* Chistopher K. Carlberg is an Executive Editor of the Boston College International & Comparative Law Review .
1 See Andrea Goldbarg, Note, The Foreign Corrupt Practices Act and Structural Corruption, 18 B.U. Int’l L.J. 273, 274 (2000); The World Bank Group, Anti-Corruption Knowledge Center: Helping Countries Reduce Corruption, at http://www1.worldbank.org/ publicsector/anticorrupt/helping.htm (last visited Nov. 6, 2002).
2 See Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related Documents, Dec. 17, 1997, pmbl. [hereinafter OECD Convention]; see generally The World Bank Group, supra note 1; S. Rep. No. 105–277, at 2 (1998), available at http://www.usdoj.gov/criminal/fraud/fcpa/senate1.htm (last visited Nov. 6, 2002) [hereinafter Senate Report].
3 See Wayne Hamra, Bribery in International Business Transactions and the OECD Convention: Benefits and Limitations, Bus. Econ., Oct. 1, 2000, available at 2000 WL 15294332; see generally Doing Well by Doing Good, The Economist, Apr. 22, 2000 (U.S. ed.), available at 2000 WL 8141686.
4 Lisa Miller, Note, No More “This For That”? The Effect of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 8 Cardozo J. Int’l & Comp. L. 139, 140 (2000).
5 A number of other international organizations are also involved in the effort to curb international bribery, including the United Nations, the World Bank, the International Monetary Fund, the International Chamber of Commerce, the World Trade Organization, the Organization of American States, the Council of Europe and the European Union. See OECD Convention, supra note 2, at pmbl.; Alejandro Posadas, Combating Corruption Under International Law, 10 Duke J. Comp. & Int’l L. 345, 346 (2000).
6 Organisation for Economic Co-Operation and Development, About OECD, at http://www.oecd.org/EN/about/0,,EN-about-0-nodirectorate-no-no-no-0,00.html (last visited Nov. 6, 2002) [hereinafter About OECD].
7 See Organisation for Economic Co-Operation and Development, OECD, Member countries, at http://www.oecd.org/oecd/EN/countrylist/0,,EN-countrylist-0-nodi-rectorate-no-no-159–0,00.html (last visited Nov. 6, 2002) [hereinafter OECD Member countries].
8 See Organisation for Economic Co-Operation and Development, History of the OECD, at http://www.oecd.org/EN/document/0,,EN-document-0-nodirectorate-no21–9347–0,00.html (last visited Nov. 6, 2002) [hereinafter History of the OECD].
9 See OECD Convention, supra note 2, at pmbl.
10 See Goldbarg, supra note 1, at 276.
11 See id.; Posadas, supra note 5, at 348–50.
12 See Goldbarg, supra note 1, at 276. In a particularly egregious case, Lockheed’s Vice-Chairman admitted at a congressional hearing that the company had paid $1.1 million to a “high government official of the Netherlands,” who was later discovered to be Prince Bernhard, the husband of Queen Juliana. See Posadas, supra note 5, at 364.
13 Id.; Kari Lynn Diersen, Foreign Corrupt Practices Act, 36 Am. Crim. L. Rev. 753, 755–56 (1999).
14 See Goldbarg, supra note 1, at 276; Diersen, supra note 13, at 755–56.
15 See Goldbarg, supra note 1, at 276; Diersen, supra note 13, at 758.
16 Senate Report, supra note 2, at 2; see Goldbarg, supra note 1, at 278.
17 Senate Report, supra note 2, at 2.
18 Miller, supra note 4, at 139.
19 Id.; Organisation for Economic Co-Operation and Development, Fighting Bribery and Corruption: OECD Convention, at http://www.oecd.org/EN/about/ 0,,EN-about-86-nodirectorate-no-no-no-31,00.html (last visited Nov. 8, 2002) [hereinafter Fighting Bribery and Corruption]. The twenty-nine member countries signing the Convention included: Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, The Netherlands, New Zealand, Norway, Poland, Portugal, The Slovak Republic, Spain, Sweden, Switzerland, Turkey, United Kingdom, and the United States. The five non-member countries signing the convention were Argentina, Brazil, Bulgaria, Chile, and Slovenia.
