Anti-Corruption Committee projects

Structured Settlements for Corruption Offences Towards Global Standards?

(December 2018)

The growing phenomenon of non-trial resolution of foreign bribery offences motivated the IBA Anti-Corruption Committee to set up the Structured Criminal Settlements Sub-Committee (SCSS) in 2016. This IBA Report, ‘Structured Settlements for Corruption Offences: Towards Global Standards?’ is the result of a two-year project to map regulations and best practices regarding settlements in foreign bribery cases across the globe. With contributions from 66 countries, the IBA Report provides an up-to-date and comparative overview of salient issues relating to structured settlements for corruption offences from diverse national viewpoints.

Each country reporter has provided an overview of their domestic foreign bribery enforcement architecture; of the criminal law principles that create the discretionary space (or not) for co-operation between alleged offenders and prosecutors; of the manner in which prosecutorial discretion is exercised; of the final outcomes of co-operation between alleged offenders and prosecutors where this is allowed within their framework and, also, of the operation of the double jeopardy rule with regards to foreign settlements. The country reporters, where applicable, have given insight into the level of transparency associated with the settlements process in the form of judicial oversight and information available to the general public. Finally, reporters from countries with a form of settlements process have given their perceptions about the level of predictability that accompanies this process in their jurisdictions.

This report shows that non-trial resolutions in foreign bribery cases are indeed a rapidly growing trend and that there is a diversity of approaches across jurisdictions. Does this call for formal modus of co-ordination of domestic practices in the form of global standards? The officers of the SCSS, Alison Levitt QC., Elizabeth Danon, Wendell Wong, David Gurfinkel, Adriana Dantas, Lindsay Sykes, Ceres Aral Desnos, Emmanuel Akomaye, Andrew Levine and Stéphane Bonifassi have given their viewpoints on whether there is indeed an argument for global standards in SCSS conference panels and in this report.

The IBA report, edited by Abiola Makinwa and Tina Soreide provides a unique global viewpoint on non-trial resolutions of foreign bribery offences that can add to the growing debate about the desirability, effectiveness and legitimacy of this addition to the prosecutor’s toolbox. It is hoped that this IBA effort will encourage more empirical and legal studies of settlements in foreign bribery cases.

Submission to the Australian Senate on Foreign Bribery Laws

(August 2015)

Anti-Committee response to draft Specification for an Anti-Bribery Management System

(August 2011)

On 31 August 2011 the Anti-Corruption Committee submitted a response to a consultation by the British Standards Institute (BSI) on the draft of its proposed Specification for an Anti-Bribery Management System (ABMS).

The BSI works with business to develop standards for all areas of commerce and has standards for everything from the dimensions of rivets to environmental management systems.

The Anti-Corruption Committee welcomed the BSI’s efforts to ensure that the standard would be applicable to organisations of different sizes and its incorporation of the concept that anti-bribery measures need to be proportionate to the risk in all the circumstances. Various changes to the draft standard were suggested, however.

Perhaps the committee’s greatest concern was that certain provisions had been drafted too widely, imposing obligations on too broad a range of situations or relationships to be practicable. By way of example the draft standard proposed that organisations conduct due diligence on all business partners, irrespective of the risk in the relationship. This would create an onerous burden that in many cases would do little to combat corruption, particularly as the definition of business partners was itself very broad, encompassing clients and suppliers. The committee was concerned that such provisions would dissuade organisations from adopting the standard and thereby undermine its effectiveness.

Anti-Corruption Strategy for the Legal Profession

(October 2015)

The Anti-Corruption Strategy for the Legal Profession is an initiative of the IBA in cooperation with the OECD and UNODC. This initiative will be the first global anti-corruption project designed to (i) research the role of lawyers in international corruption , (ii) raise awareness of the devastating effects of corruption and (iii) promote best practices in this area amongst legal professionals.  

For further information please click here.

Report of the Task Force on Extraterritorial Jurisdiction

The report authored by the IBA Legal Practice Division Task Force on Extraterritorial Jurisdiction (2009) is now available for purchase in the IBA shop, in book format, at £25. The Task Force was formed to focus on two important questions:

  • When should a state be able to regulate persons or conduct occurring outside its territory?
  • How should overlaps or conflicts of jurisdiction between two or more states be resolved?

The report responds to these questions by laying out the principles governing extraterritoriality, and by providing recommendations for governments, courts, international organisations and businesses on methods for minimising costs and conflicts associated with extraterritorial exercises of jurisdiction. The report focuses in particular on competition and antitrust law, tort law, criminal law, securities law, insolvency law, bribery and corruption.

The pdf version of the report is available for download, free of charge.

Comments of the International Bar Association on the Consultation Paper of the Working Group on Bribery of the OECD

(April 2008)

Anti-corruption Treaties and Conventions

Inter-American Convention against Corruption, Organization of American States, 1996

http://www.oas.org/juridico/english/Treaties/b-58.html

The Organization of American States (OAS) anti-corruption convention has two main purposes: (1) to promote the development of anti-corruption regulatory and enforcement mechanisms in each state party and (2) to require cooperation between these states for addressing corruption. Although the Convention permits state parties to individually develop and implement domestic anti-corruption policies, it also contains certain uniform standards and definitions.

