Chapter 2: International standards

Translation:

French

Spanish

This part of the guide contains an overview of the UNCAC and its private sector provisions relating to criminalization, sanctions, and measures to encourage cooperation and reporting by the private sector. It also discusses Principle Ten of the UN Global Compact that is focused on anti-corruption in the private sector, as well as the standards emanating from the OECD Anti-Bribery Convention and its related recommendations.

While the above-mentioned international standards are discussed throughout this guide, other regional standards exist around the world. In particular, the African Union Convention on Preventing and Combating Corruption¹⁰ strives to promote, regulate, strengthen, and facilitate cooperation among Member States to counter corruption and to coordinate and harmonize anti-corruption policies and legislation.

The Inter-American Convention Against Corruption,¹¹ implemented by members of the Organization of American States, contains similar objectives. The Council of Europe has also established the Group of States Against Corruption (GRECO)¹² with the stated objective to “improve the capacity of its members to fight corruption by monitoring their compliance with Council of Europe anti-corruption standards through a dynamic process of mutual evaluation and peer pressure”¹³.Additionally, the European Union anti- corruption framework¹⁴ strives to ensure a common high standard of legislation, either specifically on corruption, or incorporating anti-corruption provisions in other sectoral legislation.

Both the OECD Anti-Bribery Convention and UNCAC have helped signatory countries to enact laws or otherwise strengthen their institutional framework and enforcement capacity to combat various corrupt practices. In particular, signatory countries must ensure that both natural and legal persons may be held liable for the covered corrupt practices and subject to effective, proportionate, and dissuasive sanctions. Collectively, the OECD Anti-Bribery Convention and UNCAC shape businesses’ behaviour in international markets by deterring, detecting, and sanctioning the offer of bribes. While both Conventions stress the importance of criminalization and enforcement, the Conventions themselves, or other related instruments, also recognize the role of businesses in prevention as an indispensable component of any effective anti- corruption policy.

Designed to provide a comprehensive framework for addressing corruption, UNCAC is the only legally binding universal anti-corruption instrument. Its far-reaching approach and the mandatory character of many of its provisions have made it a unique tool for developing a comprehensive response to the problem of corruption. UNCAC has 190 parties¹⁵ that have committed to wide-ranging measures that seek to prevent corruption, criminalize bribery and other forms of corruption, strengthen law enforcement and international cooperation, establish legal mechanisms for asset recovery, and provide for technical assistance and information exchange.

The responsibility of meeting the obligations of UNCAC ultimately lies with States parties; however, there are several provisions relating to private sector corruption which are of particular relevance to the business community. UNCAC requires its States parties to criminalize various forms of corruption, including bribery and embezzlement in the private sector. It also contains a detailed article specifically addressing corruption prevention in the private sector. Several other articles address the concepts of reporting (whistle-blower protection), sanctions and remedies, and cooperation between authorities and the private sector.

Criminalization provisions in chapter III of UNCAC provide a baseline for business integrity, detailing corruption offences that States are called upon to proscribe by legislation. Additionally, chapter IV on International Cooperation calls on States parties to cooperate with one another in criminal matters, including in relation to the private sector.

Criminalization and international cooperation provisions

UNCAC also contains provisions that call on States parties to enact or consider measures that promote business integrity and the reporting of corruption.

Provisions promoting integrity and reporting of corruption in the private sector

2.1.1. Recent developments

In 2021, the United Nations General Assembly Special Session (UNGASS) against corruption adopted a political declaration that reaffirmed the commitment of Member States to strengthen, inter alia, ethical behaviour, anti-corruption and anti-bribery compliance efforts, integrity, accountability, and transparency measures in all enterprises. Member States also encouraged the private sector to take collective action in this regard, including through the establishment of public-private partnerships in the prevention of and fight against corruption¹⁶.

In 2023, the Conference of the States Parties to the United Nations Convention against Corruption adopted at its tenth session resolution 10/12 that calls upon States parties to develop effective frameworks to provide incentives for the private sector to adopt integrity measures, inter alia, with a view to tying integrity measures to participation in public programmes, such as those related to subsidies, licenses, procurement contracts and export credits, while also considering the structure and size of private enterprises¹⁷_.

With more than 22,300¹⁸ participant companies and the support of 193 Member States of the United Nations General Assembly, the UN Global Compact remains the single, global normative authority and reference point for action and leadership within a growing global corporate sustainability movement. The UN Global Compact provides a principle-based framework that guides companies to do business responsibly and keep commitments to society.