20 Miller, supra note 4, at 139–40; see Fighting Bribery and Corruption, supra note 19.
21 See Miller, supra note 4, at 139; Organisation for Economic Co-Operation and Development, About International Initiatives, at http://www.oecd.org/oecd/pages/ home/displaygeneral/0,3380,EN-about-87-nodirectorate-no-no-no-31,FF.html (last visited Nov. 8, 2002) [hereinafter International Initiatives]; Organisation for Economic Co-Operation and Development, global iniatitves, http://www.oecd.org/oecd/ pages/home/displaygeneral/0,3380,EN-document-87-nodirectorate-no-no-30613–31,00. html (last visited Nov. 8, 2002) [hereinafter Global initatives].
22 See Posadas, supra note 5, at 383–84.
23 See OECD Convention, supra note 2, at cmts., para. 1.
24 See id. at para. 2.
25 See Posadas, supra note 5, at 379–80.
26 See OECD Convention, supra note 2, at cmts., para. 1; Miller, supra note 4, at 141.
27 See id. at art. 1. Article 1, Paragraph 1 states: “Each Party shall take 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.”
28 See id. at art. 1; Miller, supra note 4, at 141–42. Article 1, Paragraph 2 states: “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.”
29 See OECD Convention, supra note 2, at art. 3. In addition, liability for “legal persons” must be established in accordance with Article 2: “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.” However, if a country’s legal system does not extend criminal responsibility to legal persons, the country is not required to establish criminal liability for legal persons bribing foreign public officials. See id. at cmts., para. 20.
30 See id. at art. 3.
31 See id.
32 See OECD Convention, supra note 2, at art. 3, para 2. Other non-criminal sanctions may include, “exclusion from entitlement to public benefits or aid; temporary or permanent disqualification from participation in public procurement or from the practice of other commercial activities; placing under judicial supervision; and a judicial winding-up order.” See id..
33 See id at art. 3 para 3.
34 See id. at art. 12.
35 See Organisation for Economic Co-Operation and Development, Bribery Convention: Procedure of Self- and Mutual Evaluation, at http://www.oecd.org/ oecd/pages/home/displaygeneral/0,3380,EN-document-88-nodirectorate-no-no-7218–31,00.html (last visited Nov. 8, 2002) [hereinafter Phase 1].
36 Id.; see Organisation for Economic Co-Operation and Development, Bribery Convention: Procedure of Self- and Mutual Evaluation, Phase 2, at http://www. oecd.org/oecd/pages/home/displaygeneral/0,3380,EN-document-88-nodirectorate-no-no- 7223–31,00.html (last visited Nov. 8, 2002) [hereinafter Phase 2].
37 See Phase 1, supra note 35.
38 See id.
39 Organisation for Economic Co-Operation and Development, About the OECD Convention and Other Instruments, at http://www.oecd.org/oecd/pages/ home/displaygeneral/0,3380,EN-about-88-nodirectorate-no-no-no-31,FF.html (last visited Nov. 8, 2002) [hereinafter OECD Convention and Other Instruments].
40 See Phase 2, supra note 36.
41 See id.
42 See id.
43 See id.
44 See id.
45 See Phase 2, supra note 36; Organisation for Economic Co-Operation and Development, Bribery Convention: Procedure of Self- and Mutual Evaluation For Implementation of the Convention and the Revised Recommendation—Phase 2: Annex, Terms of Reference for On-Site Visits, at http://www.oecd.org/pdf/ M00007000/M00007237.pdf (last visited Nov. 8, 2002) [hereinafter On-Site Visits].
46 See Phase 2, supra note 36; On-Site Visits, supra note 45.
47 The composition of the on-site evaluation team shall ensure adequate expertise in the areas to be examined. Lead examiners shall be chosen from countries for which a Phase 1 evaluation has been completed by the Working Group. On-Site Visits, supra note 45.
