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Beyond good intentions: the OECD Anti-Bribery Convention's pursuit of prescriptive enforcement.

I. INTRODUCTION

The first step to fixing a problem is recognizing there is one. (1) Initially, forty nations signed an agreement to internationally combat bribery by foreign public officials under uniformed terms and conditions enforced by the Organisation for Economic Co-Operation and Development (OECD). (2) Unfortunately, the OECD pursued unviable goals of establishing harmony and leveling the playing field because their agreement lacked the power to demand performance. (3) Specifically, non- complying signatories of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention) will not face any consequences for disregarding their obligations. (4) The Anti-Bribery Convention took a primary bite at being the first to establish uniformed standards for internationally combating bribery. (5) The Anti-Bribery Convention's primary bite lacked teeth because it ratified a historically soft law treaty that relied on a functionally equivalent approach, which resulted in the Anti-Bribery Convention's lack of power to mandate signatories' performance. (6) For this reason, the Anti-Bribery Convention needs a method of prescriptive enforcement in order to effectively combat bribery and establish harmony--this is the Anti-Bribery Convention's primary problem. (7)

This Note analyzes the Anti-Bribery Convention's implementation and enforcement methods and attempts to indicate the primary causes of its impediments. (8) Specifically, this Note will evaluate the Anti-Bribery Convention's effectiveness and conclude by proposing prescriptive enforcement methods to resolve complications. (9) Part II of this Note will discuss how and why the Anti-Bribery Convention was created, its sole reliance on peer reviews for enforcement, its concerns regarding commitment, and how the functional equivalency approach of the Anti-Bribery Convention lacks clarity resulting in misinterpretations. (10) Part III of this Note will illustrate concerns about the signatories' lack of commitment by analyzing the 2012 Annual Report's executive summaries. (11) Part IV of this Note will prescribe a hybrid alignment method consisting of current enforcement methods and adds a Phase 4 mandatory implementation with consequences for non-compliance. (12) Finally, Part V of this Note acknowledges the Anti-Bribery Convention's efforts, but reiterates how the Anti-Bribery Convention's passivity will continue to result in discontinuity and prevent harmony. (13)

II. HISTORY: INTERNATIONALLY COMBATING BRIBERY BY FOREIGN PUBLIC OFFICIALS PRE-ANTI-BRIBERY CONVENTION:

A. Initial Attempts to Combat Bribery

The OECD created the Anti-Bribery Convention to combat bribery by foreign public officials primarily in response to the United States' regional efforts to control and monitor corruption among their business entities doing business abroad. (14) The United States encouraged other industrialized countries to adopt legislation similar to their Foreign Corrupt Practices Act (FCPA) in order to level the playing field for competing businesses and increase market integrity and stability. (15) The trend of expanding global financial markets allows participants to transition from national markets to international markets, but such an expansion requires a robust and comprehensive system of international regulation in order to combat corruption. (16)

B. Post-Anti-Bribery Convention: Global Expansion of Financial Markets

As a result of the global expansion of financial markets, combating bribery required a robust and comprehensive system because acts of corruption demand quick detection and subsequent prosecution in order to lessen, prevent, or eliminate future financial crises or the perception of corruption. (17) Without international regulation and cooperation, national crises could quickly and easily spread across borders "because the increasing interconnectedness of the world means that financial crises and financial scandals are much more likely to be transnational and global events, rather than just national occurrences." (18) For example, the United States' aggressive regulation, enforcement, and litigation led market participants to exit the U.S. market and enter markets with less regulations. (19) In response, the Anti-Bribery Convention created a platform to reduce these new systematic risks by establishing provisions based on cooperation and international regulatory standards. (20) Although the Anti-Bribery Convention established transitional legislation for combating bribery in global financial markets, it fell short of a robust and comprehensive system because its provisions required ongoing cooperation, and it lacked a framework to guarantee the signatories' commitment to subsequently cooperate. (21)

C. Anti-Bribery Convention's Implementation and Enforcement

The Anti-Bribery Convention successfully established an instrument to level the playing field as a result of its signatories' ratification; however, the Anti-Bribery Convention failed to establish harmony because it solely relied on a functionally equivalent enforcement method. (22) Specifically, the Anti-Bribery Convention's legally binding instrument established foreign bribery as a crime even if tolerated in the foreign country, and it extended liability to individuals and companies through third parties' involvement in bribery transactions. (23) Although this instrument was applauded for its ability to maintain a fair global market, this platform for leveling the playing field lacks the strength necessary to support the weight of long-term enforcement because the platform's structure consists of a weak functionally equivalent framework. (24)

