The Italian judiciary is threatening to upset the global norm against bribing officials of another nation.  As party to both the OECD Antibribery Convention and the UN Convention Against Corruption, Italy is obliged to sanction Italian companies and nationals that bribe the public servants of other nations.  Yet despite overwhelming evidence that oil and gas giant Eni S.p.A, the country’s largest company, bribed Nigerian officials to secure a lucrative oil block, a Milan trial court recently acquitted Eni and codefendant Royal Dutch (decision here.)

Acknowledging the prosecution had presented strong circumstantial evidence of bribery — what it termed “conduct implementing the agreement” to pay Nigerian officials in return for “the unlawful act of the public official” — the court nonetheless held this was not enough. Following earlier appeals court decisions in foreign bribery cases, it ruled the prosecution must also show an actual “agreement between clearly identified parties” Hence, it concluded, “even the proof of the bribe or the unlawfulness of the act committed by the official” is not enough to warrant conviction.

Officials from the U.S. Department of Justice and Germany’s Ministry of Justice will shortly review Italy’s compliance with its obligations under the OECD Antibribery Convention. The Italian NGO ReCommon, Nigeria’s Human and Environmental Agenda, and Corner House from the United Kingdom have prepared this thorough and damning critique of the decision in the ENI case and earlier ones where Italian courts have held that absent an express agreement to pay a bribe to a foreign official, defendants must be acquitted.

As the three NGOs explain in their analysis, those negotiating the OECD Convention recognized that requiring the prosecution to show an express agreement to bribe set an impossibly high hurdle. They settled instead on allowing courts to infer an agreement from the surrounding circumstances, circumstances such as those the prosecution presented in the ENI-Shell case. Indeed, American courts long ago recognized that requiring the prosecution to produce an express, written agreement to pay a bribe rendered the antibribery law a nullity.

Prosecutors need not produce the text of an agreement to win a conviction. As Supreme Court Justice Anthony famously observed, were that the case “the law’s effect could be frustrated by knowing winks and nods.”  It is enough if an agreement can be inferred from the circumstances: the closeness in time between a payment and an official act, irregularities in the procedures followed in taking the act, and similar facts suggesting the official accepted money or something of value in return for doing or not doing something. 

Where the alleged bribe takes the form of a campaign contribution to the official, the courts do demand more evidence than in other cases, as for example those like the ENI case where money was paid in return for a concession contract.  The reason is that campaign contributions are not only permitted by American law but are a constitutionally protected form of a free speech. Hence, a generalized expectation that an official will be “supportive” or “look with favor” on the contributor’s wishes will not suffice to sustain a charge of bribery. Rather, as the Supreme Court ruled in upholding a conviction for extortion, the prosecution must prove beyond a reasonable doubt the contribution was made “in return for an explicit promise . . . to perform or not to perform an official act.”

In United States v. Siegelman, defendants appealed from a jury verdict finding that a campaign contribution was in fact a bribe. The grounds were that the prosecution had failed to produce an express agreement, oral or written, showing the contribution was made in return for an official act. The appeal failed, the 11th Circuit Court of Appeals holding that the requirement of an explicit agreement in campaign contribution cases does not mean the agreement must be expressly stated. It was enough if from defendants’ conduct, the jury could infer an explicit agreement: “Explicit…  does not mean express.” 

The Siegelman court nicely distinguishes between the need to show an agreement and the need to produce the written text of an agreement. So long as Italian courts do not make the distinction, Italian companies will be free to bribe whom they please.