48 See OECD Convention, supra note 2, at art. 12 & cmts., para. 34.
49 See OECD Convention and other instruments, supra note 39; Phase 1, supra note 35.
50 See OECD Convention, supra note 2, at arts. 1, 3; Miller, supra note 4, at 144.
51 A number of other shortcomings of the Convention have also been identified. The Convention has been criticized for not addressing “passive bribery” and allowing small “facilitation payments.” See Miller, supra note 4, at 141, 143. Others have pointed out that the Convention fails to address illegal contributions and payments to foreign political parties and candidates, and may not apply to bribing family members of foreign public officials. See Posadas, supra note 5, at 381. While there are clearly a number of areas in which the Convention can be improved, this Note focuses on two areas where stricter standards can be utilized in order to aid the uniform implementation of the Convention.
52 See Miller, supra note 4, at 142; OECD Convention, supra note 2, at cmts. para. 2.
53 See id. In fact, the intention of the Convention and Article 1 is to establish a lowest common denominator for the implementation or interpretation measures, if any, to be taken by the signatories. Posadas, supra note 5, at 386.
54 See generally OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions: Ratification Status, at http://www.oecd.org/pdf/ M00017000/M00017037.pdf (last visited Nov. 8, 2002) [hereinafter Ratification Status].
55 See, e.g., Organisation for Economic Co-operation and Development, Belgium: Review of Implementation of the Convention and 1997 Recommendation 20, at http://www.oecd.org/pdf/M00007000/M00007820.pdf (last visited Nov. 8, 2002); Organisation for Economic Co-operation and Development, Argentina: Review of Implementation of the Convention and 1997 Recommendation 27, at http://www. oecd.org/pdf/M00007000/M00007183.pdf (last visited Nov. 8, 2002) [hereinafter Argentina Country Report]; Organisation for Economic Co-operation and Development, Bulgaria: Review of Implementation of the Convention and 1997 Recommendation 19, at http://www.oecd.org/pdf/M00007000/M00007825.pdf (last visited Nov. 8, 2002).
56 See Organisation for Economic Co-operation and Development, Report by the CIME: Implementation of the Convention on Bribery in International Business Transactions and the 1997 Revised Recommendations 3 (May 2001), at http://www.oecd.org/pdf/M00007000/M00007214.pdf (last visited Nov. 8, 2002) [hereinafter Implementation of the Convention].
57 See Argentina Country Report, supra note 55, at 27.
58 See OECD Convention, supra note 2, at cmts. para. 2.
59 Id. at art. 6.
60 See id. at art. 6 & cmts., para. 27–28.
61 See Organisation for Economic Co-operation and Development, Denmark: Review of Implementation of the Convention and 1997 Recommendation 27, at http://www.oecd.org/pdf/M00007000/M00007201.pdf (last visited Nov. 8, 2002) [hereinafter Denmark Country Report]; Organisation for Economic Co-operation and Development, France: Review of Implementation of the Convention and 1997 Recommendation 31, at http://www.oecd.org/pdf/M00007000/M00007204.pdf (last visited Nov. 8, 2002) [hereinafter France Country Report]; Organisation for Economic Co-operation and Development, Germany: Review of Implementation of the Convention and 1997 Recommendation 19, at http://www.oecd.org/pdf/M00007000/ M00007830.pdf (last visited Nov. 8, 2002); Organisation for Economic Co-operation and Development, Hungary: Review of Implementation of the Convention and 1997 Recommendation 20, at http://www.oecd.org/pdf/M00007000/M00007833.pdf (last visited Nov. 8, 2002) [hereinafter Hungary Country Report]; Organisation for Economic Co-operation and Development, Slovak Republic: Review of Implementation of the Convention and 1997 Recommendation 23, at http://www.oecd. org/pdf/M00007000/M00007841.pdf (last visited Nov. 8, 2002) [hereinafter Slovak Republic Country Report].
