Will the OECD Whitewash Italy’s Flagrant Violations of the OECD Antibribery Convention?

Italy’s compliance with the OECD Antibribery Convention will reportedly be reviewed this week by the OECD’s Working Group on Bribery in International Business Transactions.  The Convention’s review mechanism has been called “the gold standard” for evaluating compliance with an international agreement (here). Whether it deserves that billing will depend on what the Working Group says about Italy’s compliance.

As with all compliance reviews, the Working Group has before it a report prepared by experts from two other Convention parties documenting whether Italy has lived up to its promise to investigate foreign bribery by its nationals. From the public record alone, on which the experts were well informed (here, here, here, here, and here), it is impossible to believe their report is anything but strongly critical.

In three recent cases, Italian courts have acquitted defendants accused of bribing officials of the Algerian, Indian, and Nigerian governments in the face of overwhelming evidence of guilt. As readers of this blog know (here), the only possible explanation for the Nigerian acquittal is that the judges were either threatened or bribed.

Indeed, the Nigerian case represents an even more egregious flouting of Italy’s Convention obligations. The prosecutor assigned to handle the appeal had earlier said the decision to bring the case was a “waste of resources” and those who brought it “must be investigated in depth.” Not surprisingly, and completely at odds with standard practice in Italy, she withdrew the appeal, thus terminating the case before the appeals court heard a single word in evidence.

There is speculation that Italy has launched a full court press to persuade the Working Group to water down the experts’ report and whitewash in toto its flagrant failure to meet its obligation under the Convention to levy “effective, proportionate, and dissuasive criminal penalties” on Italian nationals and companies that bribe officials of a foreign government.  Will the Working Group ignore the experts? Will it condone the dismissals in the Algerian, Indian, and Nigerian cases? Will the gold standard of peer reviews turn out to be nothing but cheap gold plating? What, its members must ask themselves, will the failure to hold Italy to account mean for future compliance reviews?

And where by the way is Italy’s new “populist” government in all this? The big winner from dismissal of the Nigerian case was oil giant ENI, Italy’s large company; the only winners from an OECD whitewash will be Italian multinationals.  It’s passing strange, to say the least, that in one of the new government’s first actions on the international stage the new government is to come to the defense of Italy’s tired, worn-out establishment.   

If the Working Group fails to rebuke Italy, it should at the least release the experts’ report so that Italian citizens, anticorruption campaigners, and governments of other Convention parties can see just how far short it fell in its duty to pass on Italy’s compliance with the Convention.

3 thoughts on “Will the OECD Whitewash Italy’s Flagrant Violations of the OECD Antibribery Convention?

  1. A very interesting post, thank you Richard.

    The speculation of Italy’s attempt to persuade the Working Group to water down the expert reports is intriguing although, it seems that Italy would need the buy-in of all the representatives of the Working Group, comprising of the Convention’s signatories (38 states) in order get them to water down the reports – which is doubtful.

    But if Italy does succeed in influencing the Working Group to do so and the Working Group ignores the experts or condones Italy’s dismissals of the Algerian, Indian, and Nigerian cases – it raises further questions concerning: (i) what checks and balances are in place regarding the decisions and work of the Working Group; and (ii) what happens / ought to happen to the Working Group as presently constituted if its decisions deviate from their terms of reference?

    I look forward to seeing how this all unfolds.

    • I think you are underestimating how risk adverse delegates to the Antibribery Working Group meeting are. Working Group members value consensus, and the threat that Italy will be upset and object and protest will be enough to discourage many from siding against it. Moreover, as the report TI released yesterday on the failure of so many Convention parties (all but two according to TI) to enforce the Convention, many delegates will be in the position of glasshouse dwellers contemplating throwing a stone.

      The Working Group’s success in persuading/cajoling/pressuring governments to take the Convention seriously rests first upon the professionalism and dedication of career staff in justice and foreign affairs ministry and second on the political interests of the governments in power. Critiques from the public like the one on this post can help stiffen the spine of the professionals and hopefully nudge political leaders into thinking a bit more about the implications of not backing up the professionals.

      In his Setting the People Free, John Dunn writes that as far back as Aristotle, close observers of politics realized there was no way to structure a political institution to avoid the need for leaders to act with what the classical writers called virtu and we would call rectitude or considerations of the public interest. That’s even more true of an institution made up of 38 sovereign nations.

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