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EXTRADITION (BRIBERY OF FOREIGN PUBLIC OFFICIALS) REGULATIONS 1999 1999 NO. 284 - SCHEDULE 1
Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
(regulation 3)
CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS
IN INTERNATIONAL BUSINESS TRANSACTIONS
Preamble
The Parties,
Considering
that bribery is a widespread phenomenon in international business
transactions, including trade and investment, which raises serious moral and
political concerns, undermines good governance and economic development, and
distorts international competitive conditions;
Considering that all countries
share a responsibility to combat bribery in international business
transactions;
Having regard to the Revised Recommendation on Combating
Bribery in International Business Transactions, adopted by the Council of the
Organisation for Economic Co-operation and Development (OECD) on 23 May 1997,
C(97)123/FINAL, which, inter alia , called for effective measures to deter,
prevent and combat the bribery of foreign public officials in connection with
international business transactions, in particular the prompt criminalisation
of such bribery in an effective and coordinated manner and in conformity with
the agreed common elements set out in that Recommendation and with the
jurisdictional and other basic legal principles of each country;
Welcoming
other recent developments which further advance international understanding
and co-operation in combating bribery of public officials, including actions
of the United Nations, the World Bank, the International Monetary Fund, the
World Trade Organization, the Organization of American States, the Council of
Europe and the European Union;
Welcoming the efforts of companies, business
organisations and trade unions as well as other non-governmental organisations
to combat bribery;
Recognising the role of governments in the prevention of
solicitation of bribes from individuals and enterprises in international
business transactions;
Recognising that achieving progress in this field
requires not only efforts on a national level but also multilateral
cooperation, monitoring and follow-up;
Recognising that achieving equivalence
among the measures to be taken by the Parties is an essential object and
purpose of the Convention, which requires that the Convention be ratified
without derogations affecting this equivalence;
Have agreed as follows:
Article 1
The Offence of Bribery of Foreign Public Officials
1. Each Party
shall take such measures as may be necessary to establish that it is a
criminal offence under its law 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.
2. Each
Party shall take any measures necessary to establish that complicity in,
including incitement, aiding and abetting, or authorisation of an act of
bribery of a foreign public official shall be a criminal offence. Attempt and
conspiracy to bribe a foreign public official shall be criminal offences to
the same extent as attempt and conspiracy to bribe a public official of that
Party.
3. The offences set out in paragraphs 1 and 2 above are hereinafter
referred to as "bribery of a foreign public official".
4. For the purpose of
this Convention:
a. "foreign public official" means any person holding a
legislative, administrative or judicial office of a foreign country, whether
appointed or elected; any person exercising a public function for a foreign
country, including for a public agency or public enterprise; and any official
or agent of a public international organisation;
b. "foreign country"
includes all levels and subdivisions of government, from national to local;
c. "act or refrain from acting in relation to the performance of official
duties" includes any use of the public official's position, whether or not
within the official's authorised competence.
Article 2
Responsibility of
Legal Persons
Each Party shall take such measures as may be necessary, in
accordance with its legal principles, to establish the liability of legal
persons for the bribery of a foreign public official.
Article 3
Sanctions
1. The bribery of a foreign public official shall be punishable by effective,
proportionate and dissuasive criminal penalties. The range of penalties shall
be comparable to that applicable to the bribery of the Party's own public
officials and shall, in the case of natural persons, include deprivation of
liberty sufficient to enable effective mutual legal assistance and
extradition.
2. In the event that, under the legal system of a Party,
criminal responsibility is not applicable to legal persons, that Party shall
ensure that legal persons shall be subject to effective, proportionate and
dissuasive non-criminal sanctions, including monetary sanctions, for bribery
of foreign public officials.
3. Each Party shall take such measures as may be
necessary to provide that the bribe and the proceeds of the bribery of a
foreign public official, or property the value of which corresponds to that of
such proceeds, are subject to seizure and confiscation or that monetary
sanctions of comparable effect are applicable.
4. Each Party shall consider
the imposition of additional civil or administrative sanctions upon a person
subject to sanctions for the bribery of a foreign public official.
Article 4
Jurisdiction
1. Each Party shall take such measures as may be necessary to
establish its jurisdiction over the bribery of a foreign public official when
the offence is committed in whole or in part in its territory.
2. Each Party
which has jurisdiction to prosecute its nationals for offences committed
abroad shall take such measures as may be necessary to establish its
jurisdiction to do so in respect of the bribery of a foreign public official,
according to the same principles.
3. When more than one Party has
jurisdiction over an alleged offence described in this Convention, the Parties
involved shall, at the request of one of them, consult with a view to
determining the most appropriate jurisdiction for prosecution.
4. Each Party
shall review whether its current basis for jurisdiction is effective in the
fight against the bribery of foreign public officials and, if it is not, shall
take remedial steps.