62 See France Country Report, supra note 61, at 31; Hungary Country Report, supra note 61, at 20; Organisation for Economic Co-operation and Development, Japan: Review of Implementation of the Convention and 1997 Recommendation 27, at http://www.oecd.org/pdf/M00007000/M00007835.pdf (last visited Nov. 8, 2002) [hereinafter Japan Country Report]; Slovak Republic Country Report, supra note 61, at 23. In addition, Mexico’s statute of limitation is three years where the offense is punishable by between two months and two years of imprisonment but the statute of limitations is eight years where the offense is punishable by between two and fourteen years of imprisonment. Moreover, the Mexico legislation provides for the doubling of the limitations period where the suspect is abroad and due to his/her absence it is not possible to prepare the pre-trial investigation, conclude a process or execute a sanction. See Organisation for Economic Co-operation and Development, Mexico: Review of Implementation of the Convention and 1997 Recommendation 14, at http://www.oecd.org/pdf/M00007000/ M00007838.pdf (last visited Nov. 8, 2002) [hereinafter Mexico Country Report].
63See Organisation for Economic Co-operation and Development, Australia: Review of Implementation of the Convention and 1997 Recommendation 13–14, at http://www.oecd.org/pdf/M00007000/M00007713.pdf (last visited Nov. 8, 2002) [hereinafter Australia Country Report]; Organisation for Economic Co-operation and Development, Canada: Review of Implementation of the Convention and 1997 Recommendation 15, at http://www.oecd.org/pdf/M00007000/M00007826.pdf (last visited Nov. 8, 2002) [hereinafter Canada Country Report]; Organisation for Economic Co-operation and Development, United Kingdom: Review of Implementation of the Convention and 1997 Recommendation 15, at http://www.oecd.org/pdf/ M00013000/M00013351.pdf (last visited Nov. 8, 2002) [hereinafter U.K. Country Report].
64 See Denmark Country Report, supra note 61, at 27. The statute of limitations for natural persons in Denmark is five years. The Working Group recommended that the statute of limitations for legal persons should be equivalent to the statute of limitations for natural persons.
65 See id. at 27.
66 See France Country Report, supra note 61, at 31; Denmark Country Report, supra note 61, at 27.
67 The Working Group has called for Phase 2 evaluations of all participants to be completed by 2005. See Phase 2, supra note 36. However, the Convention’s entry into force varies by country from February 15, 1999 (Canada, France, Germany, Hungary, Iceland, the United Kingdom and the United States) to August 24, 2001 (New Zealand). See Ratification Status, supra note 54.
68 Of the twenty-eight countries evaluated by November 13, 2001, nineteen have adopted a statute of limitations of at least five years and three countries have no statute of limitations. See Organisation for Economic Co-operation and Development, Country Reports on the Implementation of the Convention, at http://www.oecd.org/ oecd/pages/home/displaygeneral/0,3380,EN-document-88-nodirectorate-no-3–16889–31,FF.html (last visited Nov. 8, 2002) [hereinafter Country Reports on the Implementation of the Convention]. In fact, Iceland increased the statute of limitations where the offense only subjects the offender to fines (which generally applies to legal persons) from two years to five years following the Working Group’s examination. Organisation for Economic Co-operation and Development, Iceland: Review of Implementation of the Convention and 1997 Recommendation 20 & n.6, at http://www.oecd.org/pdf/ M00007000/M00007834.pdf (last visited Nov. 8, 2002).
69 See OECD Convention, supra note 2, at cmts. para. 2.
70 See id.
71 See id. at art. 2 & cmts. para. 20.
72 See Implementation of the Convention, supra note 56, at 8.
73 See Organisation for Economic Co-operation and Development, Austria: Review of Implementation of the Convention and 1997 Recommendation 9, at http://www.oecd.org/pdf/M00007000/M00007769.pdf (last visited Nov. 8, 2002) [hereinafter Austria Country Report]; Mexico Country Report, supra note 62, at 8; Slovak Republic Country Report, supra note 61, at 8; Organisation for Economic Co-operation and Development, Spain: Review of Implementation of the Convention and 1997 Recommendation 9, at http://www.oecd.org/pdf/M00007000/M00007842.pdf (last visited Nov. 8, 2002) [hereinafter Spain Country Report]; Organisation for Economic Co-operation and Development, Sweden: Review of Implementation of the Convention and 1997 Recommendation 8, at http://www.oecd.org/pdf/M00007000/ M00007844.pdf (last visited Nov. 8, 2002) [hereinafter Sweden Country Report].
