Re-Imagining Corporate Accountability on a Multilateral Scale


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Marc Tassé By Marc Tassé and Noah Archinoff
Published on Tuesday April 7, 2020  
 

How do you hold an entity which only exists on paper accountable for a criminal offence? Dealing with corporate corruption has recently veered away from traditional criminal legal proceedings. As discussed in the OECD’s 2018 report,1 non-trial resolutions have accounted for 78 per cent of all corruption enforcement proceedings in states that are signatories to the OECD Convention.2 Creative means are being increasingly employed to imbue responsible behaviour on corporate offenders, often aimed at shifting the focus from criminal punishment to preventative measures.

We believe the following recommendations merit further consideration in how to re-imagine corporate accountability on a multilateral scale.

  1. Add a Failure to Prevent Offence to the OECD Convention’s Expectations

We recommend that Article 1, paragraphs 1 and 2 of the OECD Convention be amended to explicitly require the inclusion of a “failure to prevent” offence in domestic anti-corruption laws. This would increase the robustness and completeness of what signatories must do to combat corruption, but more importantly it shifts the focus from punishment to prevention.

  1. Add Anti-Corruption Provisions to International Treaties

Amend Articles 3, 4, and 5 of the OECD Convention to make it a requirement that signatories adopt model provisions on anti-corruption in their international trade and investment agreements, including requiring parties to properly apply and enforce laws, not merely having them on paper. Contravention of such requirements should provide recourse to a new OECD dispute settlement mechanism with jurisdiction to hear and adjudicate complaints.

  1. Adopt a Dispute Settlement Mechanism Under the OECD Convention

The OECD Convention, being the model treaty on anti-corruption around the world with the best monitoring system, is well-placed to be the arbiter of anti-corruption disputes or complaints. It can base the jurisdictional approach on the new Facility-Specific Rapid Response Labor Mechanism of the United States-Mexico-Canada Trade Agreement (USMCTA)   and can be the effective distributor of funds to further combat corruption around the world.

  1. Conduct Further Research on the Imposition of Sanctions by an OECD Dispute Settlement Body

Further research is required to examine how a sanctions system on a multilateral scale might function and determine whether, under the OECD Convention, the creation of side agreements binding the major financial institutions of all signatory countries to refuse business with an entity that was sanctioned by an OECD dispute settlement panel could be implemented.

  1. Consider Magnitsky-Style Sanctions

Consider the merits of amending Article 3 of the OECD Convention to require that signatories adopt Magnitsky style sanctions in their domestic laws.

  1. Research the Adaptability of the French Law on Vigilance to Anti-Corruption

Further study should be conducted to determine the effectiveness of the French law on the duty of vigilance to assess whether similar laws should be applied in other jurisdictions, including adding a requirement to the OECD Convention.

  1. OECD Leverage its Position to Gather Data and Partner on Anti-Corruption Initiatives

The OECD could leverage its position as a multilateral think tank to serve as an international contact point and gather anonymous data from industry on corruption. This would enable the OECD to partner with industry-led initiatives and influence where to focus anti-corruption initiatives.

 

The complete presentation is now available at Re-Imagining Corporate Accountability on a Multilateral Scale.

 

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1 OECD, Resolving Foreign Bribery Cases with Non-Trial Resolutions: Settlements and Non-Trial Agreements by Parties to the Anti-Bribery Convention (Paris: OECD, 2019) – www.oecd.org/corruption/Resolving-Foreign-Bribery-Cases-with-Non-Trial-Resolutions.htm.

2 OECD, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Paris: OECD, 2011) – http://www.oecd.org/daf/anti-bribery/ConvCombatBribery_ENG.pdf.

 

 

ABOUT THE AUTHORS

Marc Tassé, MBA, CPA, CA, CFF

Marc is a member of the AntiCorruptionExperts network. As an investigative and forensic accountant, he is an internationally renowned subject matter expert in the fields of anti-bribery / anti-corruption, anti-money laundering, and anti-fraud. An award-winning lecturer in the MBA program at the Telfer School of Management and in the Common Law Section at the University of Ottawa’s Faculty of Law, he examines domestic and transnational financial crime from different angles and explores what motivateSs people to break the law, how they cover their tracks, and what can be done to stop them.

Noah Arshinoff, B.Soc.Sc., J.D.

Noah Arshinoff teaches Anti-Corruption Law at the University of Ottawa’s Faculty of Law. He formerly spearheaded a dedicated anti-corruption unit in Canada’s legal sector where he advocated for the strengthening of Canada’s anti-corruption regime. He has successfully brought about policy and legislative amendments to bolster the options available to prosecutors when dealing with corporate offenders. Noah is currently legal counsel at the Canada Deposit Insurance Corporation.

 

 

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