Turkey: How To Prevent Bribery: An Analysis Of The OECD Foreign Bribery Report

Gönenç Gürkaynak*, Ç. Olgu Kama** and Burcu Ergün***

A company engaging in corrupt behavior risks significant legal repercussions due in part to the regulatory and enforcement changes that occurred in the last few years. Rigorous enforcement of the extraterritorial US Law Foreign Corrupt Practices Act, along with the entry into the force of OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions ("OECD Convention") and the enactment of the UK Bribery Act, have recently formed an international framework compelling companies to at least reflect on the high cost of corruption. Now companies might face corruption sanctions if a bribe is paid to foreign public officials. With a global anti-corruption infrastructure gradually forming around the globe, the last decade has witnessed a steep rise in fines imposed on corrupt behavior, the spill-over effect experienced by multi-national enterprises ("MNEs") in parallel have led to the increased media attention on corruption. MNEs may not only face sky-rocket high civil and criminal fines but also imprisonment of their (top) executives, injunctions and confiscations in several jurisdictions, debarment from tenders, a dramatic loss of reputation deteriorating the image of the company before its employees, consumers, suppliers, clients, shareholders and the public in general.

In the face of such high risks, MNEs should be vigilant to deter, detect and prevent corruption. The OECD Foreign Bribery Report[1] ("Report"), published in 2014, provides useful guidance and important data to MNEs demonstrating where and how they can be vulnerable to corruption.  This document can further serve as a guide for those companies wishing to eliminate corruption from their activities.

Larger Companies are under the Radar for Foreign Bribery

According to the Report, 60% of the companies involved in foreign bribery were larger companies. Even though such a finding does not necessarily state that MNEs are the only ones who engage in bribery abroad (taking into account that small and medium sized enterprises could also be engaging in corruption but in smaller amounts thus not garnering the attention of enforcing authorities), it still means that MNEs are under the radar of the enforcing authorities in terms of foreign bribery.

The Report also finds that the country which instituted the highest number of enforcement actions against foreign bribery since the OECD Convention came into force is the USA with 128 enforcement actions; Germany and Korea have 16 and 11 enforcement actions respectively;  Italy,  Switzerland and the UK have 6 enforcement actions each. This suggests that companies established in – or with commercial connections to – these jurisdictions have the highest likelihood of being investigated.

The Context Matters

The Report also finds that the vast majority of foreign bribery took place in four sectors.  19% of the cases were in extractive industry, 15% were in construction, 15% were in transportation and storage,  and 10% were in information and communication . One common characteristic of these four sectors could be that all are heavily dependent on permits received from public officials and thus potentially prone to red tape. By the same logic, the Report demonstrates that 57% of foreign bribery took place during public procurement and 12% with customs procedures. Foreign bribes were mostly paid to public officials. 27% were paid to employees at public enterprises, 11% were paid to customs officials, 7% were paid to health officials and finally, defense officials received 6%.

In light of the above data, companies active in sectors or transactions mentioned above should be vigilant, e.g. increasing the level of scrutiny, to prevent corruption.

Tone from the Top?

According to the Report, 41% of the foreign bribery cases contained the direct involvement/authorization of management level employees for the bribery. 12% of foreign bribery cases also contained the direct involvement of the CEO of companies. Given the fact that in all of the foreign bribery cases almost 1 in 2 top level executives were involved at some level in the corrupt dealings, this data could justify the emphasis put on the behavior of the top level management as a key component of an effective compliance program. Accordingly, when it comes to compliance, the tone should be set from the top since the top managers are the leaders of the company and employees follow the leaders. An effective compliance program should apply from cloak room to board room.  Such high levels of participation among upper management also demonstrate that the compliance policies are not internalized by the top level executives themselves, and the company should show best efforts to train its top level managers. In addition, the company could enforce incentives to encourage compliant behavior.

Importance of Third Party Due Diligence

One of the most significant findings of the Report is that 75% of the cases involved payments through intermediaries. The bribery took place through local sales agents, distributors, subsidiary companies, local consulting firms, shell companies established to benefit public officials etc. This data, coupled with the existence of the willful blindness doctrine[2], demonstrates the significance of third party due diligence.  

Although a company may prefer to use third parties in order to enter a foreign market more quickly, such third parties should not be chosen too swiftly and without proper scrutiny. Thorough due diligence should be exercised continuously when retaining them because if they are not chosen carefully, then the company puts itself at great risks of facing corruption charges. A thorough due diligence can be realized during the pre-agreement phase, agreement negotiations phase and during the discharge of the contractual obligations. During the pre-agreement phase, the past actions and the reputation of the third party should be vetted as well as determining whether the company or individual has the expertise to discharge the required obligations. During agreement negotiations, the services of the third party and their payment terms should be clearly stipulated in the agreement. The principal company should continuously monitor the third party when the contract is being exercised. Certain red flags include  reputation of previous unethical behavior; representatives or consultants recommended by governmental official or close relatives of an official; request of payment in cash and request for reimbursement for poorly documented or questionable expenses.  If any of these factors apply, even greater scrutiny is necessary.

Self-Reporting and Settlements

The Report demonstrates that the authorities became aware of the alleged conduct through self-reporting in a third of all cases. 13% of the cases were uncovered through investigations and only 2% of the cases were initiated through whistleblowing. Given most of the foreign bribery cases were prosecuted in the US, the tendency to self-report could be result of the US's willingness to provide fine reductions for those companies who self-report. Such fine reductions in turn, emphasize the importance of the existence of a compliance program, as the Report suggests that 31% of the irregularities were realized during internal audits, and 28% of them were uncovered during merger and acquisition due diligences.

According to the Report, 69% of the foreign bribery cases ended with settlements. This again, is reflective of the US pattern where the enforcing authorities enter into deferred prosecution or non-prosecution agreements if there are mitigating factors such as self-reporting and cooperation during an investigation.


The Report, taking into account 427 enforcement actions that took place since the entry into force of the OECD Convention until February 2014, excels in demonstrating where MNEs fail to prevent corruption. Accordingly, incentivizing top managers not to engage in bribery, setting the tone at the top, training the managers, exercising thorough third party due diligence and being extra diligent in sectors such as transportation and communication especially when bidding for tenders and realizing customs transactions, are some of the actions MNEs can take to ensure their compliance with applicable anti-corruption laws.

* ELIG, Attorneys-at-Law, Managing Partner gonenc.gurkaynak@elig.com
** ELIG, Attorneys-at-Law, Partner olgu.kama@elig.com
*** ELIG, Attorneys-at-Law, Associate burcu.ergun@elig.com

[2] The US legal concept of willful blindness refers to a situation where a person willfully separates itself from the actual knowledge of bribery and circumstances that the person should have been aware of the corrupt act were present.

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.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

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