74 See Austria Country Report, supra note 73, at 9; Mexico Country Report, supra note 62, at 8; Slovak Republic Country Report, supra note 61, at 8; Spain Country Report, supra note 73, at 9; Sweden Country Report, supra note 73, at 8.
75 See Sweden Country Report, supra note 73, at 8; Mexico Country Report, supra note 62, at 8.
76 See Organisation for Economic Co-operation and Development, Luxembourg: Review of Implementation of the Convention and 1997 Recommendation 13, at http://www.oecd.org/pdf/M00007000/M00007208.pdf (last visited Nov. 8, 2002); Organisation for Economic Co-operation and Development, United States: Review of Implementation of the Convention and 1997 Recommendation 11, at http://www.oecd.org/pdf/M00007000/M00007849.pdf (last visited Nov. 8, 2002) [hereinafter U.S. Country Report].
77 See, e.g., Slovak Republic Country Report, supra note 61, at 23; Canada Country Report, supra note 63, at 24.
78 See Japan Country Report, supra note 62, at 26; OECD Convention, supra note 2, art. 3.
79 See Japan Country Report, supra note 62, at 26.
80 See Australia Country Report, supra note 63, at 10, 24. Australian authorities have noted that a conviction for bribery would disqualify the company from a number of business activities (e.g., casinos, broadcasting). Australia Country Report, supra note 63, at 24.
81 See OECD Convention, supra note 2, at art. 3, para. 1.
82 Id.
83 Id.
84 See id. at art. 3. In addition, the Commentaries on the OECD Convention provide little additional guidance. See OECD Convention, supra note 2, at cmts., paras. 21–24.
85 See OECD Convention, supra note 2, at cmts. para. 2.
86 See Canada Country Report, supra note 63, at 24.
87 See id.
88 See Denmark Country Report, supra note 61, at 26.
89 See Organisation for Economic Co-operation and Development, Korea: Review of Implementation of the Convention and 1997 Recommendation 9, at http://www.oecd.org/pdf/M00007000/M00007837.pdf (last visited Nov. 8, 2002); Organisation for Economic Co-operation and Development, Switzerland: Review of Implementation of the Convention and 1997 Recommendation 8, at http:// www.oecd.org/pdf/M00007000/M00007846.pdf (last visited Nov. 8, 2002); U.S. Country Report, supra note 76, at 11.
90 The twelve signatory countries having less than a five-year maximum term of imprisonment for natural persons convicted of bribery are Austria, Bulgaria, Denmark, Finland, Hungary, Iceland, Italy, Japan, Norway, Slovak Republic, Spain, and Sweden. See Country Reports on the Implementation of the Convention, supra note 68.
91 See, e.g., Organisation for Economic Co-operation and Development, Norway: Review of Implementation of the Convention and 1997 Recommendation 6, at http://www.oecd.org/pdf/M00007000/M00007839.pdf (last visited Nov. 8, 2002) [hereinafter Norway Country Report].
92 See, e.g., Mexico Country Report, supra note 62, at 8; U.S. Country Report, supra note 76, at 11.
93 See OECD Convention, supra note 2, at cmts., para. 2.
94 See, e.g., Australia Country Report, supra note 63, at 10. In addition, many countries have left fines to the discretion of their judicial system. See, e.g., Canada Country Report, supra note 63, at 9; Norway Country Report, supra note 91, at 6.
95 See, e.g., Japan Country Report, supra note 63, at 9; U.S. Country Report, supra note 76, at 11. Countries currently not meeting this standard include Argentina, Austria, Bulgaria, Czech Republic, Denmark, Greece, Hungary, Italy, Luxembourg, Slovak Republic, Spain, and Switzerland. See Country Reports on the Implementation of the Convention, supra note 68.
96 See OECD Convention, supra note 2, at art. 3.
97 See id. at cmts. para. 2.