The OECD hosted its first ministerial meeting on the Anti-Bribery Convention on 16 March 2016. Topics discussed included the role of negotiated settlements and self-disclosure in achieving justice, and deterrence in foreign bribery cases. Prior to the meeting, four anti-corruption groups recommended adopting various principles that could govern these settlements. In a ministerial declaration issued at the end of the meeting, ministers and representatives of OECD member states encouraged the OECD to study possible best practices for the use of negotiated settlements in foreign bribery cases.
The Convention’s member state justice ministers and other representatives discussed the detection and enforcement of bribery and corruption, as well as corporate liability of legal entities for corrupt behaviour. Topics raised in these discussions were the protection of whistle-blowers, international cooperation, and anti-corruption compliance for businesses.
Special attention was paid to voluntary disclosure by companies and the possibility of subsequent negotiated settlements. This topic was also addressed in a letter sent to the OECD by anti-corruption groups Transparency International, Corruption Watch UK, the UNCAC Coalition and Global Witness. These NGOs expressed their concerns about the use of negotiated corporate settlements to resolve foreign bribery cases. They stressed that settlements in those cases may not provide for “effective, proportionate and dissuasive sanctions,” as required under the Convention. They further stated that the use of settlements differs from country to country, which leads to an uneven playing field for anti-corruption enforcement.
The NGOs urged the OECD Working Group on Bribery to prepare guidelines based on fourteen principles. These principles set out requirements for member states, their prosecutors and suspected companies when entering into negotiated settlements in foreign bribery cases. OECD guidelines should introduce settlement conditions requiring companies to do a number of things, including:
- Self-report and cooperate – the principles require companies to self-report and fully cooperate with the authorities, which includes cooperation with authorities and agencies in other jurisdictions
- Admit wrongdoing – settlements, including their details, should be submitted to a public hearing and should be used to leverage full disclosure of wrongdoing within the company
- Strengthen and monitor compliance programmes – this includes a public reporting obligation on how the company meets the terms of the settlement
- Compensate victims – the full harm caused by the corruption serves as a basis for the calculation
The OECD stated that it has no formal position on corporate settlements, but that a common approach would be a plus. In a Ministerial declaration issued right after the meeting, the ministers and representatives encouraged the Working Group to study possible best practices that also cover voluntary disclosure and negotiated settlements.
The controversies around negotiated settlements and self-disclosure in foreign bribery cases, however, remain. The Working Group will assess these topics independently from the NGOs. But it seems likely that they will also take into account principles raised by the NGOs. The OECD’s guidelines and reports, although not legally binding, are followed closely by its member states and often lead to developments and enhanced efforts in enforcement. We will monitor these developments and keep you updated.