The implementing legislation was passed by
Parliament the same day. Greece deposited its instrument of
ratification on 5 February 1999.
To conform to the Working Group's recommendations, amendments
to the implementing legislation have been adopted by Parliament.
These amendments, which have been published in the official
gazette on 24 December 2002, include a definition of foreign
public officials by reference to Art. 1 of the Convention
and address the responsibility of legal persons in reference
to "enterprises and legal persons".
The Ministry of Justice circulated a questionnaire to all
prosecutors' offices during the summer 2000 in order that
they report back on all possible cases concerning the application
of the Convention. |
| Hungary |
The texts of ratification of the Convention and
implementing legislation (the Amendment of the Criminal Code)
were submitted to Parliament in May 1998. The text for ratification
was approved on 29 September 1998 and Hungary deposited its
instrument of ratification on 4 December 1998. The Amendment
of the Criminal Code was passed in December 1998 and came into
force on 1 March 1999.
The government adopted in March 2001 a resolution to fight
corruption. This resolution is broadly designed, including
measures relating to criminalisation of corruption, to political
parties’ financing and accounting practices as well
as public procurement rules.
A bill with amendments to the penal code has been adopted
by Parliament in December 2001. These amendments relate notably
to the elimination of the defence in the case of the bribe
being given upon the initiative of the foreign public official,
penalties and statute of limitations, the confiscation regime
and the sanctioning of legal persons. A bill on the responsibility
of legal persons has also been approved in December 2001 by
Parliament. The bill provides for criminalisation of legal
persons and of their managers that have committed criminal
acts for the account of the legal person or that have omitted
to control their personnel.
A new bill, aimed at increasing transparency, has come into
effect on 9 June 2003. This law extends, among others, the
competence of the financial controller to private companies
which benefit from public funding.
The Government is preparing draft legislation regulating
public procurement; a draft bill will probably be presented
to Parliament in the second half of 2003. Hungary signed the
Council of Europe Criminal Law Convention on Corruption on
15 January 2003. |
| Iceland |
The Icelandic government deposited its instrument
of ratification on 17 August 1998 and the implementing legislation
was passed by Parliament on 22 December 1998.
The Icelandic Parliament passed legislation n° 144,
1998, on 17 December 1998 on Criminal Responsibility of Legal
Persons. It came into force on 22 December 1998. This legislation
was passed along with the implementation legislation.
On 27 April 2000, the Icelandic Parliament passed legislation
amending the General Penal Code. The amendments came into
effect on 9 May 2000. The ceiling on the level of fines for
legal persons was removed and the statute of limitations for
legal persons was increased to up to five years. |
| Ireland |
The Prevention of Corruption (Amendment) Act,
2001 is the legislation which enables Ireland to ratify a number
of Conventions dealing with corruption, drawn up by the European
Union, the Council of Europe and the OECD respectively. It was
signed into law by the President on 9 July, 2001.
The Act commenced by Ministerial order with effect from
26 November 2001 with the exception of one subsection, i.e.
section 4(2) (c) relating to the planning process, which is
dependent on the commencement of the relevant section of the
Planning and Development Act, 2000.
Preparations for ratification of the three Conventions commenced
in Spring 2002. Having secured the approval of Dail Eirean
(the lower House of Parliament) on 17 December 2002 to the
OECD Convention, the necessary administrative arrangements
are currently underway in the department of Foreign Affairs
for its ratification.
It may be noted that section 4(2) (c) of the Prevention of
Corruption (Amendment) Act 2001, which relates to the planning
process, was commenced with effect from 4th November 2002.
All sections of this Act are now fully operative. |
| Italy |
The law of ratification and implementation of
the Convention was enacted by the Italian Parliament, together
with three other European Union instruments against corruption
and bribery, on 29 September and was published in the Official
Journal on 25 October 2000. The law came into force on 26 October.
The instrument of ratification was deposited with the OECD Secretary-General
on 15 December 2000.
The law provides for non-criminal sanctions of legal persons
- whose application is however entrusted to the penal judge.
