The new OECD Anti-Bribery Recommendation: Practical implications for business

The OECD Council’s update to the Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions is the result of a complex series of steps that started back in 2018, comprising negotiations and multiple consultations with external partners.[1]

The 2021 Recommendation, like its preceding version, integrates the provisions of the OECD Anti-Bribery Convention, ratified by 44 countries so far,[2] which was adopted in 1997 to set forth effective measures to tackle bribery of foreign public officials in international business transactions.

Key compliance measures for companies

Most notably, in an effort to encourage a “holistic approach”[3] in the fight against bribery through a spectrum of new and more varied measures, the 2021 Recommendation includes some relevant changes to its Annex II, bearing the OECD Good Practice Guidance on Internal Controls, Ethics and Compliance.

In the 2009 version of the Recommendation, the Guidance already provided the key cornerstones of an anti-corruption compliance program. Among these are commitment from senior management, clearly articulated anti-corruption policies and ethical rules, implementation monitoring and testing, and periodic reviews of and training on the compliance program, as well as adequate reporting channels.

The 2021 Recommendation strengthens certain aspects of the Guidance by adding specific language to highlight the relevance of the following:

• With respect to high-level commitment, the involvement of the Board of Directors (or equivalent body) in anti-corruption efforts, as to foster “a culture of ethics and compliance”[4]
• The accessibility of anti-corruption policies to employees, third parties and foreign subsidiaries (properly translated, if necessary)
• The adoption of proper compliance measures to manage, amongst others, cases of suspected bribery, conflicts of interest, hiring processes, tender participation and relationships with intermediaries, with strengthened standards to be implemented within relationships with business partners
• A “strong and effective”[5] whistleblowing system, allowing for confidential and anonymous reporting, including anti-retaliation measures to protect whistleblowers
• The recourse to risk-based due diligence in cases of mergers and acquisitions.

Finally, the 2021 Recommendation makes some remarkable additions with respect to corporate liability for the bribery of foreign public officials, emphasizing that it should be ensured that, on one hand, state-owned enterprises are held liable for the latter offense, as well as, on the other, companies cannot avoid liability by resorting to M&A or “otherwise altering their corporate identity.”[6]

Other notable amendments

In addition, the 2021 Recommendation puts new and broader emphasis on the following major aspects:

• The scope of anti-corruption efforts is expanded to address the demand side of bribery, as demonstrated by new language regarding the need to increase awareness of bribery solicitation risks among public officials
• The possibility to have recourse to different means of resolving bribery and corruption cases, including non-trial resolutions enabling individuals and companies to settle matters by negotiating an agreement with competent authorities, thus avoiding a full trial
• The increased importance of enhancing international cooperation and facilitating mutual legal assistance procedures, to ensure direct and early coordination among competent authorities, particularly when managing multijurisdictional cases.

Concluding remarks

The Convention and the related Recommendations are commonly included among international best practices in the fight against corruption. This makes it more critical than ever for companies to adopt and effectively implement robust compliance programs. This includes ensuring proper whistleblowing channels and periodically re-assessing the corruption risk profile in case additional compliance measures are needed to mitigate bribery risks.

The tighter focus on corporate liability and non-trial resolutions also deserves additional and careful consideration, with a view to understanding how and to what extent these measures will be implemented among state parties.

DLA Piper has a wide range of experience in guiding clients in all aspects of compliance issues. Please contact the author or your regular DLA Piper attorney if you would like to know more about how we can help your business comply with anti-corruption best practices.