Its emphasis is on multi-jurisdictional enforcement by governments, the importance of self-reporting and internal investigations by businesses, and the use of mitigation incentives to reward improved compliance.
The Study advises G20 members to learn from the tools implemented in particular states to create effective approaches to combating corrupt practices. Each needs to decide which of those tools fits into their legal systems, but the value of looking at other states’ methods and supplementing existing models cannot be understated.
Basing anti-corruption efforts solely on criminal or administrative proceedings for bribery cases is not the most effective solution all the time, the Study notes. Launching an investigation for evidence by authorities can be a great deterrent to future transgression, but so too can a cooperative approach with a company that is trying to comply by the rules.
The Study states: “Tough enforcement for particularly bad cases is needed with the ‘effective, proportionate and dissuasive’ sanctions required by UNAC [UN Convention Against Corruption] and the OECD (Organisation for Economic Co-operation and Development) Convention. What is also needed however is a cooperative approach by states and companies that are trying to move to zero tolerance of bribery.”
The Study provides readers an overview of how a variety of nations could claim jurisdiction for bribery, bringing in a variety of authorities pursuing investigations and sanctions. It enumerates the conventions that target either the persons who pay bribes or those who accept them, and the national laws that do the same. The United States often pursues non-U.S. companies under the FCPA, and the UK and China have done the same, looking for any territorial link to their countries.
After noting how rigorous countries have been in pursuing bribery enforcement, the Study says that more could be done to make “global settlements” truly global. The countries involved often coordinate their efforts, but it’s rare that the country in which the bribe was offered and that in which it was accepted resolve all outstanding issues together and proper restitution is made to the “demand” state. (See our discussion about developing countries being left out of settlement monies.)
The Study ends on a positive note, highlighting how self-reporting and cooperation by companies will influence public opinion about global companies positively and serve as a reason states could offer some flexibility with sanctions.
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Julie DiMauro is the executive editor of FCPA Blog. She can be reached here.
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