Canada: The Five Biggest Corruption Compliance Lessons From OECD Foreign Bribery Report

Last Updated: December 30 2014
Article by Graham Erion and Jeffrey Horswill

On December 2, 2014, the Organization for Economic Co-operation and Development ("OECD") released its ground-breaking Foreign Bribery Report. This report analyzed the 427 foreign bribery cases that have been concluded by the 41 countries that are signatories to the OECD's 1999 Anti-Bribery Convention since its adoption. This is the largest survey of bribery enforcement to date and discredits some key myths and assumptions about corruption risks. More importantly, the OECD Report (the "Report") has a number of notable lessons for how Canadian companies should approach and tailor their anti-corruption compliance programs. This bulletin reviews the five most significant findings in the Report and their implications.

1. The biggest risk is State-Owned Enterprises (SOEs), not Ministers and Heads of State

Despite the common perception that heads of state and government ministers are the key beneficiaries of bribery, the Report found that such individuals were only offered 7% of all bribes involved in the cases examined. Rather, the real beneficiaries and risks for corruption are officials in SOEs, who were the recipients of over 80% of all bribes offered in these cases. This is quite a remarkable figure and should serve as a sobering wake-up call for companies that interact with SOEs. As part of their risk assessments and compliance programs, companies should ensure they:

  1. determine whether the companies with which they are dealing are SOEs;
  2. identify which individuals are state officials; and
  3. have proper training programs in place for any employees, third parties, or suppliers who interact with SOEs. This is especially crucial in countries such as China where it can be difficult to identify what companies are state-owned.

Apart from officials in SOEs, the Report found that customs officials were the second leading recipients of bribes (still greater than heads of state and government ministers). There is risk for everyone involved in international travel or importing/trading goods across borders. Risk assessments using Transparency International's recently released 2014 Corruption Perception Index can help identify countries that might have higher risks of corruption, including in their border services.

2. Corruption risks arise in procurement and operations

Another common corruption perception is that the risk mainly lies in trying to win public contracts. The Report shows that this risk is significant with 57% of cases linked to attempts to obtain public procurement contracts. However, the remaining 43% of cases arise from operational activities such as customs clearance, seeking favourable tax treatment, licensing, travel visas or other regular intersections between state officials and commercial enterprises. For companies with foreign operations, this finding means that compliance truly is an ongoing obligation. Care must be taken any time a public contract is sought but significant corruption risks remain, especially in higher-risk jurisdictions at all stages of business operations.

3. Senior management are often involved in bribery schemes

Corruption risks are often seen as a problem with lower-level employees who may not have been properly trained or believe that bribery is culturally acceptable in their jurisdiction. However, the Report found that senior management were involved in over half of the corruption cases reviewed, with a senior manager in 41% and the president/CEO involved in 12% of the bribery schemes subject to enforcement. This means that the importance of establishing a '"tone from the top"' must be more than just setting the right corporate culture; companies should implement a risk reduction strategy that would hold senior management accountable to compliance obligations.

4. Third parties and intermediaries are still a big problem

The corruption risk of third parties and agents acting on a company's behalf are well known but the Report underscored this risk even more by identifying that 75% of the bribes paid in these 427 enforcement actions were actually paid by intermediaries on behalf of the company (whether or not the company or its senior management was even aware the bribe was paid.) This highlights the continued need to conduct proper due diligence on third parties who may interact with public officials and ensure employees do not retain third parties or suppliers until they have been pre-cleared from a corruption risk perspective.

5. Enforcement is increasing

Of the 427 bribery cases over the last 15 years, 366 (85%) of these were in the last six years alone. Enforcement action in treaty countries is clearly on the rise. The Report notes that apart from the 427 cases that have been completed, a further 390 corruption investigations are currently underway in signatory countries to the 1999 Convention. This heightened enforcement in recent years further requires companies with foreign operations to ensure they have an appropriate compliance program in place.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions