Mark Pieth, left, is the chairman of the OECD Working Group on Bribery, which monitors how countries are criminalizing foreign bribery in accordance with the OECD Anti-Bribery Convention. He’s also a professor of criminal law and criminology at the University of Basel, Switzerland.
Prior to joining the University in 1993, he served for four years as Head of Section – Economic and Organised Crime at the Swiss Federal Office of Justice (Ministry of Justice and Police).
In November 2011, Pieth was named chairman of FIFA’s International Governance Committee, the group tasked with reforming soccer’s international governing body after a series of corruption scandals.
He was kind enough to answer our questions on private and public sector corruption.
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Russia just joined the OECD Anti-Bribery Convention, and China is reportedly fast-tracking the process. What new challenges does this present to the OECD Working Group?
First, it needs to be stressed that this is a very positive development. It is within the logic of the OECD Anti-Corruption initiative to involve all major exporting nations. Obviously, the countries in question face major challenges on a domestic level; they are struggling with domestic corruption problems and the rule of law is only emerging. The OECD Working Group on Bribery routinely assesses the ability of Member States to live up to their commitment.
How are you prioritizing the problems of enforcement across all 40 signatories?
Basically, all countries are treated equally. Everyone is subjected to a thorough monitoring process. It is no secret, though, that particular emphasis is placed on large trading nations.
In your experience, do countries whose industries are largely controlled by government have an easier or a harder time criminalizing foreign bribery?
State-owned enterprises pose problems, as their managers are frequently linked to government. We have time and again been confronted with particular challenges in the defense sector (an area often very close to government control). Law enforcement in many instances hesitates to open investigations for reasons of national interest.
What do you think most effectively motivates companies to become compliant? Is it the fear of harsh punishment, or of damage to reputation? Or is it the ability to present an “adequate procedures defense,” as in the U.K. Bribery Act?
I believe that these options are two sides of the same coin. Corporate criminal liability, together with harsh fines and disgorgement of profits, put in question economic success. Companies can generally prevent liability by proving that they have introduced a sound compliance system and that the concrete perpetrator was the inevitable “rogue employee.”