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| For multinational corporations, overseas business is where markets can be won. Using an agent with good contacts to local officials might prove useful for the company to win the bid in a large government project or to secure an order. However, greasing these contacts with facilitation payments, or more plainly bribes, brings business into the realm of criminal offence. |
Numerous allegations of corruption involving globally operating corporations have surfaced in the media recently. News stories trace the flow of large sums of corporate funds changing hands a number of times – from a company's secret bank account to local ‘consultants’, then forwarded to government officials, before ending up in a Swiss or Caribbean bank account.
One recent example that became publicly known is the case of senior officers from a state-owned Italian power generation company. These officers allegedly bribed government officials in several Arab countries to win contracts and in-turn received kickbacks from their German sub-contractors. Other examples include a large German telecommunications company admitting publicly to having made about half a million Euro (US $ 650,000) in illegal 'facilitation' payments to foreign officials in several countries; or the American oil field service provider in Central Asia that was charged with paying bribes in exchange for orders. And this is not an extensive list.
Probably the most notable example, however, was the finding of a United Nations report in 2005. The report revealed that in the framework of the humanitarian Oil for Food Programme set up by the United Nations in 1995, more than 2000 companies had made illegal payments to the Iraqi government, worth an estimated US $ 1.8 billion.
For a long time, bribery was accepted as a necessary evil for doing business overseas since it was legal and in a lot of countries even tax deductible. Slowly the business world is cleaning up its act, norms are shifting.
Addressing the international supply-side of bribery is no easy task, as different governments, judicial systems, cultures and private sector as well as government interests, are involved.
Two multilateral instruments have taken up this challenge: The Organisation for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (known as the OECD Anti-Bribery Convention) and the OECD Guidelines for Multinational Enterprises.
When the member states of the OECD drew up the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1997, for the first time paying a bribe abroad became a crime at home. The Anti-Bribery Convention is a legal instrument today ratified by 37 countries, making up a share of more than 60 percent of world exports. Transparency International is active in monitoring enforcement of this convention and in its annual progress reports, the latest one published in July 2007, has called for stronger commitment by signatory governments.
Not to be confused with the Anti-Bribery Convention, the second instrument aimed at fighting the supply-side of bribery and corruption are the OECD Guidelines for Multinational Enterprises (Guidelines in short), which take a different approach. The Guidelines are a not a legal instrument but rather a code of ethics. They represent the oldest and most comprehensive code of conduct for business, initially put into place in 1976, later revised in 2000, when detailed recommendations for combating bribery and related areas were added. Currently all 30 OECD members as well as nine other key countries with large shares in foreign direct investment, have signed on.
One of the revisions from 2000 that mark the uniqueness of the Guidelines, is the establishment of a monitoring mechanism – a National Contact Point (NCP) – in each signatory country. The NCP is established to promote and monitor compliance with enhanced anti-corruption standards and to deal with formal complaints of alleged breaches. The institutionalisation of a government body to officially deal with complaints brings the Guidelines farther away from being a purely voluntary system. Moreover, complaints on alleged violation of the Guidelines can by filed by 'any interested party'. This makes the agreement a valuable civil society tool.
Unfortunately, the possibility of making official complaints to the NCP so far has been highly underutilised. To date, about 130 cases have been filed worldwide 11 of them in Germany. One such complaint was filed by Transparency International's German chapter in June 2007. Based on the findings of the UN report on the Oil for Food programme, the complaint alleged 57 major German companies of being among those that have paid kickbacks to the Iraqi government. The outcome of the complaint has yet to be seen, but the extensive media coverage on the complaint raises hopes that the so far highly underutilised Guidelines are finally becoming increasingly relevant.
The non-binding Guidelines for Multinational Enterprises rely on promoting the insight of companies that it pays to keep business clean and transparent. Corrupt practices might induce a profit in the short-term, but in the long run they will harm the company's reputation – and thereby its profits. Surprisingly, the press, following the release of the complaint of the 57 German companies involved in the UN Oil for Food scandal, focused their attention on the German government – noting that governments should do more to raise awareness of the Guidelines and monitoring the compliance to their recommendations.
Transparency International supports both the OECD Anti-Bribery Convention and the OECD Guidelines for Multinational Enterprises and has worked on the promotion of these tools. The movement has been very active in monitoring enforcement of the convention and it will step up its efforts to use the OECD Guidelines to fight bribery. While the complaint to German authorities was a big first step, there are still many to be taken for a world free of bribery.
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