Sanctions include fines of up to Euro 1.5 million. In addition,
various penalties can be imposed in most serious cases such
as ineligibility, exclusion from public benefits, revocation
of authorisations. This new approach will also apply to domestic
corruption and some other offences by companies. The text
of the decree, through which the provision on the liability
of legal persons enters into force, was approved by the Council
of Ministers in May 2001. On 8 June 2001, the President of
the Republic and the government signed the decree. The legislative
decree of 8 June, nr. 231, was published in the official gazette
nr. 140 on 19 June. It came into force on 4 July 2001, 15
days after its publication.
A code of conduct for public employees as well as a statute
providing for the immediate dismissal of corrupt public officials
have been published in the official gazette in April 2001.
In autumn 2001, the Italian parliament adopted two laws
in areas covered by the Convention: one on mutual legal assistance
and another one empowering the Government to issue a legislative
decree on company law. The legislative decree, issued on 11
April 2002, contains among others, provisions on accounting
offences by legal persons and on criminalisation of private-sector
bribery.
A Parliamentary Committee of Inquiry has been created (Law
n°99 of 21 May 2002) in order to inquire about a case
of possible bribe payments abroad which supposedly occurred
in 1997, in relation to the acquisition of the 29% of Telekom
Serbia by Telecom Italia. The Committee, which was given important
investigative powers, is composed of 20 members of the Chamber
of Deputies and 20 members from the Senate. The Parliamentary
Committee of Inquiry is in contact with Magistrates of the
competent courts, investigating allegations made by a defendant
who is currently being held in Switzerland.
A further case falling under the scope of the Convention
was extensively reported by the Italian press in early June
2003. It concerns a major Italian company active in the energy
sector for an alleged case of bribery of Foreign Public Officials
through intermediaries in at least three countries of the
Middle East. Further information on these alleged cases will
be sought by the Working Group in the context of the imminent
examination of the Italian Implementing legislation (Phase
2 review).
Law n. 3, dated 16 January 2003, establishes a "High
Commissioner for the prevention and the fight against corruption
and other forms of illicit practices in Public Administration".
The High Commissioner is a body with the power of supervision
and control of the activities of Public Administration with
regards to corruption. It is entrusted with wide powers of
investigation and autonomously reports to the Government,
to the Judiciary and to the Court of Audits. |
| Japan |
On 10 April 1998, the Government of Japan formally
submitted the Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions, along with
its implementing legislation (amendments to the Unfair Competition
Prevention Law) to the National Diet, which approved the conclusion
of the Convention on 22 May 1998. The implementing legislation
was adopted on 18 September 1998. The instrument of acceptance
was deposited on 13 October 1998. The implementing legislation
– the Unfair Competition Prevention Law – entered
into force together with the Convention on 15 February 1999.
The Anti-Organised Crime Law, which contains provisions
making money laundering an offence in relation to bribery
of foreign public officials, was adopted in August 1999 and
entered into force in February 2000. A new policy excluding
companies involved in bribery transactions from official development
assistance contracts has been adopted in April 2000.
In view of conforming to the Working Group’s recommendations,
the Diet adopted a bill amending the Unfair Competition Prevention
Law on 22 June 2001. The amendment removes the “main
office” exception and broadens the definition of public
officials in relation to public enterprises. In 2003, the
government started examining the revision of the legislation
implementing the Convention. The main issue under revision
is the adoption of nationality jurisdiction and the introduction
of a regulation for seizure of proceeds. A draft bill will
be prepared in the second half of 2003 for submission to the
next parliamentary session of the Diet. |
| Korea |
The Korean Government formally submitted the
bill to ratify the Convention along with its implementing legislation
to the National Assembly in October 1998, which approved both
bills on 17 December 1998. Korea deposited its instrument of
ratification on 4 January 1999. Korea’s implementing legislation
– the Act on Preventing Bribery of Foreign Public Officials
in International Business Transactions - came into effect at
the time of the entry into force of the Convention, i.e. on
15 February 1999.
National Assembly adopted on 3 September 2001 two anti-money
laundering bills -- the Financial Transaction Reports Act
and the Proceeds of Crime Act, expected to come into force
on 28 November 2001. The Financial Transaction Reports Act
stipulates the establishment of a Financial Intelligence Unit
(FIU) whereby financial institutions will be required to provide
the FIU with information on suspicious financial transactions.