Article 5
Enforcement
Investigation and prosecution of
the bribery of a foreign public official shall be subject to the applicable
rules and principles of each Party. They shall not 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.
Article 6
Statute of Limitations
Any statute of limitations
applicable to the offence of bribery of a foreign public official shall allow
an adequate period of time for the investigation and prosecution of this
offence.
Article 7
Money Laundering
Each Party which has made bribery of
its own public official a predicate offence for the purpose of the application
of its money laundering legislation shall do so on the same terms for the
bribery of a foreign public official, without regard to the place where the
bribery occurred.
Article 8
Accounting
1. In order to combat bribery of
foreign public officials effectively, each Party shall take such measures as
may be necessary, within the framework of its laws and regulations regarding
the maintenance of books and records, financial statement disclosures, and
accounting and auditing standards, to prohibit the establishment of
off-the-books accounts, the making of off-the-books or inadequately identified
transactions, the recording of non-existent expenditures, the entry of
liabilities with incorrect identification of their object, as well as the use
of false documents, by companies subject to those laws and regulations, for
the purpose of bribing foreign public officials or of hiding such bribery.
2.
Each Party shall provide effective, proportionate and dissuasive civil,
administrative or criminal penalties for such omissions and falsifications in
respect of the books, records, accounts and financial statements of such
companies.
Article 9
Mutual Legal Assistance
1. Each Party shall, to the
fullest extent possible under its laws and relevant treaties and arrangements,
provide prompt and effective legal assistance to another Party for the purpose
of criminal investigations and proceedings brought by a Party concerning
offences within the scope of this Convention and for non-criminal proceedings
within the scope of this Convention brought by a Party against a legal person.
The requested Party shall inform the requesting Party, without delay, of any
additional information or documents needed to support the request for
assistance and, where requested, of the status and outcome of the request for
assistance.
2. Where a Party makes mutual legal assistance conditional upon
the existence of dual criminality, dual criminality shall be deemed to exist
if the offence for which the assistance is sought is within the scope of this
Convention.
3. A Party shall not decline to render mutual legal assistance
for criminal matters within the scope of this Convention on the ground of bank
secrecy.
Article 10
Extradition
1. Bribery of a foreign public official
shall be deemed to be included as an extraditable offence under the laws of
the Parties and the extradition treaties between them.
2. If a Party which
makes extradition conditional on the existence of an extradition treaty
receives a request for extradition from another Party with which it has no
extradition treaty, it may consider this Convention to be the legal basis for
extradition in respect of the offence of bribery of a foreign public official.
3. Each Party shall take any measures necessary to assure either that it can
extradite its nationals or that it can prosecute its nationals for the offence
of bribery of a foreign public official. A Party which declines a request to
extradite a person for bribery of a foreign public official solely on the
ground that the person is its national shall submit the case to its competent
authorities for the purpose of prosecution.
4. Extradition for bribery of a
foreign public official is subject to the conditions set out in the domestic
law and applicable treaties and arrangements of each Party. Where a Party
makes extradition conditional upon the existence of dual criminality, that
condition shall be deemed to be fulfilled if the offence for which extradition
is sought is within the scope of Article 1 of this Convention.
Article 11
Responsible Authorities
For the purposes of Article 4, paragraph 3, on
consultation, Article 9, on mutual legal assistance and Article 10, on
extradition, each Party shall notify to the Secretary-General of the OECD an
authority or authorities responsible for making and receiving requests, which
shall serve as channel of communication for these matters for that Party,
without prejudice to other arrangements between Parties.
Article 12
Monitoring and Follow-up
The Parties shall co-operate in carrying out a
programme of systematic follow-up to monitor and promote the full
implementation of this Convention. Unless otherwise decided by consensus of
the Parties, this shall be done in the framework of the OECD Working Group on
Bribery in International Business Transactions and according to its terms of
reference, or within the framework and terms of reference of any successor to
its functions, and Parties shall bear the costs of the programme in accordance
with the rules applicable to that body.
Article 13
Signature and Accession
1. Until its entry into force, this Convention shall be open for signature by
OECD members and by non-members which have been invited to become full
participants in its Working Group on Bribery in International Business
Transactions.
2. Subsequent to its entry into force, this Convention shall be
open to accession by any non-signatory which is a member of the OECD or has
become a full participant in the Working Group on Bribery in International
Business Transactions or any successor to its functions. For each such
non-signatory, the Convention shall enter into force on the sixtieth day
following the date of deposit of its instrument of accession.
Article 14
Ratification and Depositary
1. This Convention is subject to acceptance,
approval or ratification by the Signatories, in accordance with their
respective laws.
2. Instruments of acceptance, approval, ratification or
accession shall be deposited with the Secretary-General of the OECD, who shall
serve as Depositary of this Convention.