1. Anti-Bribery Convention's Working Group on Bribery

a. Working Group's Creation and Expectations

The OECD Working Group on Bribery in International Business Transactions' (Working Group) commitment to implement and enforce the Anti-Bribery Convention represented the heart of the operation constantly working to achieve harmony. (25) The Working Group monitored the implementation and enforcement of the Anti-Bribery Convention by conducting peer reviews that held signatories accountable for preventing, detecting, investigating, and prosecuting bribery. (26) The Working Group consisted of a representative from each signatory who collaborated and cooperated to produce considerable amounts of information from a variety of unique and diverse resources. (27) Although the Anti-Bribery Convention's multilateral monitoring peer reviews created a plethora of feedback, the Working Group lacked the power to globally combat bribery because to do so would require uniformity of interpretation. (28)

b. Working Group's Peer Reviews

The peer reviews consisted of lengthy, organized, and detailed meetings with signatories to implement the Anti-Bribery Convention and monitor progress. (29) First, the Working Group, consisting of experts from governments other than the one under review, visited the subject country to meet with prosecutors, members of private industry, and representatives from civil society groups. (30) Next, the Working Group compiled three phase reports based on information collected. (31) The phase reports consisted of evaluations and written and oral follow-up reports. (32) Notably, the Working Group shared the results publicly in Annual Reports to encourage complaince and guarantee commitment. (33)

The three phases conducted by the Working Group focus on different evaluations. (34) Phase 1 assessed the extent of conformity of a signatory's anti-bribery laws with the Anti-Bribery Convention. (35) Phase 2 assessed the state of the operation and enforcement of relevant national provisions and then generated the signatories' reports. (36) The Working Group met on-site for a week with actors from a variety of backgrounds: government, trade councils, development agencies, businesses, and civil society. (37) Phase 3 existed as the toughest round of evaluations that focused on investigation, enforcement, and prosecution. (38) The Working Group appointed two signatories to act as lead examiners to meet with a signatory on-site for three days, and then the Working Group would draft the signatory's executive summary, which a signatory would subsequently provide oral and written follow-ups on. (39) Although the Anti-Bribery Convention suggested the peer reviews' exposure existed as a method to guarantee the signatories' implementation, public shaming only led to minimal implementation. (40)

2. Anti-Bribery Convention's Reliance on Signatories

a. Signatories' Responsibilities

In order to effectively combat bribery among international financial markets that breed new systematic risks of bribery, the signatories must remain actively involved in cooperating and fulfilling their Anti-Bribery Convention obligations. (41) Notably, the world's major exporters and investors joined the Anti-Bribery Convention consisting of forty signatories: thirty-four OECD members and six non-members. (42) Signatories were required to make bribery a criminal offense and, where appropriate, investigate and prosecute those who offer, promise, or give bribes to foreign public officials internationally. (43) In addition, signatories provided the Anti-Bribery Convention's funding primarily by assessed and voluntary contributions, within the framework of a biennial program of work and budget, which takes into account the size of each signatory's economy. (44) As a result of the Anti-Bribery Convention's financial constraints, signatories are encouraged to support each other, especially economically depressed countries, by supplementing funding through a percentage of the fines collected from bribery violations. (45)

b. Signatories' Lack of Commitment

The Anti-Bribery Convention's detrimental reliance on signatories' commitment existed as one of the primary reasons for the lack of harmony. (46) Specifically, the Anti-Bribery Convention lacked any consequences for failing to implement a functionally equivalent legal framework or for failure to implement the Working Group's Recommendations. (47) Although the Anti-Bribery Convention created a powerful tool for cleaning up the markets, the Anti-Bribery Convention's strength depends on the signatories' commitment to implementation. (48) Signatories' commitment to implementation must strengthen as their responsibilities and expectations increase because of the rise of new risks and greater exposure to corruption due to the globalization of financial markets. (49) Without establishing a robust and comprehensive global system, signatories risk exposure to financial crisis consisting of greater regularity and severity. (50) For these reasons, nations and international bodies must continue to increase their commitment to the Anti-Bribery Convention and emphasis on transnational regulation because simply adopting enforcement of such regulation remains incomplete unless accompanied by persistent commitment. (51)

D. Anti-Bribery Convention and Supplemental Enforcement

1. Anti-Bribery Convention: Evolution of Hard Binding International Law

The growth of the Anti-Bribery Convention illustrated the demand for stricter regulations because combating bribery internationally within global financial markets require binding hard law. (52) For over thirty years, anti-bribery norms evolved from national hard law, to international soft law, and now to an international legally binding hard law instrument in the form of the Anti-Bribery Convention. (53) Initially, the soft law framework provided the perfect venue for international enforcement because it established a forum for policy discussion and persuasion that were conducive to consensus. (54) Most international enforcement relied on soft law because it allowed nations to pursue convergence and harmony by providing avenues for flexibility and expertise. (55) In addition, the soft law instruments were used to move public opinion to pressure governments to forcefully combat bribery. (56) After soft law moved normative positions, nations were willing to make a hard law commitment in the form of a preexisting agreement called the Anti-Bribery Convention. (57) The shift from international soft law to hard law illustrated the need for stricter enforcement because combating bribery internationally required binding instruments juxtaposed to prescriptive enforcement. (58)

