United States: OECD recognises anti-bribery enforcement and recommends enhancements

Transnational bribery enforcement under the U.S. Foreign Corrupt Practices Act (FCPA) has increased significantly since the last OECD evaluation of the implementation of the OECD Anti-Bribery Convention by the United States, according to a new OECD report. But effectiveness could also be enhanced, including by taking into consideration private sector views in the United States’ periodic review of its policies and approach on facilitation payments.
 
Since 2002, 71 individuals and 88 enterprises have been held accountable, criminally and civilly, for transnational bribery. The U.S. has also achieved record penalties for FCPA violations during this period, including, in one case, USD 800 million against a single company.

In the context of its regular cycle of reviews, the 38-country OECD Working Group on Bribery has just completed the first review of a new phase of peer review mechanism, evaluating the United States enforcement of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related instruments.

In its report, the Working Group commended the United States for its engagement with the private sector, substantial enforcement, and commitment from the highest levels of the U.S. Government. In addition to the recommendation on facilitation payments, it also made recommendations that include the following on ways to improve U.S. enforcement:

• Consolidating publicly available information on the application of the FCPA, including the affirmative defence for reasonable and bona fide expenses;
• To increase transparency, making public, where appropriate, more information on the use of Non-Prosecution Agreements (NPAs) and Deferred Prosecution Agreements (DPAs) in specific cases; and
• Ensure that the overall limitation period applicable to the foreign bribery offence is sufficient to allow adequate investigation and prosecution.

The Working Group also highlighted good practices developed within the U.S. legal and policy framework that helped it achieve such a high level of enforcement, including the creation of specialised enforcement units dedicated to foreign bribery, and the use of plea agreements, DPAs and NPAs and the appointment of corporate monitors. These efforts have also encouraged the establishment of robust compliance programmes and measures among companies subject to U.S. anti-bribery law. The Working Group also welcomed the United States’ efforts to encourage close co-operation between the United States and foreign authorities.

The report, available at www.oecd.org/daf/nocorruption, lists all of the recommendations adopted by the Working Group on Bribery, and includes an overview of enforcement actions and specific legal and policy features in the United States for combating the bribery of foreign public officials. The United States will make an oral follow-up report on its actions to implement certain key recommendations of the Working Group after one year. The United States will further submit a written report to the Working Group within two years, which will be the basis of a publicly available evaluation by the Working Group of the United States’ implementation of the recommendations.

(From the OECD)