The OECD anti-bribery convention's necessary dual commitments: substance and enforcement

• Author: Haley Peterson Denler
• Position: J.D., Georgetown University Law Center, 2022; B.A., Brigham Young University, 2018
• Pages: 541-563

THE OECD ANTI-BRIBERY CONVENTION’S

NECESSARY DUAL COMMITMENTS: SUBSTANCE

AND ENFORCEMENT

HALEY PETERSON DENLER*

ABSTRACT

International corruption took the spotlight on the world stage during the first

impeachment of President Donald Trump, but corruption involving foreign

governments has been a focal point for international organizations for decades.

The Organization for Economic Cooperation and Development (“OECD”)

adopted the Convention on Combating Bribery of Foreign Public Officials in

International Business Transactions (“Anti-Bribery Convention”) in 1997,

aiming to harmonize standards and efforts against corruption worldwide.

Although all States Parties to the Convention have adopted implementing legis-

lation, enforcement remains the burden of a small handful of countries. This

Note analyzes the reasons for the lack of domestic enforcement and provides pos-

sible solutions to encourage greater success in the OECD fight against global

corruption.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541

II. THE ANTI-BRIBERY CONVENTION AND ITS ADOPTION . . . . . . . . . . 543

III. THE WORKING GROUP ON BRIBERY AND THE PEER REVIEW

PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546

IV. DOMESTIC (LACK OF) ENFORCEMENT OF THE CONVENTION. . . . . 551

V. INCREASING ENFORCEMENT AMONG STATES PARTIES . . . . . . . . . . . 556

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 562

I. INTRODUCTION

“Quid pro-quo” was in nearly every headline in late 2019 and early

2020, as President Donald Trump’s first impeachment and Senate trial

spotlighted an alleged exchange of U.S. assistance for a personal, politi-

cal benefit. Such an allegation gripped people in the United States and

across the globe, in part because of its possible similarity to a factor of

* J.D., Georgetown University Law Center, 2022; B.A., Brigham Young University, 2018. I

would like to thank Professors Robert Luskin and Daniel Kahn for their comments and guidance

on earlier versions of this Note during their Spring 2020 Global Anti-Corruption Seminar. I also

give my thanks to the editors and staff of the Georgetown Journal of International Law for their

suggestions. V

C 2022, Haley Peterson Denler.

541

President Richard Nixon’s infamous Watergate scandal — “a U.S.

President’s use of undisclosed contributions from multinational corpo-

rations and foreign states to pay for legal expenses in connection with

the President’s abuses of power and a resulting impeachment inquiry.”

1

Susan Simpson, Federal Criminal Offenses and the Impeachment of Donald J. Trump: Foreign

Corrupt Practices Act, JUST SECURITY (Dec. 16, 2019), https://www.justsecurity.org/67738/federal-

criminal-offenses-and-the-impeachment-of-donald-j-trump/#ForeignCorruptPracticesAct.

In the 1970s, the Watergate scandal was a catalyst for the United States

to monitor, regulate, and prosecute bribery, eventually leading to the

Foreign Corrupt Practices Act (“FCPA”) in 1977.

2

Corruption scandals

and the end of the Cold War in the 1990s sent shockwaves through

other governments, providing the stimulus necessary for a multilateral

agreement against bribery.

3

When the OECD Convention on Combating Bribery of Foreign

Public Officials in International Business Transactions (“Anti-Bribery

Convention”) was signed in 1997, OECD member states and non-mem-

ber states committed to more than just a passive signature of support

for the OECD and disapproval of bribery. Unlike many other interna-

tional documents, the Anti-Bribery Convention morphed from non-

binding recommendations to legally binding responsibilities — to

prohibit and prosecute bribery of foreign public officials. Because

Convention signatories included many of the world’s most developed

and wealthiest countries, success seemed within reach.

More than two decades have passed since the original signature and

ratification of the Convention. Participating countries — including all

OECD member states and a growing number of non-member signato-

ries — come from five continents and account for eighty-three percent

of world exports and “over ninety percent of foreign direct invest-

ment.”

4

IMF, OECD Convention on Combating Bribery of Foreign Public Officials in International Business

Transactions, at 2, 4 (Sept. 18, 2001), https://www.imf.org/external/np/gov/2001/eng/091801.

pdf; Transparency Int’l, Exporting Corruption: Progress Report 2020: Assessing Enforcement of the OECD

Anti-Bribery Convention 4 (Oct. 2020), https://images.transparencycdn.org/images/A-slim-version-

of-Exporting-Corruption-2020.pdf.

All of these States have passed legislation outlawing the bribery

prohibited by the Convention.

5

See Organization for Economic Cooperation and Development [OECD], Convention on

Combating Bribery of Foreign Public Officials in International Business Transactions: Monitoring Schedule

December 2016 - June 2026 (June 2020), https://www.oecd.org/corruption/anti-bribery/Phase-4-

Evaluation-Calendar.pdf. Each country has passed Phase I, which requires implementing

1.

2. See CECILY ROSE, The Domestic Influence of the OECD Anti-Bribery Convention and the Working

Group on Bribery, in INTERNATIONAL ANTI-CORRUPTION NORMS: THEIR CREATION AND INFLUENCE ON

DOMESTIC LEGAL SYSTEMS 59, 63 (2015).

3. See id. at 63, 65.

4.

5.

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