The OECD Convention26

The OECD Convention is one of the earliest of the anti-corruption conventions and, to a large extent, is influenced by the framework of the FCPA. It targets the classic case of corruption, bribery. Article 1(1) requires the contracting states to make it a criminal offence for ‘any person intentionally to offer, promise or give any undue pecuniary or other advantage whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business’.This provision is worded sufficiently widely to include the acts of intermediaries, such as agents or brokers who may be used for offering/giving bribes or where the bribe is received by a third party such as a friend or relative of the public official’s.

The Commentaries to the OECD Convention, however, draw a distinction between facilitation payments and bribes and according to para 9 ‘[s]mall “facilitation” payments do not constitute payments made “to obtain or retain business or other improper advantage” . . . and accordingly, are also not an offence’. The expectation is that companies would use good governance within companies to discourage the use of facilitation payments. This is an unfortunate omission, and the OECD has come under constant criticism from civil society organisations, such as the TI, for introducing this distinction. To some extent, the distinction between a facilitation payment and a bribe is not that clear cut, although the common explanation given for facilitation payments is that in some countries a distinction is drawn between ‘bribes’ and ‘facilitation payments’, and that the latter is more like tips.27 Companies normally explain them away as conforming to local practices and a way of doing business by following the local norms. The value of the facilitation payments and the expectations arising from such payments may say a great deal about whether it is a bribe or not, but this by no means is conclusive. Regardless of these cultural justifications, it must be said that it would have been better for the OECD Convention not to have allowed such a distinction.

The OECD Convention focuses on the supply side of bribery – that is the offering or promising by the bribe giver – which is also known as active bribery. It does not focus on the demand or

26In the UK, the anti-corruption law was spread across two sources, common law and a number of statutes, the Public Bodies Corrupt Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916. Ratification of the OECD Convention resulted in s 108 of the Anti-Terrorism, Crime and Security Act 2001 introducing the foreign element into the common law offence of bribery and, amended s 1 of the Prevention of Corruption Act 1906, s 4(2) of the Prevention of Corruption Act 1916, and s 7 of the Public Bodies Corrupt Act 1889. In March 2003, as a result of dissatisfaction expressed by the Law Commission with the complex and obscure state of corruption law, the Home Office published a draft Corruption Bill,(hereinafter ‘the Bill’) intended to provide a comprehensive statute on corruption and repeal the common law offence

of bribery, the Public Bodies Corrupt Act 1889, parts of the Prevention of Corruption Act 1906 and s 4(2) of the Prevention of Corruption Act 1916. The Bill included a definition of ‘what acting corruptly actually means’ and based its analysis on a conception of corruption as a lack of loyalty between principal and agent. For instance, cl 3 stated that ‘a person commits an offence if he performs his functions as an agent corruptly’, and the meaning of agent is provided in cl 11. The Bill created in its first three clauses three offences – corruptly conferring an advantage, corruptly obtaining an advantage, and performing functions corruptly. See Cmnd 5777 (2003), text available at www.hmso.gov.uk. Also see Hansard Debates (HL) July 16, 2004,

col 1554. The Bill was criticised by an All Party Committee of both Houses. A consultation process was commenced in December 2005. For more on the principal-agent model, see Groenendijk, ‘A Principal Agent Model of Corruption’ (1997) 27 Crime,

Law and Social Change 207. In May 2006, Hugh Bayley, MP introduced a new Corruption Bill (Bill 185 (2005–2006) London: HMSO) under the ten minute rule. Transparency International played a substantial role in the drafting of this bill. More on this is available at www.transparency.org.uk. The Law Commission in 2007 published a consultation paper Reforming Paper (consultation Paper No 185) and the Final Report Reforming Bribery was published in November 2008 (Law Com No 313). Early in 2009 The Bribery Bill 2009 was laid before Parliament.

27Bayart, The State in Africa:The Politics of the Belly, 1993, Longman.

soliciting of bribes by the bribe taker, which is known as passive bribery. Presumably, this restrictive focus was to avoid potential problems of jurisdiction over a foreign public official.

Only bribery of foreign public officials in the context of international business transactions is the concern of the OECD Convention. ‘International business transactions’ is left undefined, although the Preamble states as follows:

Considering that bribery is a widespread phenomenon in international business transactions, including trade and investment ...

