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Richard L. Cassin
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Elizabeth K. Spahn
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Julie DiMauro
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Thomas Fox
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Marc Alain Bohn
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Bill Waite
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Shruti J. Shah
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Russell A. Stamets
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Richard Bistrong
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Eric Carlson
Contributing Editor

Removing Russia from the OECD Working Group on Bribery would be a mistake with unintended consequences

On February 25, the Committee of Ministers of the Council of Europe (CoE) launched a procedure to suspend Russia from its rights of representation in the organization. Following that, on March 15, Russia informed the Secretary General of the CoE of its withdrawal from the organization and its intention to denounce the European Convention on Human Rights. The following day, the CoE’s Committee of Ministers decided that Russia ceased to be a member of the organization.

The Council of Europe is not the only international organization reacting to Russia’s unjustifiable aggression against Ukraine. These reactions are fully understandable, but some lingering questions remain: in doing so, will life in Russia be made more difficult or easier? Don’t we risk leaving victims and stakeholders in a blind spot?

Indeed, following the exclusion from the COE, the European Court of Human Rights has decided to suspend the examination of all applications against the Russian Federation pending its consideration of the legal consequences of the Committee of Ministers’ decision for the work of the Court. This and Russia’s denunciation of the European Convention on Human Rights eventually means that persons under Russia’s jurisdiction will no longer be able to turn to the Court, the judicial arm of the Council of Europe, as a last resort after exhausting their country’s courts. Even though it is overly optimistic to assume that Russia would have paid due regard to the Court’s rulings in this context, are we sure that ceasing to scrutinize human rights abuses will do justice to the victims?

The same can be said about the Working Group on Bribery of the Organisation for Economic Co-operation and Development (OECD). This Group was established to monitor the implementation and enforcement of the 1997 OECD Anti-Bribery Convention and its related Recommendations. According to Transparency International, the Working Group’s monitoring mechanism is considered the “gold standard.”

Russia has been a Party to the OECD Anti-bribery Convention since 2012 and, as such, a member of the Working Group. Russia cannot be excluded from the Convention as this treaty does not include a specific provision for that purpose but OECD Members might decide to exclude Russia from the Working Group on Bribery. However, this would mean in practice that Russia’s implementation and enforcement of the 1997 OECD Anti-Bribery Convention would no longer be monitored and documented.

This would also mean no more oversight on Russian companies operating abroad, including in countries like China and India that have not implemented economic restrictions with Russia. Are we sure this would not make Russia’s life much easier? How will transnational corruption from Russian companies be examined and documented under the Working Group on Bribery’s system while Russia will still be party to the Convention? Would it promote the transparency and integrity that the OECD seeks to ensure?

One could reasonably argue that this is the right time for reinforced monitoring of Russia’s obligations rather than giving it a greater chance to become a “free rider.” Monitoring a country that does not wish to cooperate may, of course, be more complex, but, fortunately, it doesn’t prevent the Working Group on Bribery from documenting States’ failures in the implementation of the Convention. Nor does it prevent the Working Group from publishing an evaluation report. Such reports are adopted through the “consensus minus one” principle, and Russia would not be able to block them.

If maximal pressure must be kept on Russia, it should be done through naming and shaming in all possible ways and all available fora, including the OECD Working Group on Bribery.

More generally, in all areas involving a monitoring mechanism (FATF, OECD Global Forum on transparency and exchange of information), the objective should be to find means and procedures to maintain the pressure while making the international community’s condemnation loud clear. Acting otherwise entails a great risk: to give Russia an easy way to evade its international obligations and make it a transnational economic crime haven.

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Nicola Bonucci, pictured above left, is a Partner at Paul Hastings, Paris and former Director for Legal Affairs OECD. He can be contacted here

Regis Bismuth, above right, is a Professor of Law at Sciences Po Law School, Paris. He can be contacted here

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