What was excluded from the Convention on Combating bribery of Foreign Public officials in International Business?

The BNDES and the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

One of the BNDES’ main goals is to support the sale of high added-value goods and services produced and exported from Brazil.

The goods and services are part of international negotiations between Brazilian export companies and importers located in several countries. Several foreign governments are among the importers of Brazilian goods and services.

Foreign governments enter into trade agreements with Brazilian exporters to purchase Brazilian goods and services, and it is the BNDES that often finances the exports of these goods and services.

Financing is generally formalized through financing contracts between the BNDES and foreign governments that purchase goods and services, with the exporters’ consent. Disbursements are made in Brazilian Reals, in Brazil, into the bank account of the exporting company, on behalf of foreign governments, who assume the debt with the BNDES.

Since the advent of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions , entered into by the Organization for Economic Cooperation and Development (OCDE)

In compliance with the Convention, the BNDES has implemented the measures described below:

Declarations of Commitment

Exporter’s Declaration

The BNDES offers support for export products through it Pre- and Post-Shipment lines, which requires the exporter to sign a Declaration of Commitment, in compliance with Resolution Nº. 62, August 17, 2010

Declarations by the Financed Party

The BNDES requires three declarations from parties receiving financing. One affirms that the process to choose and contract the exporter meets all requirements established in the laws of the financed party’s country. This declaration must be confirmed by an authorized attorney in accordance with the legislation in the financed party’s country.

The terms of the second declaration state that the financed party is aware that Brazil is a signatory to the OECD Convention and that conducting active corruption and trading influence in international commercial transaction are crimes classified in the Brazilian Penal Code.

A third declaration form the financed party, which states that it is aware that Brazilian or foreign companies can be held administratively and civilly accountable under Law Nº. 12,846

Specific anti-corruption clauses in the BNDES’ contracts

In addition to the aforementioned declarations, in the BNDES’ financing contracts for export credit, there is a clause that conditions the disbursement of each installment of credit to the absence of any obstruction against official Brazilian support, due to the commitments undertaken by Brazil under the OECD Convention.

Disclosure of the OECD Convention

Aiming to improve awareness, perception and better identification of actions to implement the OECD Convention, the BNDES, in this section on the site, provides information on the Convention’s terms regarding the recommendations related to combating corruption in international transactions. The BNDES’ website on exports and international insertion also offers a link to the CGU’s website on the OECD Convention.

On this site, in the Declaration of the Convention, under the topic  “Official Text of the Convention Available,” as well as other interesting links, such as the Revised Recommendation of the Council on Combating Bribery in International Business Transactions of 1997, the CGU summary, the list of signatory countries, the reports resulting from the evaluation of the first and second implementation phases of the OECD Convention, among other information.

Forwarding complaints

The  BNDES’ Ombudsperson is the institutional channel responsible for receiving complaints or questions regarding acts committed by foreign public officials in projects financed by the Bank.

Other measures

Ethics

The Ethics Committee at the BNDES system, aims to, among others:

• clarify and rule on behavior that indicate ethical breaches;
• guide the employees of the BNDES System on ethical conduct, including relationships with citizens and the protection of public property; and
• receive complaints, verify facts and apply ethical reprimand to Bank employees.

The Ethics Commission is a member of the Management System of Ethics of the Federal Executive Branch. The BNDES participates in the National Forum for Ethical Management of State Enterprises, which conducts seminars on the topic.

Another role of the Commission is to apply the Code of Ethics of the BNDES System, which includes relationship issues that reach beyond the BNDES system in terms of not colluding with any type of irregularity. The official calls offering public posts make express reference to the ethics code, so that candidates wishing to join the BNDES’ staff have prior knowledge.

Research of Registration

The BNDES, to begin or continue any business relationship with its customers, requests them and potential stakeholders to provide registration information concerning, among other things: the controllers and managers of the respective companies; the company’s history concerning its relationship with society, including the National Financial System, suppliers and control bodies; as well as information that can help characterize, or not, any politically-exposed people (PEP). Registration forms are available on this website.

Concerning credit for export operations, the BNDES previously checks if exporters appear on public lists of companies punished by public administration, list of companies forbidden to enter into contracts with public administration, as well as international lists, such as exclusion by the World Bank, the African Development Bank, Asian Development Bank, the European Bank for Reconstruction and Development and the Inter-American Bank for Reconstruction and Development, among others.

Anti-corruption agreement among high-economic power countries

• English
• French[1]

The OECD Anti-Bribery Convention (officially Convention on Combating Bribery of Foreign Public Officials in International Business Transactions) is an anti-corruption convention of the OECD that requires signatory countries to criminalize bribery of foreign public officials. The convention is a legally binding international agreement that focuses on the supply side of bribery by criminalizing acts of offering or giving bribes to foreign public officials by companies or individuals. Its goal is to create a level playing field in the international business environment.