This means transactions, such as sales of goods, services, investment contracts, countertrade agreements, concession agreements, as long as there is an international dimension to them, will be construed as international business transactions.

A foreign public official, defined in Art 1(4), is sufficiently wide to include civil servants, the judiciary, Members of Parliament and those working in public undertakings.

Liability of legal persons

The OECD Convention expects contracting states to put in place measures in accordance with its legal principles as to the liability of legal persons. According to this requirement, companies will be liable for bribing a foreign public official. As to whether Art 2 will achieve its intended purpose is highly debatable since the approach to establish fault on the part of the legal persons is not uniform even across common law jurisdictions. Since companies do not have the two characteristics possessed by natural persons (mind and body), attributing fault to them was difficult. Lennard’s Carrying Co Ltd v Asiatic Petroleum Co28 resolved these difficulties by proposing the ‘directing mind’ principle, which seeks the active and directing will of the company ‘in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre or the personality of the corporation’.29 Among the common law jurisdictions that have adopted this principle, the approach ranges from the narrow (e.g., the UK)30 to the more expansive (e.g., Canada)31 where the directing mind is found further down the command chain. By contrast, the US does not focus on the mental element and, instead, finds the company liable for the acts of its employees, be they directors or managers, as long as they act within the scope of their employment.32 There is a lot to commend in the US approach, since modern methods of company management means that decisions are dispersed across the organisation and at different levels.

Sanctions

The OECD Convention does not provide any guidelines on levels or types of sanctions but leaves it open to the states to adopt effective, proportionate and dissuasive criminal penalties in Art 3. This applies equally to legal persons, unless criminal responsibility against legal persons is not possible in the state concerned, in which case it needs to adopt effective, proportionate and dissuasive noncriminal sanctions, including monetary sanctions. Article 3 also requires parties to have provisions on seizure and confiscation of the proceeds in place.

28[1915] AC 502.

29At 713.

30Tesco Supermarkets v Natrass [1972] AC 153 where it was held that a manager could not be a directing mind.

31Canadian Dredge & Dock Ltd v The Queen (1985) 19 CCC (3d) 1 SCC.

32See Wells, Corporations and Criminal Liability, 1993, Clarendon Press.

Enforcement

Article 5 of the OECD Convention recognises prosecutorial discretion of the national regime. However, the article goes on to state that ‘they shall be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved’. At first glance, it seems to be an unproblematic provision, but it has been the subject of some discussion as a result of the SFO’s decision to drop the investigation into the alleged false accounting by BAE in its arms deals with Saudi Arabia. The need to safeguard national was given as the reason to discontinue the investigation, and the SFO stated that ‘no weight had been given to the commercial interests or national economic interests’.33 This dropping of the investigation caused a huge uproar, national and international. Among those shocked at the UK decision were the OECD, TI, other non-governmental organisations, such as Campaign Against Arms Trade and Corner House. The question was ‘Did Art 5 exclude national security?’. The answer that reverberated from these organisations was that it did not. According to them, in ratifying an international convention, a state agrees to meet its international legal obligation by complying with that convention, and the UK was not meeting this fundamental obligation. It is, however, highly debatable whether Art 5 does include national security.34 Under international law, a state can invoke ‘necessity’ as a defence. It is recognised in customary international law.35 Although necessity was associated with self-preservation historically, in modern times, this concept has been construed widely to include essential interest of a state. Recent cases in the International Court of Justice suggest that necessity as a defence can be raised in other situations – for instance, ecological threat, as in Gabcikova-Nagymoros.36 This wider conception of necessity is also embodied in Art 25 of the International Law Commission’s37 Articles on Responsibility of States for Wrongful Acts,38 which states:

(1)Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:

(a)Is the only way for the State to safeguard an essential interest39 against a grave and imminent peril; and

(b)Does not seriously impair an essential interest of the State or States toward which the obligation exists, or of the international community as a whole.

(2)In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:

(a)The international obligation in question excludes the possibility of invoking necessity; or

(b)The State has contributed to the situation of necessity.40

33SFO Press Statement, December 14, 2006, available at www.sfo.gov.uk.

34For opposing points of view, see Rose-Ackerman and Billa ‘Treaties and National Security’Yale and Economics Research Paper 351 and Carr & Outhwaite ‘The OECD Convention Ten Years On’ 2008 5(1) MJIEL 3.