The Proceeds of Crime Act makes money laundering an offence
in relation to bribery of domestic and foreign public officials. |
| Luxembourg |
The Chambre des Députés (Parliament)
approved the bill to ratify and implement the Convention on
15 January 2001. The bill was published in the Mémorial
(Official Journal) on 7 February 2001 and entered into force
on 11 February. The instrument of ratification was deposited
with the OECD Secretary-General on 21 March 2001. |
| Mexico |
The Convention was approved by the Mexican Senate
as an international treaty on 22 April 1999; on 12 May, the
promulgation decree was published in the “Official Gazette
of the Federation” (D.O.F.). The implementing legislation
was approved by the two Chambers in Congress at the end of April,
as part of a comprehensive package of reforms to the Criminal
code in Mexico. The respective decree was promulgated in the
D.O.F. on 17 May 1999. The instrument of ratification was deposited
with the OECD Secretary-General on 27 May 1999.
To conform to the Working Group recommendations, the government
has drafted a bill to fully implement the Convention. The
bill is going to go to Congress during the next period of
session (September-December 2003).
Mexico adopted a number of provisions in related areas aimed
at increasing transparency and thereby limiting or discouraging
opportunities for corruption in 2002. The Access to Information
Act was approved by Congress and published in the Official
Gazette on 11 June. The public procurement and public works
laws are in the process of being amended to include, among
others, provisions allowing public consultations to review
bidding guidelines of relevant bidding processes and to promote
and recognise transparent companies.
On 13 March 2002, amendments to the Civil Servants Federal
Administrative Responsibility Act were approved. These reforms
prevent illicit conducts of domestic officials and provide
the Ministry of Public Administration with the necessary legal
tools to guarantee a more efficient application of the law.
This law regulates conflict of interests and reduces the authority's
discretion to impose sanctions. It establishes provisions
to verify and examine the evolution of domestic public officials'
patrimony, enabling the Ministry of Public Administration
to request the Mexican Banking and Securities Commission to
disclose banking information as well as to freeze the assets
of public officials under investigation (as well as of their
spouses & economic dependants) in order to guarantee the
payment of sanctions.
Mexico has started to develop actions to raise public awareness
about the Convention. Mexico has, among other actions, developed
documentation which is being distributed, to the Federal Government,
State’s Economic Development Ministries lawyers, corporations,
accountants, business, industrial, banking and financial chambers,
universities, opinion leaders and Development Banks (Banco
Nacional de Comercio Exterior and Nacional Financiera). Documentation
is also provided to foreign firms that participate in bids
in Mexico, through embassies of member countries in their
commercial and economic sections; and to Mexican firms that
supply to governments of OCDE member countries trough our
embassies abroad. Integrity programmes and best practices
are increasingly made known to the private sector.
Mexico deposited the instrument of ratification of the Inter-American
Convention on Corruption on 2nd. June 1997. Today, Mexico
is an active participant in the negotiations of the Convention
on Corruption of the United Nations. By the end of this year,
the Convention, will be signed in Mexico. |
| Netherlands |
The bills to ratify and implement the Convention
were enacted, together with three other European Union instruments
against corruption and bribery, on 13 December 2000 and came
into force on 1 February 2001. The instrument of ratification
was deposited with the OECD Secretary-General on 12 January
2001.
The “Directive on the investigation and prosecution
of corruption of officials”, adopted on 8 October 2002
and which entered into force on 15 November 2002 for a period
of four years (i.e. 15 November 2006) indicates the factors
that will have to be taken into account in determining whether
it is appropriate to prosecute domestic and transnational
corruption cases. The directive addresses, among others, the
use of facilitation payments/gifts for which no specific monetary
value is set. |
| New Zealand |
The Crimes (Bribery of Foreign Public Officials)
Amendment Act 2001 implementing the Convention was passed by
the Parliament and received the Royal Assent on 2 May 2001.
