ANTI-CORRUPTION / Is anti-corruption a failure?

A. OECD Anti-bribery Convention

The OECD Anti-bribery Convention was a ground-breaking text. It copied the FCPA and submitted all rich Western exporting nations to a tough regime.

a.- To make sure the short but explicit text would be complied with a a peer to peer review would be installed and all non-compliant texts and enforcements would be pursued until a satisfactory solution was given.

b- A major test was the Al Yamamah scandal. An inquiry has revealed that a huge arms deal between the United Kingdom and Saudi Arabia had been concluded thanks to the payment of very large bribes. The inquiry was stopped in the national interest. What was meant to be the advent of the famous level playing field would become a loose promise.

c.- Another flaw of the system was that only the supply side (the bribe-givers) were condemned Under the OECD Convention, the demand side (the foreign public officials who had demanded the bribe) were given a kind of immunity. This situation would seriously demotivate the Western companies which saw that they would harshly be treated for their malpractice, while the foreign officials who were at the origin of their offence would go unscathed.

d.- Finally, the so-called ‘facilitating payments’ would not be prosecuted under the pretense that they would not be possibly the object of a serious inquiry.

B. The United Nations Convention

a.- This convention could have been much stronger, as it was not anymore a regional legal instrument but was literally global. It also covered public and private corruption, national and international and active and passive corruption.

b.-It even brook new ground with influence peddling, illicit enrichment and money laundering with the bribe money.

c.- A review system was installed but it rapidly appeared as too complex and not convincing enough.

d.- Enforcement on the basis of this Convention is not sufficiently impressive. Peer review pressure is less impressive than was is the case under the OECD regime

C. Leading national legislation

a.- A number of countries have made a special effort to enact legislation that would be really painful if thoroughly implemented. One thinks here for in stance about the USA, the UK, France, Germany.

b.- These countries have in common that they have (since a long time or only recently) an extra-judicial system to prosecute indices of corruption.

c.- Such procedure may lead to deferred prosecution agreements, what in fact means that the company concerned admits that it should pay a certain amount of money to the prosecuting agency(ies) and that it has do due a certain redress of its practices/malpractices. If it does not improve the situation, it will be prosecuted under a regular judicial procedure.

D. The efforts made

a.- Companies, large and small pay impressive amounts of money and spend long management hours to put into place sophisticated ethics & compliance systems. This encompasses information, education, training, improvement of human resources techniques, managerial care through the installation of compliance officers, due diligence systems, internal and external audit, investigations, renewed and improved marketing techniques.

b.- An industry of ethics and compliance has appeared with so many conferences, seminars, books, numerous recommendations and expensive digital platforms.

E. Where do we stand now?

a.- I am personally making strenuous efforts to fight corruption in all its forms since some 26 years. And what do I see when I open the newspapers: more and more large and prestigious companies are found guilty of impressive malpractice and have to pay dazzling amounts of money because of this.

b.- One publishes the top list of ten companies having paid the largest amounts to the Department of Justice. The amounts are always more astounding.

c.- The countries considered as the virtuous are higher and higher on the list (Nordic companies). The Western European companies are getting the highest podiums steps.

F. What is wrong with the system?

a.- What do we do what we should not do. What don’t we do which we should do?

b.- Is greed inherent to our economic system?

c.- Are we living in a time where all the accumulated evil come to the light?

d.- Should we Simply go for more of what we do now or should we change paradigm?