35See Gabcikova-Nagymoros ICJ Reports 1997 (25 September 2007).

36Ibid.

37This Commission was established by the United Nations General Assembly in 1948 (G.A.Res.174(II) of 21 November 1997. Its mandate is to encourage the codification of international law. One of its well known treaties is the Vienna Convention on the Law of Treaties (1969).

38For an extensive commentary, see Crawford. The International Law Commission’s Articles on State Responsibility: Introduction,Text and Commentaries

(Cambridge University Press: Cambridge, 2002).

39No definition of essential interest is provided. See Addendum to the Eighth Report on State Responsibility by Robert Ago for examples of essential interest (UN Doc. A/CN.4/SER.A/1980/Add.1 (Part 2), para. 15).

40Responsibility of States for Internationally Wrongful Acts, text adopted by the Commission at its fifty-third session, 2001.

Article 5, as it stands is certainly unsatisfactory, and it is time that the OECD revisited this provision. This is all the more important since the Convention seems to have made a major impact in changing the laws in contracting states because of the peer review monitoring system that is carried out in two stages, Phase I and Phase II, whereby the laws and practices in each contracting state are examined with a view to seeing what further action needs to be taken by the ratifying state for effective implementation and enforcement of the OECD Convention.

Other provisions

A number of related issues that could expose or prevent corruption are also included. Article 8 on accounting requires parties to have laws and regulations that bring about meaningful harmonisation with international accounting and auditing standards. It also prohibits the use of off-the-books accounts, recording of non-existent expenditures, which are normally used in practice to hide illegal payments and receipts. Suitable sanctions for falsification and omissions are also a part of the requirement under Art 8.

Money laundering is another aspect that is addressed in Art 7. States that have made bribery of a public official a predicate offence for the application of its money laundering legislation are required to extend it to apply to bribery of a foreign public official.

The success of the OECD Convention, or for that matter any convention, is dependant on successful implementation. In this, it excels in having an enviable monitoring system in place. Regardless, it is clear that this Convention suffers from a number of shortcomings. Among them, the confusion caused by the distinction between facilitation payments and bribes, lack of clarity in Art 5 and the lack of guidelines to establish fault on the part of legal persons.

The OECD and the UK Bribery Act 201041

The UK is a party to the OECD Convention and recently enacted its Bribery Act 2010 (BA). Before this Act, as with other areas of English law, the law relating to corruption was dispersed among common law and statute law. Apart from the common law offence of bribery, the offences of corruption were created by the Prevention of Corruption Acts 1889-1916 and Part 12 of the Anti-Terrorism, Crime and Security Act 2001 (ATCSA). The focus of the common law offence of bribery and the 1889 Act was the public sector, whereas the 1906 Act focused on public and private sector corruption and dealt with corruption by agents. Since it was unclear whether the existing offences covered corruption involving foreign public officials, Part 12 of ATCSA was enacted to ensure that the UK met with its implementation obligations as a result of ratifying the OECD Convention, thus imparting jurisdiction over corruption of foreign public office officials. However, the OECD, which, as stated earlier, operates a peer review system to monitor the implementation of its Convention, had consistently raised a number of criticisms in its Reports.42 These included the way the anti-corruption laws were spread across statutes and common law, the low number of prosecutions and the unsuitability of the ‘directing mind’ principle for establishing

41Parts of this section are derived from Carr ‘Development, Business Integrity and the UK Bribery Act’ in Horder & Alldridge (eds)

Modern Bribery Law 2013, CUP.

42See for instance OECD ‘United Kingdom: Phase 2 bis Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and 1997 Recommendation on Combating Bribery in International Business Transactions’, available at http://www.oecd.org/dataoecd/23/20/41515077.pdf.

liability of legal persons.43 Recommendations were made for reform, and these took on an energetic tone when, on grounds of national security, the Serious Fraud Office (SFO) dropped its investigation into the allegation of bribery by British Aerospace (BAE) in the al-Yamamah arms deal with Saudi Arabia. It was widely felt that the decision to drop the investigation, albeit on grounds of national security, showed a reluctance on the part of the UK to take corruption seriously.This also strengthened the widely-held view that the UK was unwilling to prosecute, despite its ratification of the Anti-Bribery Convention. Under intense pressure from the OECD and the international community, the BA was enacted in 2010.44

The BA created two general offences of bribery. Section 1 criminalises the supply side of bribery (‘active bribery’), and s2 criminalises the demand side (‘passive bribery’). Since businesses are the suppliers of bribe, s 1 is of great relevance. According to this section, the offering, promising or giving of a financial or other advantage by a person (P) to another is an offence where:

•‘P intends the advantage to induce a person to perform improperly a relevant function or activity’ (s 1(2)(a));

•‘P intends to reward a person for the improper performance of such a function or activity’ (s 1(2)(b)); or

•‘P knows or believes that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity’ (s 1(3)(c)).