 

Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Organization for Economic Co-operation and Development, 1997

http://www.oecd.org/document/21/0,3343,en_2649_34859_2017813_1_1_1_1,00.html

The Organization for Economic Co-operation and Development (OECD) Convention compels state parties to criminalize and penalize the bribery of foreign public officials, as well as lesser included offenses. The Convention also imposes national accounting and auditing requirements, the obligation of mutual legal assistance, and mechanisms to facilitate extradition. The 1997 Revised Recommendation on Combating Bribery in International Business Transactions added to the Convention by focusing on additional areas, including public procurement, the non tax deductibility of bribes, and measures to deter and combat bribery.

 

Convention on the Fight against Corruption involving officials of the European Communities or officials of Member States, European Union, 1997

http://europa.eu/scadplus/leg/en/lvb/l33027.htm

The European Union (EU) Convention requires each member state to take measures necessary to ensure that conduct constituting an act of passive or active corruption by officials is a punishable criminal offense. Moreover, this Convention provides that member states must ensure that conduct constituting an act of passive or active corruption, as well as participation in and instigation of these acts, is punishable by criminal penalties.

 

Criminal Law Convention on Corruption, Council of Europe, 1999

http://conventions.coe.int/Treaty/EN/Treaties/Html/173.htm

The Criminal Law Convention requires member states to take a series of measures at the national level, including prohibiting bribery in the public and private sectors. This Convention also creates rights and requirements for international cooperation, including obligations of direct communication between members, mutual assistance, and extradition.

 

Civil Law Convention on Corruption, Council of Europe, 1999

http://conventions.coe.int/treaty/en/Treaties/Html/174.htm

The Civil Law Convention seeks to define international civil law as it relates to corruption. In particular, this Convention obliges states to provide legal remedies – including compensation for damages – for those persons who have suffered damage resulting from acts of corruption.

 

Oversight Committee on Fraud and Corruption, Inter-American Development Bank

http://www.iadb.org/integrity/ocfc.cfm

The Inter-American Development Bank established this Committee to detect, sanction, and deter corruption related to the Bank’s activities. The Committee’s Operating Guidelines describe the Committee’s investigative powers, employees’ reporting requirements, and the procedures for commencing sanctions proceedings and referring matters to national and international authorities.

 

Anti-Corruption Action Plan for Asia and the Pacific, 2001

http://www.oecd.org/document/35/0,3343,en_34982156_35315367_35029667_1_1_1_1,00.html

The Plan does not contain legally binding requirements, but instead outlines three general “Pillars of Action:” (1) the development of effective and transparent systems for public service, (2) the strengthening of anti-bribery actions and promotion of integrity in business operations, and (3) the support of active public involvement. What’s more, the “Implementation Plan” component emphasizes assessment, review, and assistance conducted by a governing body run by participating states.

 

Protocol against Corruption, Southern African Development Community (SADC), 2001

http://www.sadc.int/index/browse/page/122

The SADC Protocol requires state parties to enact preventative measures against corruption, follow a framework for extradition, and generally cooperate with each other on anti-corruption work. The Protocol also seeks to harmonize national anti-corruption legislation in the region.

 

Protocol on the Fight against Corruption, Economic Community of West African States (ECOWAS), 2001

http://www.ecowas.info/

The ECOWAS Protocol requires state parties to criminalize a number of corrupt acts, including active and passive bribery in the public and private sectors, illicit enrichment, false accounting, aiding and abetting corrupt practices, and the laundering of the proceeds of corruption. This Protocol also contains provisions on victim protection and judicial and law enforcement cooperation. It has not yet entered into force.

 

United Nations Convention against Transnational Organized Crime and the Protocols Thereto, 2000-01

http://www.unodc.org/unodc/en/treaties/CTOC/index.html

This Convention requires each state party to develop laws criminalizing money laundering, organized crime, and the corruption of public officials, and to take measures to enforce those laws. This Convention also compels state parties to cooperate with each other and encourages joint investigations. The U.N. has also adopted supplementary protocols addressing human trafficking, migrant smuggling, and the trafficking of illegal firearms.

 

United Nations Convention against Corruption, 2003

http://www.unodc.org/unodc/en/treaties/CAC/index.html

The U.N. Convention against Corruption (UNCAC) contains an extensive set of requirements to be implemented nationally, including that state parties criminalize a wide range of corrupt acts and enforce corruption laws. The UNCAC also creates preventative measures for accounting and procurement, and mandates private sector cooperation with law enforcement. Even more, the UNCAC includes duties to cooperate internationally, to consider providing technical assistance to other parties, and to help recover fraudulently-transferred assets.

 

African Union Convention on Preventing and Combating Corruption, 2003

http://www.africa-union.org/Official_documents/...

The African Union (AU) Convention requires member states to use legislative and other measures to criminalize and combat an extensive list of specific acts of corruption. Moreover, this Convention contains detailed requirements for facilitating transparency in member states’ governments, cooperation and mutual assistance obligations, and a legal framework for prosecuting corrupt acts. An Advisory Board on Corruption monitors and facilitates member states’ compliance with this Convention.