A 2017 study found that multinational corporations that were subject to the convention were less likely to engage in bribery than corporations that were based in non-member states.[2] A 2021 study found that the convention may increase bribery by firms from non-ABC member countries and lead firms in ABC member countries to shift to bribery through intermediaries in non-ABC member countries.[3]

History

In 1989, the OECD established an ad hoc working group for comparative review of national legislations regarding the bribery of foreign public officials. In 1994, the OECD Ministerial Council adopted the Recommendation of the Council on Bribery in International Business Transactions. The convention was signed on 17 December 1997 and came into force on 15 February 1999.[4] A 2009 recommendation provides further guidance for signatory countries on how to deter and detect the supply side of foreign bribery and on how to investigate allegations.[5]

Principles

Parties to the convention agree to establish the bribery of foreign public officials as a criminal offence under their laws and to investigate, prosecute and sanction this offence. Key elements of their commitments include creating a framework in which companies—not just individuals—can be held responsible for foreign bribery, establishing dissuasive sanctions and a basis for jurisdiction that is effective in combating bribery of foreign public officials, and co-operating with foreign law enforcement agencies in the fight against foreign bribery.[6]

The OECD has no authority to implement the convention, but instead monitors implementation by participating countries. Countries are responsible for implementing laws and regulations that conform to the convention and therefore provide for enforcement. The OECD performs its monitoring function in a four-phased examination process, with Phase 4 launched on 16 March 2016. Phase I consists of a review of legislation implementing the conventions in the member country with the goal of evaluating the adequacy of the laws. Phase 2 assesses the effectiveness with which the legislation is applied. Phase 3 assesses how well adherents are enforcing the convention, the 2009 recommendation, and any follow-up recommendations from Phase 2. Phase 4 is intended to be a tailored review specific to the needs of the adherent country.[7] The Working Group on Bribery prepares a public report at the end of each phase. These reports are adopted under the principle of consensus minus one, meaning that the country under examination cannot block publication of the report.[8]

Members

The convention is open to accession by any country which is a member of the OECD or has become a full participant in the OECD Working Group on Bribery in International Business Transactions. As of 2018, 44 countries (the 37 member countries of the OECD and 7 non-member countries) have ratified or acceded to the convention:[9]

Costa Rica, Lithuania, Colombia and Latvia are the most recent states to have ratified the convention, having done so on 23 July 2017,[10] 16 May 2017, 19 January 2013[11] and 30 May 2014,[12] respectively. Countries that have participated as observers in the Working Group include China, Peru, Indonesia, and Malaysia.

See also

• European Public Prosecutor
• Group of States Against Corruption
• International Anti-Corruption Academy
• ISO 37001 Anti-bribery management systems
• Transparency International
• United Nations Convention against Corruption

References

1. ^ a b c "OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions". Organisation for Economic Co-operation and Development. Retrieved 30 August 2018.
2. ^ Jensen, Nathan M.; Malesky, Edmund J. (2017). "Nonstate Actors and Compliance with International Agreements: An Empirical Analysis of the OECD Anti-Bribery Convention". International Organization. 72: 33–69. doi:10.1017/S0020818317000443. ISSN 0020-8183. S2CID 158446483.
3. ^ Chapman, Terrence L.; Jensen, Nathan M.; Malesky, Edmund J.; Wolford, Scott (2021). ""Leakage" in International Regulatory Regimes: Did the OECD Anti-bribery Convention Increase Bribery?". Quarterly Journal of Political Science. 16 (4): 387–427. doi:10.1561/100.00019193. ISSN 1554-0626. S2CID 210063866.
4. ^ Boorman, Jack (18 September 2001). OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (PDF) (Report). IMF. Retrieved 18 March 2012.
5. ^ "OECD Recommendation on Further Combating Bribery of Foreign Public Officials". OECD. Retrieved 14 December 2020.
6. ^ "Text of the OECD Convention on Combating Bribery of Foreign Public Officials". OECD. Retrieved 14 December 2020.
7. ^ "Country monitoring of the OECD Anti-Bribery Convention". OECD. Retrieved 30 September 2017.
8. ^ "Phase 2 country monitoring of the OECD Anti-Bribery Convention". OECD. Retrieved 30 September 2017.
9. ^ Ratification status. [1]
10. ^ "Costa Rica to join the OECD Anti-Bribery Convention" (Press release). OECD. Retrieved 30 September 2017.
11. ^ Carrere, Jean (30 November 2011). "Colombia joins OECD Anti-Bribery Convention". Colombia Reports. Retrieved 18 March 2012.
12. ^ "Latvia to join OECD Anti-Bribery Convention" (Press release). Organisation for Economic Co-operation and Development (OECD). 7 April 2014. Retrieved 4 December 2014.

External links

• OECD Anti-Bribery Convention

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