Sections 6 and 7 deal with business bribery. Section 6 relates, specifically, to bribery of a foreign public official. A person (P) who bribes such a foreign official (F) would have committed an offence, provided it was P’s intention to influence F in F’s capacity as a foreign public official and P intended to obtain or retain business or an advantage in the conduct of business.45 However, for the purposes of section 6, P’s offers, promises or the giving of a financial advantage will be regarded as a bribe only if the written law applicable to F does not permit or require F to be influenced by the offer, promise or gift.This might not be difficult to establish given the level of harmonisation due to the near global ratification of the UNCAC, subject to the proviso that there has been effective implementation of this Convention by the ratifying state. The UNCAC,46 in its Article 15, requires state parties to make passive bribery when committed intentionally a criminal offence. Passive bribery as envisaged in Article 15(b) is ‘the solicitation or acceptance by a public official, directly or indirectly,

43This is the principle of the active and directing will of the company ‘in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre or the personality

of the corporation’ (Lennards’ Carrying Co Ltd v Asiatic Petroleum Company [1915] AC 502). This principle, which has been adopted by a number of common law jurisdictions, has been variously applied, ranging from the narrow to the wide. The English courts have adopted a narrow application, meaning that the act of person lower down the command structure of a company will not be viewed as the act of a directing mind. To illustrate in Tesco Supermarkets v Natrass [1972] AC 153, it was held that a manager could not be a directing mind. A wider application would find the directing mind further down the command chain (e.g., the Canadian case as illustrated by Canadian Dredge & Dock Ltd v The Queen (1985) 19 CCC (3d) 1SCC). For further on this, see C Wells

Corporations and Criminal Liability, 1993, Oxford: Clarendon Press.

442010 Chapter 23. London: The Stationery Office Ltd. It received royal assent on 8 April 2010. It abolishes the common law offences of bribery and embracery in the law of England, Wales and Northern Ireland (s. 17(1)) and the offences of bribery and accepting a bribe in Scotland (s. 17(2)). It also repeals the Public Bodies Corrupt Practices Act 1889, Prevention of Corruption Act 1906, Prevention of Corruption Act 1916 and ss 108 – 110 of ATCSA. It must also be added that there had been other attempts to pass legislation on corruption.

45As opposed to s 1, which is directed at ‘improper performance’, the s 6 offence is aimed at influencing decision-making. The scope of ‘improper performance’ is to be gathered from ss 3, 4 and 5 and briefly ‘amounts to a breach of an expectation that a person will act in good faith, impartially or in accordance with a position of trust’. (Para 18 Guidance).

46For more on the UNCAC, see below.

of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties’.

Section 7 creates a new offence of failure of a commercial organisation to prevent bribery.47 This has the potential to improve business integrity within organisations. According to ss 7(1) and (3), a commercial organisation (C) is guilty if a person (A) associated with C bribes another person intending to (a) obtain or retain business for C or (b) obtain or retain an advantage in the conduct of business for C as long as A is or would be guilty of bribery under sections 1 or 6 of the BA. However, the Act also imparts a defence in s 7(2) to the commercial organisation to prove that it ‘has in place adequate procedures designed to prevent persons associated with it from undertaking such conduct’.The phrase ‘commercial organisation’ is widely defined in section 7(5), and the central feature is ‘carrying on business’ in the UK.48 Circumstances will determine whether a particular commercial organisation is carrying on business in the UK or not. Whether ‘a body or partnership is carrying on business will be answered by applying a common sense approach’, according the Guidance.49 The Guidance also provides some examples that indicate that mere trading on the London Stock Exchange is insufficient to say that a company is carrying on business in the UK. Other factors are likely to be relevant, such as whether the company has an office or employees in the UK.

