On 14 November 2017, the Organisation for Economic Co-operation and Development (OECD) published its 2016 data on the enforcement of the Anti-Bribery Convention. Those involved with or responsible for their business’ anti-bribery programme may find this information useful in both updating 2018 anti-bribery training and re-engaging the focus in this area at executive and board level.
The OECD foreign bribery report, initially published in 2010, is updated annually. The 2016 report focuses on international co-operation in anti-bribery law enforcement.
Key findings of the 2016 report
- There were over 500 ongoing investigations into foreign bribery in 29 member states of the Working Group on Bribery (WGB).
- At least 125 individuals had sanctions imposed for foreign bribery and were sentenced to prison across 11 member states of the WGB. (For more information on sentencing, see Practice note, Corporate sentencing for bribery offences).
- Where individuals were given suspended sentences, the average length was between 1-5 years.
- At least 144 criminal proceedings were ongoing in 12 member states of the WGB.
- 20 member states of the WGB have imposed a sanction on foreign bribery at least once. In 2016, Austria and Israel imposed sanctions for the first time (on an individual and a legal person respectively).
- 21 member states of the WGB have never yet imposed any sanction for foreign bribery.
Strengthening anti-bribery enforcement regimes
Over the course of 2016, co-operation between countries improved and increased. This is especially so when member states co-operated with the US Department of Justice and the US Securities and Exchange Commission. (For more information, see Practice note, Anti-corruption regimes in the UK and US: a comparison of the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977.)
In addition, France, the Netherlands and the Slovak Republic all adopted key reforms to enhance anti-bribery enforcement.
- France: The Loi Sapin II, adopted in December 2016, seeks to promote transparency, anti-corruption and the modernisation of the economy. Specific measures include:
- Creation of a national anti-corruption agency.
- The introduction of new negotiated settlements similar to deferred prosecution agreements.
- New or redefined offences and penalties.
- A requirement that companies with more than 500 employees establish and implement anti-corruption compliance measures.
- The Netherlands: The Dutch Whistleblower Authority Act (Wet Huis voor Klokkenluiders) entered into force on 1 July 2016. The purpose of this is to improve ways to report a concern about wrongdoing within organisations and to offer better protection to those who do so. The Act also provides for the establishment of a Whistleblower Authority that can provide advice to those who have concerns about possible wrongdoing. The Whistleblower Authority can also carry out investigations as a result of a report of wrongdoing.
- Slovak Republic: A new law on the Criminal Liability of Legal Persons entered into force on 1 July 2016. The law aims to respond to WGB recommendations that the Slovak Republic establish the liability of legal persons for bribery of a foreign public official. Also entering into force were amendments to the foreign bribery offence, amending the definition of foreign public official.
What does this mean?
At the highest level, these findings highlight the fact that the focus on anti-bribery continues around the world, with developing legislation, greater cooperation and more onerous penalties for beach for companies and individuals.
The report provides a useful context for counsel to re-engage focus on the topic and refresh processes and procedures in areas where there have been significant changes in the legal framework. It may also provide a useful prompt to revisit the understanding and assessment of bribery risk in the business.
For more information on anti-bribery and bribery risk, see Bribery Act 2010 Toolkit and Bribery risk: how to assess the inherent and residual risk in your business.
