At the request of the OECD Secretary-General, a High Level Advisory Group produced a report in October 2017 on how the OECD could strengthen its work combating corruption and promoting integrity. One recommendation was that the organization “create and publish model guidelines” for member states to follow when settling cases arising from the bribery of a foreign public official. Noting concerns (discussed in many posts on this blog and elsewhere) that pretrial settlements can let defendants off too easy, the advisory group cautioned that the guidelines should be “consistent with the requirement for effective, proportionate and dissuasive sanctions under the OECD Anti-Bribery Convention.”
Earlier this year, Professor Tina Søreide of the Norwegian School of Economics and former Siemens General Counsel Peter Solmssen organized a multinational group of defense lawyers, prosecutors, academics, and civil society activists to suggest guidelines. “Principles for the Implementation and Use of Non-Trial Resolutions of Foreign Bribery Cases” together with a set of explanatory notes were released last week. The principles, the explanatory notes, and a letter transmitting the documents to the OECD are here.
Professor Søreide, Mr. Solmssen, and the others involved in developing the principles welcome reader comments.
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My name is Elizabeth Nugent and I am an American law student. I found your post on the Anti-Corruption Blog, and hope that my comments can be of some help to the OECD and the Secretary General’s High-Level Advisory Group. I would first like to say that I think there are excellent ideas and guidelines in the Recommendation and accompanying Explanatory Notes, and that this work regarding Non-Trial Resolutions of Foreign Bribery Cases is very important. I wish the involved parties the best of luck with this endeavor.
One of the main principles of the guidelines is to provide leniency for cooperation and self-reporting. I fully support this principle, and agree with the statement in para. 1.2 that “resources can be more effectively deployed if Organizations that discover or suspect foreign bribery disclose underlying facts or their suspicions to law enforcement officials voluntarily.” I think that this increases the efficiency of investigations, and also places the impetus on the organizations or individuals to monitor their own actions and report accordingly. However, this leniency opens the door to a possibility of arbitrary punishment. Para. 1.3 says, “[m]ember countries should engage in sustained public discussion and evaluation of Non-trial Resolutions,” and para. 2 says, “[m]ember countries should publicize standards for Non-trial Resolutions and their methods of determining constituent sanctions.” These statements do provide guidance on what should be done to combat arbitrary implementation and punishments, but I think that a more rigid suggestion could be made to the Members. A suggestion to report certain details or cases on a set schedule, and through a specified forum would be more ideal than a vague suggestion to simply report or publicize standards. This information needs to be shared with the public, as well as with other Members. In addition to publicizing standards, I saw no mention of Non-Disclosure Agreements (NDA). I don’t think it would hurt to explicitly recommend against the usage of any non-disclosure agreement in these settlements.
My next suggestion concerns coordination between countries. Para. 4 says, “the investigation, negotiation, penalties and remediation constituting Non-trial Resolutions should be coordinated among countries with jurisdiction over claims against suspected offenders.” I agree that countries should cooperate and share information with other countries who also have jurisdiction over the case, but I think a few standards or guidelines explaining how this might work would be beneficial. For instance, if both the United States and France have jurisdiction over a case, which country’s rules of procedure or guidelines for questioning would be used? What if these rules conflict with each other and cause procedural issues in the future? Additionally, what if the countries disagree about whether or not to bring charges, and this hinders the other country’s investigation? There must be complete cooperation between the countries, and I think a few guidelines about the procedure for this circumstance would be helpful.
My last few points are specific to certain paragraphs, and I will list them below:
Para 2.4: I think it would be beneficial to recommend a policy to protect the self-reporter or individual who cooperates in the investigation. I imagine this to be similar to whistle-blower protections. Para. 3.4.5 does promote a corporate compliance system to protect whistleblowers, but I think that this recommendation should be mentioned separately, and as its own recommendation to the Members earlier in the document.
Para. 3.4: An additional consideration could be the existence of a corporate compliance system educating every level of the organization about anti-bribery/compliance procedures, and further, what the reporting procedure for that company are.
Para 4.1: I think it would be beneficial for this document to actually provide a baseline definition of “what it means for an Organization to disclose voluntarily or to cooperate meaningfully in a law enforcement process.” This way, the Members can all agree on at least a bare minimum definition, so as to prevent confusion or conflict in the future.
Again, I hope my comments can be helpful, and good luck.