Article 15
Entry into Force
1. This
Convention shall enter into force on the sixtieth day following the date upon
which five of the ten countries which have the ten largest export shares set
out in DAFFE/IME/BR(97)18/FINAL (annexed), and which represent by themselves
at least sixty percent of the combined total exports of those ten countries,
have deposited their instruments of acceptance, approval, or ratification. For
each signatory depositing its instrument after such entry into force, the
Convention shall enter into force on the sixtieth day after deposit of its
instrument.
2. If, after 31 December 1998, the Convention has not entered
into force under paragraph 1 above, any signatory which has deposited its
instrument of acceptance, approval or ratification may declare in writing to
the Depositary its readiness to accept entry into force of this Convention
under this paragraph 2. The Convention shall enter into force for such a
signatory on the sixtieth day following the date upon which such declarations
have been deposited by at least two signatories. For each signatory depositing
its declaration after such entry into force, the Convention shall enter into
force on the sixtieth day following the date of deposit.
Article 16
Amendment
Any Party may propose the amendment of this Convention. A proposed
amendment shall be submitted to the Depositary which shall communicate it to
the other Parties at least sixty days before convening a meeting of the
Parties to consider the proposed amendment. An amendment adopted by consensus
of the Parties, or by such other means as the Parties may determine by
consensus, shall enter into force sixty days after the deposit of an
instrument of ratification, acceptance or approval by all of the Parties, or
in such other circumstances as may be specified by the Parties at the time of
adoption of the amendment.
Article 17
Withdrawal
A Party may withdraw from
this Convention by submitting written notification to the Depositary. Such
withdrawal shall be effective one year after the date of the receipt of the
notification. After withdrawal, co-operation shall continue between the
Parties and the Party which has withdrawn on all requests for assistance and
extradition made before the effective date of withdrawal which remain pending.
[Signatures not reproduced here.]
ANNEX
DAFFE/IME/BR(97)18/FINAL
STATISTICS
ON OECD EXPORTS OECD EXPORTS
|
| 1990-1996
| 1990-1996
| 1990-1996
|
| US$
million
| % of total OECD
| % of 10 largest
|
|
|
|
|
United States
| 287
118
| 15,9%
| 19,7%
|
Germany
| 254 746
| 14,1%
| 17,5%
|
Japan
| 212
665
| 11,8%
| 14,6%
|
France
| 138 471
| 7,7%
| 9,5%
|
United Kingdom
|
121 258
| 6,7%
| 8,3%
|
Italy
| 112 449
| 6,2%
| 7,7%
|
Canada
| 91 215
| 5,1%
| 6,3%
|
Korea (1)
| 81 364
| 4,5%
| 5,6%
|
Netherlands
| 81 264
|
4,5%
| 5,6%
|
Belgium-Luxembourg
| 78 598
| 4,4%
| 5,4%
|
Total 10 largest
| 1 459 148
| 81,0%
| 100%
|
|
|
|
|
Spain
| 42 469
| 2,4%
|
|
Switzerland
| 40
395
| 2,2%
|
|
Sweden
| 36 710
| 2,0%
|
|
Mexico (1)
| 34 233
| 1,9%
|
|
Australia
| 27 194
| 1,5%
|
|
Denmark
| 24 145
| 1,3%
|
|
Austria*
| 22 432
| 1,2%
|
|
Norway
| 21 666
| 1,2%
|
|
Ireland
| 19 217
| 1,1%
|
|
Finland
| 17
296
| 1,0%
|
|
Poland (1)**
| 12 652
| 0,7%
|
|
Portugal
| 10 801
| 0,6%
|
|
Turkey*
| 8 027
| 0,4%
|
|
Hungary**
| 6 795
| 0,4%
|
|
New Zealand
| 6 663
| 0,4%
|
|
Czech Republic***
| 6 263
| 0,3%
|
|
Greece*
| 4 606
| 0,3%
|
|
Iceland
| 949
| 0,1%
|
|
TOTAL OECD
| 1 801 661
| 100%
|
|
Notes: *
1990-1995; ** 1991-1996; *** 1993-1996
Source: OECD, (1) IMF.
Concerning
Belgium-Luxembourg: Trade statistics for Belgium and Luxembourg are available
only on a combined basis for the two countries. For purposes of Article 15,
paragraph 1 of the Convention, if either Belgium or Luxembourg deposits its
instrument of acceptance, approval or ratification, or if both Belgium and
Luxembourg deposit their instruments of acceptance, approval or ratification,
it shall be considered that one of the countries which have the ten largest
exports shares has deposited its instrument and the joint exports of both
countries will be counted towards the 60 percent of combined total exports of
those ten countries, which is required for entry into force under this
provision.
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