The Act was published in the Public Act 2001 n°28 and came
into force on 3 May 2001. The ratification followed the enactment
of legislation and the ratification instrument was deposited
with the OECD Secretary-General on 25 June 2001. |
| Norway |
After consultation with the relevant private
and public authorities, at the end of May 1998, the Government
submitted to Parliament the bills to ratify and implement the
Convention. The amendments to the Penal Code were passed on
27 October 1998 and came into force on 1 January 1999. The instrument
of ratification was deposited on 18 December 1998.
New draft legislation on bribery of foreign public officials
has passed Parliament in early June 2003. This new legislation
addresses the level of penalties, which has been raised for
natural persons to up to 10 years imprisonment. This new legislation
will have consequences on the investigation techniques as
well as on the statute of limitations applicable to the corruption
offence.
Norway is about to ratify the Council of Europe Criminal
Law Convention on Corruption. |
| Poland |
The ratification bill, which was approved by
the two chambers of Parliament in January 2000, has received
Presidential approval and has been published in the Official
Journal. The instrument of ratification was deposited with the
OECD Secretary General on 8 September 2000.
The implementing legislation was enacted on 9 September.
It was signed by the President and published in the Official
Journal on 3 November 2000. It entered into force on 4 February
2001.
The most important elements of the implementing act are
the criminalisation of active and passive bribery of foreign
public officials, the administrative responsibility of legal
persons, the provision allowing better mutual legal co-operation,
and the exclusion of companies having been found to bribe
from public orders. |
| Portugal |
After the Convention was approved and ratified
by the Parliament (February 2000) and by the President of the
Republic, the instrument of ratification was deposited with
the OECD Secretary General on 23 November 2000.
In June 2001, Portugal enacted implementing legislation
(Law no. 13/2001 of 4 June). The law entered into force on
9 June, 2001.
The implementing law aims at meeting the requirements of
the Convention; it is part of a more general concern to address
economic and financial crime. The law covers foreign public
officials, including of international organisations and foreign
and national holders of political positions not considered
officials. It provides for criminal sanctions for natural
persons, with imprisonment ranging from 1 to 8 years and for
criminal liability of legal persons. It also establishes bribery
as a predicate offence for money laundering purposes.
In November 2001, a new law n° 108/2001 was adopted,
introducing several amendments concerning the anti-corruption
provisions of the penal code. It introduces the offence of
active and passive private sector bribery, which may be sanctioned
by imprisonment of up to three years. The law also provides
for criminal liability of legal persons and establishes bribery
as a predicate offence for money laundering purposes. |
| Slovak Republic |
Slovak Parliament approved the ratification
of the Convention on February 11, 1999. The implementing legislation,
which included the amendment of the Penal Code, entered into
force on 1 September 1999. On 1 November 1999, the amendment
to the Code of Criminal Procedure came into effect. The instrument
of ratification was deposited with the OECD Secretary-General
on 24 September 1999.
In June 2001, the National Council of the Slovak Republic
adopted the law 253, amending the Penal Code in line with
the recommendations of the Working Group. The law came into
force on 1 August 2001. Accordingly, the offence of bribery
of foreign public official includes third parties, the level
of sanctions is increased to those imposed for bribery of
domestic public officials, the statute of limitations is extended
to up to 5 years. Amendments to the Penal Code of September
2002 (Act n° 421/2002) extend the offence to intermediaries
and third beneficiaries as well as to bribery in the private
sector.
The Criminal Procedure Code was changed by Act n° 422/2002.
The Act, which came into effect on 1 October 2002, introduces
in particular “abridged investigations”, new special
investigative means and contains more precise provisions on
extradition and mutual legal assistance.
The Law n° 466/2002 on Auditors and Chamber of Auditors
is effective since 1 January 2003. It is designed for implementing
international auditing standards and IFAC Codes of Ethics
in the Slovak Republic. It also introduces auditing of political
parties.
