Today’s guest post is from France Chain, Elisabeth Danon, and Sandrine Hannedouche-Leric, legal analysts at the OECD’s Anti-Corruption Division. The views expressed in this post do not necessarily represent those of the OECD member countries or States Parties to the OECD Anti-Bribery Convention.
The OECD Anti-Bribery Convention, which came into force in 1999 and currently has 44 member states, is intended to combat bribery of foreign public officials in international business transactions. Last month, the OECD Council adopted the 2021 Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions, which includes—among other measures to further enhance the fight against transnational bribery—a section on non-trial resolutions (NTRs). This section, which is based in part on the findings of a 2019 report on NTRs from the OECD’s Working Group on Bribery in International Business Transactions, represents the first time that a multilateral instrument included standards on the use of NTRs to resolve foreign bribery cases.
The Recommendation first calls for Convention member states that have not yet adopted an NTR instrument to consider doing so. (This call follows the Working Group’s finding, in its 2019 report, that in the 27 OECD Convention member states that have developed at least one form of NTR instrument, nearly 80% of foreign bribery cases that have been successfully resolved since the Convention entered into force were resolved via NTR.) The Recommendation also stresses, however, that member states should take measures to ensure that the use of NTRs follows the Convention’s principles of “due process, transparency, and accountability” The Recommendation fleshes this out by advancing eight principles. According to the Recommendation, Convention member states that make use of NTRs should:
- adopt a clear and transparent framework regarding NTRs, one that specifies the authorities entitled to enter into such resolutions; makes clear whether NTRs are available for natural persons, legal persons, or both; and also clarifies whether or under what conditions the offender must to admit certain facts and/or acknowledge guilt.
- develop clear and transparent criteria regarding how the possibility of an NTRs is affected by the alleged offender’s voluntary self-disclosure, cooperation with law enforcement authorities, and remediation measures.
- provide clear and publicly accessible information on the advantages that an alleged offender may obtain by entering into an NTR.
- make public (to the extent appropriate and consistent with privacy rules) information about concluded NTRs, including the main facts and persons involved, the considerations that led the authorities to conclude the case via NTR, the nature and rationale for the sanctions imposed, and the remediation measures imposed (including adopting or improvement of internal compliance programs the imposition of a monitorship).
- ensure that foreign bribery resolved by NTRs is punishable by transparent, effective, proportionate, and dissuasive sanctions as required by Article 3 of the OECD Convention.
- ensure that resolving foreign bribery cases by NTR does not impede the effective investigation and prosecution of alleged offenders in other countries, and generally allows for effective international cooperation.
- ensure that the conclusion of an NTR is without prejudice to enforcement actions against other alleged wrongdoers.
- ensure that NTRs are subject to appropriate oversight, such as by a judicial, independent public, or other competent authority (including law enforcement authorities).
As the 2019 Working Group report shows, several countries already abide by these principles, and these examples can serve as models for good practices.
An additional observation: The last decade has seen a steady increase in the use of coordinated multijurisdictional NTRs, which have facilitated cross-country coordination in both the simultaneous and sequenced resolution of foreign bribery cases. The 2021 Recommendation introduces a new section on multijurisdictional cases which, among other provisions, calls on member countries to “encourage direct coordination in concurrent or parallel investigations and prosecutions.” Combined with the new provision recommending member countries to consider using NTRs this new section could significantly contribute to facilitating the coordinated resolution of multijurisdictional cases.
By introducing standards on the use of NTRs to resolve foreign bribery cases, the 2021 Recommendation also provides new grounds for the Working Group to monitor how these instruments are designed and used in practice. This groundbreaking development should contribute to ensuring the fairness, transparency, and accountability of NTRs in foreign bribery cases, which could in turn encourage a larger number of countries to consider whether the adoption of such mechanisms could enhance their enforcement efforts.