Section 7 also makes a company liable for the acts of persons associated with it.The meaning of ‘persons associated with’ is provided in s 8 to include an employee, agent or subsidiary.To establish whether A performs on behalf of C, all relevant circumstances are to be taken into account, not just the nature of the relationship between A and C. Where A is an employee of C, the presumption is that A, as employee of C, performs services for or on behalf of C, unless the contrary can be shown. The definition, however, has its limitations. Sub-contractors within a supply chain (third parties) who have no contact with C would not be regarded as persons associated with C since C is unlikely to be in a position to exercise control over them or even know their identity. The Guidance does highlight this issue and suggests that ‘[t]he principal way in which commercial organisation may decide to approach bribery risks which arise as a result of a supply chain is by employing the types of anti-bribery procedures referred to elsewhere in this guidance (e.g., risk-based due diligence and the use of anti-bribery terms and conditions) in the relationship with their contractual party, and by requesting that counterparty adopt a similar approach with the next party in the chain.’50 However, such a device is unlikely to be effective. There is no way that C can ensure, apart from a

47This offence perhaps does not really address the OECD recommendation to extend the narrow principle of ‘directing mind’. However, the Law Commission recommendation that ‘the extension of the scope for imposing direct liability on companies should form part of a general review of corporate liability’. (para. 6.39). In support, they cited the Council of HM Circuit Judges, which said that: ‘We agree that this should be seen as part of a much larger review of corporate liability for criminal offences. The topic is potentially difficult and the consequences far reaching . . . Thus we agree that consideration of the law relating to direct liability of legal persons (incorporated and unincorporated bodies) should be deferred until the Law Commission’s wider review of this area’. (para 6.29, Law Commission, Reforming Bribery Law, Law Com. No. 313, London: The Stationery Office, 2008)

48‘Relevant commercial organisation’ is defined in s. 7(5) as:

(a)‘a body which is incorporated under the law of any part of the United Kingdom and which carries on a business (whether there or elsewhere),

(b)any other body corporate (wherever incorporated) which carries on a business, or part of a business, in any part of the United Kingdom,

(c)a partnership which is formed under the law of any part of the United Kingdom and which carries on a business (whether there or elsewhere), or

(d)any other partnership (wherever formed) which carries on a business, or part of a business, in any part of the United Kingdom, and, for the purposes of this section, a trade or profession is a business’.

49Guidance about Procedures which Relevant Commercial Organisations can Put into Place by Persons Associated with the From Bribing. para. 35. Available at http://www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf. This Guidance document was published by the Secretary of State for Justice as a result of s 9 BA, which requires the Secretary of State to publish guidance about procedures thast commercial organisations can put in place to prevent persons associated with them from bribing.

50Guidance, para. 39.

contractual clause, that sub-contractors further down the supply chain are going to include such clauses and will be bound by the clause. At some point, the anti-bribery contractual clause chain is likely to be breached, especially where the counterparty is working with sub-contractors in a country with endemic corruption. Many of the sub-contractors are also likely to be small to medium enterprises, and they may find it difficult to resist the demands for bribes in states with a highly corrupt public sector. In the current climate of global recession, resistance on the part of businesses may not meet the desired value-driven expectations.

As stated earlier, the OECD had previously criticised the rather limited approach to corporate liability through the use of directing mind principle, and, in its most recent document,51 it has noted that the earlier criticisms in relation to this principle and the identification theory adopted by the UK in respect of corporate liability applies equally to the BA. Although the BA has not directly said anything about the directing mind principle, it must be emphasised that the BA has widened corporate liability for its purposes. Section 7(1) makes C liable where an associated person bribes with the intention of obtaining or retaining business for C or to obtain or retain an advantage in the conduct of business for C. The provision defining ‘associated person’ does not make any reference to the status of an employee within C. Further, s 8(5) states that ‘if A is an employee of C it to be presumed unless the contrary is shown that A is a person who performs services for or on behalf of C’. Although it is correct that the UK did not take the opportunity to visit the directing mind principle when drafting the BA, despite OECD’s recommendations, it has certainly relaxed the grip on the principle in the context of bribery in its s 7.52

As stated earlier, s 7(2) does allow a defence of having adequate procedures in place to prevent associated person from engaging in corrupt activities.The question of what procedures are to be in place is addressed in s 9, indicating that the Secretary of State will publish guidance and the guidance may be revised periodically. The current Guidance sets out six principles:

