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  • Writer's pictureNicola Bonucci

Active and Passive Bribery 25 Years After the OECD Anti-Bribery Convention

OECD Flags

This year marks the 25th anniversary of the entry into force of the OECD Antibribery Convention. The Convention is exclusively focused on the supply side of bribery based on the recognition that, at that time, active bribery of foreign public officials was an offence only in the US and nowhere else.

 

While the Convention only addresses “active bribery”, the “demand side” had been clearly recognized by the negotiators.


Thus, Commentary n.1 to the Convention explains that the Convention does not use the terms active and passive bribery “simply to avoid it being misread by the non-technical reader as implying that the briber has taken the initiative, and the recipients is a passive victim.  In fact, in a number of situations, the recipient will have induced or pressured the briber and will have been, in that sense, the more active.”


So, where are we today?


 In 2018, an OECD Report highlighted the fact that amongst the fifty or so cases of foreign bribery between parties to the Convention that were concluded with a sanction for the bribery, only in one out of five was the bribee sanctioned too. 


In 2021, the Parties to the Convention have for the first time formally encapsulated the demand side through inclusion of a dedicated section in their 2021 Anti Bribery Recommendation.


Enforcement targeting the foreign bribery official appears to be picking up in countries like the UK (see the recent sentencing against the former top aide to Madagascar’s president), France, and the US, with the US recently adopting the Foreign Extortion Prevention Act.


Transparency International campaigns for tackling effectively what it considers to be Grand Corruption, while calls for an International Anti-Corruption Court have been relayed by some governments.


It remains that the prerogative set out in article 16.2 of the United Nations Convention Against Corruption (UNCAC) to criminalize “the solicitation or acceptance by a foreign public official” of a bribe has not been used, and the difficulties for any state other than the state of origin to prosecute a public official for acts committed in the state of origin are significative.


The rebalancing between active and passive bribery is still ongoing and will require addressing the issue in terms of supply and demand side rather than active and passive bribery, as rightly highlighted in 1999. 



International Lawyer, Former Director for Legal Affairs, OECD

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