The OECD's 2021 Anti-Bribery Recommendation – what do you need to know?
Published on 17th Dec 2021
Businesses should consider the OECD's significantly updated recommendations when reviewing their anti-bribery processes
On 26 November, the Organisation for Economic Co-operation and Development (OECD) published its Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions (the 2021 Anti-Bribery Recommendation) which amends the 2009 Anti-Bribery Recommendation.
Significant amendments and additions have been made in response to recent trends and challenges, including Council recognition of the role of innovative technologies in combatting foreign bribery.
Addressing the demand side of foreign bribery cases
The 2021 Anti-Bribery Recommendation is encouraging a paradigm shift in the way countries combat foreign bribery. In particular, and this is a novel concept, the Council has included a section focusing on bribe solicitation and the acceptance of bribes. It recommends that member countries raise awareness of solicitation risks and implement or update their policies with a view to deterring individuals and enterprises from soliciting and accepting bribes and facilitation payments.
In the UK, the solicitation or acceptance of a bribe is not a trigger offence for the corporate offence of failing to prevent bribery under the Bribery Act 2010, and it will be interesting to see whether this recommendation prompts an amendment to that legislation.
Sanctions and confiscations
The Council also recommends that member countries take steps to ensure the transparency, efficacy, and proportionality of sanctions for foreign bribery, and adopt a proactive approach to the confiscation of profits from bribery.
In doing so, the Council again addresses the demand side by attempting to make the solicitation and acceptance of bribes a high-risk, low-reward practice, while also encouraging a transparent, co-operative approach as between member countries.
Non-trial resolutions and international co-operation
The recommendation contains a new section which is important to individuals and enterprises seeking to limit their global liability in the event of an investigation. The Council encourages member countries to communicate with one another when carrying out investigations, so as to avoid issues arising out of prosecuting a defendant on the same facts in multiple jurisdictions.
In line with this aim, member countries are also encouraged to pursue other methods of resolution that do not involve trial. This will enable countries to compel companies to enter into non-trial agreements with global effect, therefore avoiding the risk of double jeopardy.
In keeping with the desire to increase transparency and international co-operation, the Council prompts member countries to enter into bilateral and multilateral agreements with one another, and to share expertise to enhance global efforts against corruption.
Protection of reporting persons and incentives for compliance
In what seems to be a direct response to the fact that a growing number of cases involve reports and concerns being raised by parties in close contact with those giving or receiving bribes, the Council incorporates into its 2021 Anti-Bribery Recommendation a direction for member countries to establish frameworks protecting those reporting persons (who are often key links in the investigative chain). Among other specific recommendations, the Council advises member countries to consider allowing for reporter confidentiality and the introduction of incentives.
Member countries are also urged to incentivise companies to develop internal compliance programmes and measures, to similarly incentivise law enforcement, and to encourage government agencies to consider these compliance programmes in their decisions to grant public advantages, such as subsidies, public procurement contracts, and export credits. This recommendation demonstrates a clear commitment by the OECD to crack down on bribery and corruption more widely.
Osborne Clarke comment
The 2021 Anti-Bribery Recommendation is intended to filter down into enforcement initiatives by member countries, including the UK, and the impact of this is likely to be seen in the coming months and years.
As such, the issues highlighted by the OECD provide a helpful steer for business on where the law and enforcement trends may develop in future, and they should be kept in mind when businesses undertake their regular reviews of their anti-bribery processes