The Ten Principles of the UN Global Compact guide business to operate in ways that, at a minimum, meet fundamental responsibilities in the areas of human rights, labour, environment, and anti-corruption. Principle Ten of the UN Global Compact, first adopted in 2004, commits participants not only to avoid bribery, extortion and other forms of corruption, but also to proactively develop policies and concrete programmes to address corruption internally and within their supply chains. Companies are also challenged to work collectively and join civil society, the United Nations and governments to realize a more transparent global economy.

Global Compact Country Networks have become an essential component of the UN Global Compact. These Country Networks are multi-stakeholder platforms where participants come together to work directly with businesses to help them promote the UN Global Compact Ten Principles. They help companies understand what responsible business means within different national, cultural and language contexts, and facilitate outreach, learning, policy dialogue, collective action and partnerships¹⁹.

The Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention) is the first and only instrument that focuses on the ‘supply side’ of corruption. It was signed in 1997 and entered into force in 1999. As of January 2024, there were 46 Parties to the OECD Anti-Bribery Convention²⁰. All the Parties to the Convention are members of the OECD Working Group on Bribery.

It contains legally binding standards to criminalize bribery of foreign public officials in international business transactions.

Dispositions de la Convention anticorruption de l’OCDE

The OECD Anti-Bribery Convention and the OECD Working Group on Bribery peer monitoring have achieved notable policy successes.

From the OECD Anti-Bribery Convention’s entry into force on 15 February 1999:

All the Parties to the OECD Anti-Bribery Convention have adopted legislation prohibiting foreign bribery.
The OECD Working Group on Bribery monitoring has also contributed to significant legislative reforms that have transformed the fight against corruption in specific Parties, including the adoption of the United Kingdom’s Bribery Act and France’s SAPIN II Law, in addition to helping to strengthen standards for ensuring corporate liability and for promoting whistle-blower protection.
Those Parties have collectively imposed sanctions for foreign bribery through at least 775 criminal, administrative or civil proceedings for natural persons and 385 proceedings for legal persons.
To foster the implementation of its substantive obligations, the OECD Anti-Bribery Convention established a peer-review monitoring mechanism which is carried out by the OECD Working Group on Bribery.
peer-review monitoring system is conducted in successive phases. The Working Group’s country monitoring reports contain recommendations developed on the basis of rigorous examinations of each country.

The OECD Anti-Bribery Convention is complemented by a set of related instruments containing measures that its Parties must implement to reinforce their efforts to prevent, detect and investigate foreign bribery. The 2021 Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions (2021 OECD Anti-Bribery Recommendation)²¹. reflects the OECD Working Group on Bribery’s recommendations made through its country monitoring and ensures that it continues to respond to new threats of foreign bribery and challenges in countering it.

The 2021 OECD Anti-Bribery Recommendation introduces provisions on issues such as provisions including requirements in relation to business integrity:

Criminalisation and Enforcement of the Offence of Bribery of Foreign Public Officials (Sections VII, XI)
Collective Actions (Sections IV and XII)
Addressing the Demand Side (Section XII)
Sanctions and Confiscation (Sections XV and XVI)
Non-Trial Resolutions (Sections XVII and XVIII)
Reporting Foreign Bribery (Section XXI)
Protection of Reporting Persons (Section XXII)
Accounting Requirements, External Audit, and Internal Controls, Ethics and Compliance (Section XXIII)
Incentives for Corporate Anti-corruption Compliance (Sections XV and XXIII)
Public Advantages, including Public Procurement (Section XXIV)

The Good Practice Guidance on Internal Controls, Ethics, and Compliance (Annex II to the 2021 OECD Anti-Bribery Recommendation) emphasizes that businesses’ compliance efforts should be tailored to risk and be accessible to employees. It also clarifies that anti-corruption compliance provisions are applicable to State-Owned Enterprises (SOEs) as well as private companies.

In addition, the 2021 OECD Anti-Bribery Recommendation recognizes in its preamble the potential role of innovative technologies in advancing public and private sectors efforts to combat foreign bribery.

United Nations

UNODC Business Integrity Portal

Chapter 2: International standards

2.1. UNCAC and the private sector

Criminalization and international cooperation provisions

Provisions promoting integrity and reporting of corruption in the private sector

2.1.1. Recent developments

2.2. UN Global Compact – Principle Ten

2.3. OECD Anti-Bribery Convention and the private sector

Dispositions de la Convention anticorruption de l’OCDE

2.4. 2021 OECD Anti-bribery Recommendation