On Friday, November 26, 2021, the OECD adopted a new Recommendation with the potential to significantly enhance the global enforcement of bribery of foreign public officials in international business. While not legally binding, the OECD Working Group on Bribery will from now on monitor how different members implement the new Recommendation in the context of its country-by-country evaluation of the OECD Anti-Bribery Convention.
First, and perhaps most importantly, an entirely new section is devoted to the “demand” side of corruption: the government official demanding (or accepting) the bribe. This is a quasi-revolution for the OECD and its Working Group on Bribery, given that the OECD Convention has historically exclusively focused on the bribe supplier. In 2018, the OECD published a study demonstrating that the public officials on the receiving end of corruption were five times less likely to be sanctioned than the bribe provider.
Second, a new section on “non-trial resolution” (settlement procedures like DPAs), which provides the first international guidance on resolving a foreign bribery matter based on a negotiated agreement between a prosecuting authority and either an individual or a legal person (like a company). These new principles will lead to more countries establishing DPA-like mechanisms and likely increase the number of global resolutions, potentially subjecting companies to increased sanctions but giving them finality when resolving a corruption matter.
Third, new provisions on the protection of reporting persons (whistleblowers) and how to incentivize compliance. In particular, the OECD recommends countries consider that companies with effective internal controls and compliance programs should be given due recognition “in their (governments) decisions to grant public advantages, including public subsidies, licenses, public procurement contracts, contracts funded by official development assistance and officially supported export credits.”
Fourth, expanded guidance on international cooperation and handling of multijurisdictional cases, including encouragement to “direct coordination in concurrent or parallel investigations and prosecutions” and pay “due attention” to the risk of prosecuting the same person in different jurisdictions for the same conduct. Thankfully, the OECD seems to have heard the concerns raised by the FCPA community about the need to avoid “piling on” after a single corruption resolution.
Last but not least, the existing OECD Good Practice Guidance on internal controls, ethics, and compliance has been revised and strengthened based on lessons learned in the past decade of compliance. This new international standard will be a useful benchmark for companies grappling with different guidance from multiple enforcement agencies.
The changes in the revised Recommendation are not cosmetic; they are profound and lasting ones that could result in a dramatic shift in the enforcement environment. It remains to be seen how quickly this will impact the coordination of investigations and prosecutions or how the OECD country-monitoring mechanism will adapt to these new requirements.
Companies and their legal counsel will also need to evaluate the advantages of this new framework for their internal controls and compliance programs and the benefits (and drawbacks) of the non-trial resolution guidance for countries that do not yet have such a mechanism formally in place.
The jury is still out for all future potential impacts of these updates — and maybe for a while — but this new OECD Recommendation suggests that change is coming.
Nicola Bonucci, pictured above left, is a Partner in the Global Trade and Investigations & White Collar Defense practices at Paul Hastings based in Paris. Before joining Paul Hastings in 2019, he served for 26 years at the OECD, including fourteen years as the Legal Director for the OECD.
Nathaniel Edmonds, above right, is the a Partneri n the Washington, D.C., office of Paul Hastings. Before joining Paul Hastings in 2013, he served as the Assistant Chief of the FCPA Unit in DOJ’s Criminal Division and Fraud Section, where he spent ten years prosecuting FCPA cases and other complex fraud and corruption matters and served as one of the U.S. delegates to the OECD Working Group of Bribery.