The Law n° 431/2002 on Accounting, designed to adapt
domestic accounting rules to international standards, came
into effect on 1 January 2003.
The full re-codification of the Penal Code and Code of Criminal
Procedure will include a provision on criminal liability of
legal person and a revised provision on effective regret regarding
corruption. |
| Slovenia |
Slovenia enacted the law authorising accession
to the Convention in December 2000; it was published in the
official gazette 1/2001 on 8 January 2001. Slovenia deposited
its accession instrument with the OECD Secretary-General on
6 September 2001.
To conform to the provisions of the Convention, the Slovenian
Parliament adopted a new anti-money laundering legislation
in late September 2001. The government also established the
“Prevention of Corruption Office”, which has prepared
a draft Anti-Corruption Law and a draft Anti-Corruption National
Strategy. Both texts have been approved by the Government.
Slovenia expects that both documents will be adopted by Parliament
by the end of 2003 or in the first quarter of 2004. Slovenia
expects to be in line with the requirements of the Convention
after the adoption of the above mentioned acts.
Slovenia ratified the Council of Europe Civil Law Convention
on Corruption in March 2003. |
| Spain |
The ratification law was submitted to Parliament
in the fall 1998. Spain deposited the instrument of ratification
with the OECD Secretary-General on 14 January 2000. On 12 January
2000, the implementing legislation was published in the State
Official Journal; it came into force on 2 February 2000.
To comply with the Working Group’s recommendations
to fully implement the Convention, the Ministry of Justice
initiated an amendment process to extend the definition of
a foreign public official in order to conform to the definition
in the Convention and provide for accessory sanctions for
legal persons. It is hoped that these amendments, which have
been submitted to Parliament, will be adopted by the end of
2003. |
| Sweden |
The bill embracing the necessary amendments
of Swedish legislation in order to be able to ratify and implement
the Convention was passed by Parliament on 25 March 1999. The
instrument of ratification was deposited with the OECD Secretary-General
on 8 June 1999. The implementing legislation entered into force
on 1 July 1999.
The Swedish Government held a seminar in early 2003 to alert
businesses to antibribery and other corporate social responsibility
issues. The meeting was organised with the International Chamber
of Commerce (ICC) and in association with Transparency International.
|
| Switzerland |
Draft ratification and implementing legislation
was approved by the upper Chamber of Parliament on 7 October
1999 and by the lower Chamber of Parliament on 9 December 1999.
The law entered into force on 1 May 2000, after the mandatory
three month period for possible referenda had expired and publication
requirements were fulfilled. The instrument of ratification
was deposited with the OECD Secretary-General on 31 May 2000.
The draft corporate liability bill was approved by the lower
Chamber of Parliament (7 June 2001) after having been approved
by the upper Chamber of Parliament (14 December 1999). The
remaining differences between the two Chambers were resolved
in September 2001. The bill provides that in corruption cases
penal sanctions can be imposed independently from the criminalisation
of natural persons and independently from the act or the negligence
of a body of the corporation. Since the corporate liability
bill is part of a general revision of the Penal Code under
way, it was decided in 2002 to advance the entry into force
of the bill by introducing an independent law on criminal
liability of legal persons. The independent law has been approved
by Parliament in early 2003. The Swiss Government will fix
the exact date of the law’s entry into force over the
summer 2003.
The government decided in February 2001 to sign the Council
of Europe Criminal Law Convention. Switzerland may consider
joining, at a later stage, the GRECO. |
| Turkey |
The Convention was ratified on 1 February 2000
by the Turkish Grand Nation Assembly and the ratification bill
entered into force on 6 February 2000. The instrument of ratification
was deposited with the OECD Secretary General on 26 July 2000.