Principle 1 titled ‘Proportionate Procedures’ sets out that ‘[a] commercial organisation’s procedures to prevent bribery by persons associated with it are proportionate to the risks it faces and to the nature, scale and complexity of the commercial organisation’s activities. They are also clear, practical, accessible, effectively implemented and enforced’;

Principle 2 titled ‘Top-Level Commitment’ sets out that ‘[t]op level management in a commercial organisation (be it board of directors, the owners of any other equivalent body or person) are committed to preventing bribery by person associated with it. They foster a culture within the organisation in which bribery is never acceptable’;

Principle 3 entitled ‘Risk Assessment’ sets out that ‘[t]he commercial organisation assesses the nature and extent of its exposure to potential external and internal risks of bribery on its behalf by persons associated with it. The assessment is periodic, informed and documented’;

Principle 4 entitled ‘Due Diligence’ sets out that ‘[t]he commercial organisation applies due diligence procedures, taking a proportionate and risk based approach, in respect of persons who perform or will perform services on behalf of the organisation, in order to mitigate identi- fi ed bribery risks’;

51See OECD “United Kingdom: Phase 1 ter Report on the Application of the Convention on Combating Bribery of Foreign Officials in International Business Transactions and the 2009 Revised Recommendation on Combating Bribery in International Business Transactions” para 37, available at http://www.oecd.org/dataoecd/58/43/46883138.pdf.

52It will be interesting to see the Phase 3 Report of the OECD Working Group, which is expected to be published during 2013.

Principle 5 entitled ‘Communication (including Training)’ sets out that ‘[t]hat the commercial organisation seeks to ensure that bribery prevention policies and procedures are embedded and understood throughout the organisation through external and internal communication, including training, that is proportionate to the risks it faces’; and

Principle 6 entitled ‘Monitoring and Review’ sets out [t]hat the commercial organisation monitors and reviews procedures designed to prevent bribery by persons associated with it and make improvements where necessary’.

The approach taken by the BA to business integrity is open to criticism. Why give a defence to commercial organisations in s 7(2) at all? Admittedly, criminal law has the advantage of bringing about changes in behaviour or deterring persons from behaving in a certain manner because of the punishments associated with an offence. However, its success is dependent on enforcement and, in a clandestine activity, such as bribery, the level of enforcement is likely to be low. So, providing a defence of having adequate procedures in s 7(2) should, in practice, result in organisations reflecting on their policies and practices and embedding them within the psyche of their organisations and of those they deal with. This is a gentle approach, but it is far better than using criminal law to its full extent. As the Guidance notes, the objective of the BA:

is not to bring the full force of the criminal law to bear upon well run organisations that experience an isolated incident of bribery on their behalf. So in order to achieve an appropriate balance, section 7 provides a full defence. This is in recognition of the fact that no bribery preventing regime will be capable of preventing bribery at all times. However, the defence is also included in order to encourage commercial organisations to put procedures in place to prevent bribery by persons associated with them.53

Many of the larger companies already have well-developed codes in place for issues such as labour and the protection of the environment, as part of their corporate social responsibility (CSR) drive, and they would be able to easily incorporate anti-bribery policies and procedures within their CSR remit.

The generality of the Guidance also raises questions. Instead of indicating in broad terms the areas to be addressed, could it not have been more specific? Could it have indicated clearly what a sole trader needs to put in place as opposed to a small to medium enterprise or a multinational? Such an approach, even if it would have been feasible, would have created a rigidity and made a number of assumptions that would not have applied to a particular organisation. As the Guidance itself states, the question of procedures is led by the context in which an organisation operates. So, for an organisation that deals with New Zealand only, one of the least corrupt countries, it is unlikely their risk assessment procedures are to be as extensive as those of an organisation engaging in business in India.

The Guidance, in its Appendix A, provides a number of case studies that may be of help to all organisations, including small and medium organisations. However, these are illustrative, and, as the Guidance itself states, they are not to be seen as ‘standard setting’. Recently, the British Standards (BSI) published its Anti-Bribery Management System (ABMS)54. It came into effect on 30 November 2011 and is designed for all sectors, private, pubic and voluntary, to implement anti-bribery policies.

53Guidance, para. 11.

54BS 10500 – 2011. For more on BSI, visit http://bsigroup.com.