The legislation to implement the Convention, adopted by
Parliament on 2 January 2003, is in force since its publication
in the Official Gazette on 11 January 2003. The main features
of the new legislation are the broadening of the definition
of the offence of bribery in the Turkish Penal Code so as
to include i) bribery of foreign officials, ii) the re-trial
of bribery cases, even if the legal action has been taken
in the country where the bribery offence was committed, and
iii) sanctioning of legal persons in addition to sanctions
applied to natural persons of legal entities in relation to
bribery cases. |
| United Kingdom |
The United Kingdom deposited its instrument
of ratification on 14 December 1998. Legislation to cover issues
raised by the Working Group was included in the Anti-Terrorism,
Crime and Security Act 2001, which came into force on 14 February
2002. These were: the application of the law to the bribery
of foreign officials and introducing jurisdiction over acts
by UK nationals and companies abroad; and the lifting of restrictions
on the sharing of information by the tax and customs authorities
in support of criminal investigations or proceedings. Amendments
to the Income and Corporation Taxes Act 1988, which came into
force in July 2002, provide that payments made outside the UK
which would have constituted a criminal offence if made within
the UK will not be deductible for tax purposes.
The Government had announced at the beginning of the 2002/3
Parliamentary session that it would publish a new draft corruption
law which would consolidate and clarify all existing law in
this area. A draft bill was published for comments at the
end of March 2003.
As regards Scotland, provisions on corruption similar to
those contained, for the rest of the UK, in the 2001 Act were
brought into force on 27 June 2003 under the Criminal Justice
(Scotland) Act 2003.
The Convention was extended to the Isle of Man in June 2001.
Negotiations are still under way to bring the Channel Islands
(Jersey and Guernsey) within the scope of the Convention.
Each of them is currently preparing new legislation to comply
with the Convention, with bills expected to come before their
respective Parliaments around the end of 2002.
The process to bring the UK’s Overseas Territories
under the scope of the Convention has begun. This involves
a bilateral consultative process with each territory. Of these,
Gibraltar is in the process of drafting new legislation, and
the Cayman Islands legislature is considering amendments to
its Penal Code. The UK will inform the Group of further progress
towards the extension of the applicability of the Convention
to Overseas Territories.
The results of an independent study by consultants into
financial regulation in 6 Overseas Territories (Anguilla,
Bermuda, the British Virgin Islands, Montserrat, and the Turks
and Caicos Islands) were published in October 2000 and are
available from http:/www.official-documents.co.uk/document/cm48/4855/4855.htm..
Implementation of the recommendations is proceeding and will
ensure that all the Overseas territories fully meet international
standards of financial regulation. |
| United States |
The United States’ implementing legislation,
which amended the Foreign Corrupt Practices Act (FCPA), took
effect on 10 November 1998. The ratification instrument was
deposited with the OECD Secretary-General on 8 December 1998.
The legislation is available on the Internet at www.usdoj.gov/criminal/fraud/fcpa.html.
The United States has also ratified the Inter-American Convention
against Corruption and signed the Council of Europe Criminal
Law Convention on Corruption as well as the GRECO.
Since the enactment of its legislation, the United States
has taken the following steps to implement the Convention:
-
The Civil Asset Forfeiture Reform Act (CAFRA) made it
possible to seek civil and criminal forfeiture of the
proceeds of foreign bribery.
-
The President signed an executive order in March 2002
designating the European Union’s organisations and
Europol as public international organisations, making
bribery of officials from these organisations a violation
of the FCPA.
-
The U.S. Sentencing Commission promulgated amendments,
effective November 2002, making violations of the FCPA
and violations of the domestic bribery law subject to
the same sentencing guidelines.
In April 2003, a grand jury in New York returned an indictment
charging James Giffen, a U.S. citizen, who acts as a counsellor
to the Government of Kazakhstan on oil transactions, with
inter alia, violations of the FCPA, money laundering and fraud
associated with the diversion of fees paid by oil companies
and the deposit of funds into Swiss bank accounts held for
the benefit of Kazak officials. Trial in this matter is currently
scheduled for January 2004.
A pending issue of interest to the Working Group is the
scope of “obtaining or retaining business” as
used in the FCPA. This issue has arisen in several recent
cases and the U.S. Court of Appeals for the Fifth Circuit
heard arguments in March 2003. A decision is expected soon.
If the Court adopts a restrictive interpretation of the statute’s
language, thus making it inconsistent with the Convention,
the United States will consider remedial legislation. |
Annex A - Country Evaluation Web Sites
Annex B
OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions
RATIFICATION STATUS AS AT 10 OCTOBER 2002
| Country |
Deposit of instrument of ratification/
acceptance |
Entry into force of the Convention |
Entry into force of implementing legislation |
| Argentina |
8 February 2001 |
9 April 2001 |
10 November 1999 |
| Australia |
18 October 1999 |
17 December 1999 |
17 December 1999 |
| Austria |
20 May 1999 |
19 July 1999 |
1 October 1998 |
| Belgium |
27 July 1999 |
25 September 1999 |
3 April 1999 |
| Brazil |
24 August 2000 |
23 October 2000 |
11 June 2002 |
| Bulgaria |
22 December 1998 |
20 February 1999 |
29 January 1999 |
| Canada |
17 December 1998 |
15 February 1999 |
14 February 1999 |
| Chile |
18 April 2001 |
17 June 2001 |
October 2002 |
| Czech Republic |
21 January 2000 |
21 March 2000 |
9 June 1999 |
| Denmark |
5 September 2000 |
4 November 2000 |
1 May 2000 |
| Finland |
10 December 1998 |
15 February 1999 |
1 January 1999 |
| France |
31 July 2000 |
29 September 2000 |
29 September 2000 |
| Germany |
10 November 1998 |
15 February 1999 |
15 February 1999 |
| Greece |
5 February 1999 |
6 April 1999 |
1 December 1998 |
| Hungary |
4 December 1998 |
15 February 1999 |
1 March 1999 |
| Iceland |
17 August 1998 |
15 February 1999 |
30 December 1998 |
| Ireland |
-- |
-- |
26 November 2001 |
| Italy |
15 December 2000 |
13 February 2001 |
26 October 2000 |
| Japan |
13 October 1998 |
15 February 1999 |
15 February 1999 |
| Korea |
4 January 1999 |
5 March 1999 |
15 February 1999 |
| Luxembourg |
21 March 2001 |
20 May 2001 |
11 February 2001 |
| Mexico |
27 May 1999 |
26 July 1999 |
18 May 1999 |
| Netherlands |
12 January 2001 |
13 March 2001 |
1 February 2001 |
| New Zealand |
25 June 2001 |
24 August 2001 |
3 May 2001 |
| Norway |
18 December 1998 |
16 February 1999 |
1 January 1999 |
| Poland |
8 September 2000 |
7 November 2000 |
4 February 2001 |
| Portugal |
23 November 2000 |
22 January 2001 |
9 June 2001 |
| Slovak Republic |
24 September 1999 |
23 November 1999 |
1 November 1999 |
Slovenia
(accession instrument) |
6 September 2001 |
5 November 2001 |
October 1999** |
| Spain |
4 January 2000 |
4 March 2000 |
2 February 2000 |
| Sweden |
8 June 1999 |
7 August 1999 |
1 July 1999 |
| Switzerland |
31 May 2000 |
30 July 2000 |
1 May 2000 |
| Turkey (*) |
26 July 2000 |
24 September 2000 |
-- |
| United Kingdom |
14 December 1998 |
15 February 1999 |
14 February 2002 |
| United States |
8 December 1998 |
15 February 1999 |
10 November 1998 |
* These countries have not yet adopted implementing legislation.
** Slovenia has established the offence of active bribery of foreign
public officials in the law of 23 march 1999. It is
expected that a draft anti-corruption law (modifying the Penal Code
and the Prevention of Corruption Law) will be
approved by the end of 2002 in order for Slovenia to fully comply
with the Convention.
1. Countries also provided information on steps taken to implement
the Working Group’s recommendations concerning issues identified
in the course of Phase 1 evaluations.
2. Slovenia has not yet enacted full implementing legislation.
|