2. Anti-Bribery Convention's Articles and Supplemental

Resources

Although signatories initially united when ratifying a familiar and common legislation, the Anti-Bribery Convention raised doubts about the likelihood of achieving harmony because several provisions lacked clarity and resulted in conflicting interpretations. (59) The Anti-Bribery Convention Commentaries explained how the Anti-Bribery Convention relied on a functional equivalent measurement without requiring specific changes in fundamental principles. (60) The Anti-Bribery Convention's seventeen Articles established uniformed methods for internationally combating bribery; however, the signatories' implementation efforts resulted in misinterpretations and conflicting interpretations because the Articles' content consisted of required provisions, discretionary provisions, and administrative provisions. (61)

a. Required Articles Resulted in Minor Misinterpretations

The following seven required Articles provided clear expectations, but resulted in minor misinterpretations. (62) The Offense of Bribery of Foreign Public Officials Article 1(1) required signatories to take necessary measures to make bribery, when obtaining or retaining business or other improper advantages, a criminal offense, "whether directly or through intermediaries" or third parties. (63) Article 1(2) required signatories to include "incitement, aiding, and abetting, or authorization of an act of bribery as a criminal [offense]." (64) The Anti-Bribery Convention defined a "foreign public official" as "any person holding a legislative, administrative or judicial office of a foreign country." (65) The Sanctions Article required "seizure and confiscation" of proceeds. (66) The Jurisdiction Article clearly established signatories' jurisdiction. (67) The Enforcement Article required signatories to investigate and prosecute offenses regardless of their impact on other nations. (68) The Accounting Article required signatories to prohibit "off-the-books" accounts and "inadequately defined transactions." (69) The Monitoring and Follow-up Article required signatories to implement a program "of systematic follow-up to monitor and promote the full implementation of the Anti-Bribery Convention." (70) The Money Laundering Article required signatories who made domestic bribery a predicate offense for its money laundering legislation to make foreign bribery a predicate offense. (71)

b. Discretionary Articles Resulted in Conflicting Interpretations

In contrast with the previous seven Articles resulting in minor misinterpretations, the following six discretionary Articles resulted in conflicting interpretations and unsatisfactory adaption because of the broad degree of discretion. (72) The Responsibility of Legal Persons Article allowed signatories to establish liability of legal persons in accordance with the signatories' legal principles. (73) In addition to the Sanction Article's required content, it also consisted of discretionary content because it allowed signatories to establish sanctions that are punishable by "effective, proportionate, and dissuasive criminal penalties." (74) In addition to the Accounting Article's required content, it also consisted of discretionary content because it allowed signatories to take measures within the framework of its laws and regulations for maintenance, disclosures, and auditing standards. (75) The Extradition Article allowed signatories to make bribery an extraditable offense under their domestic laws and extradition treaties. (76) The Mutual Legal Assistance Article required the signatories to provide legal assistance to each other by exchanging relevant information and documents within each signatory's laws and treaties. (77) The Statute of Limitations Article allowed signatories to establish any statute of limitations as long as it provided "an adequate period of time for investigation and prosecution" according to signatories' standards. (78)

c. Administrative Articles Resulted in Clear Interpretations

In contrast to the required and discretionary Articles' lack of clarity, the following six Anti-Bribery Convention Articles were administrative and provided specifications that signatories could not misinterpret. (79) The Responsible Authorities Article authorized the Secretary-General to "serve as the channel of communication" for notifying signatories. (80) In order to establish entry into force, the Article required that at least five of the ten signatories with the largest export shares ratify. (81) In addition, the Signature and Accession Article allowed non-signatories to participate in the Anti-Bribery Convention. (82) The Ratification and Depositary Article clearly stated, the "[Anti-Bribery] Convention is subject to acceptance, approval, or ratification by the signatories," but "in accordance with their respective laws." (83) In order to amend the Anti-Bribery Convention, signatories must notify other signatories prior to convening a meeting. (84) Signatories may withdraw from the Anti-Bribery Convention by submitting a written notification to the Secretary General. (85)

3. Anti-Bribery Convention's Supplemental Documents

As a result of the Anti-Bribery Convention's vagueness resulting from its historical soft law framework and the functional equivalent enforcement method, the Anti-Bribery Convention provided supplemental instruments to alleviate the lack of clarity and aide in signatories' implementation. (86) The most common instruments are the 2009 Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Recommendation) and the 2010 Good Practice Guidance on Internal Controls, Ethics, and Compliance (Good Practice Guidance). (87) The Anti-Bribery Recommendation provided targeted measures to enhance implementation and each signatory's prevention, detection, investigation, and prosecution obligations under the Anti-Bribery Convention. (88) The Good Practice Guidance provided specific information for companies to prevent and detect foreign bribery in international business dealings. (89) Notably, this instrument goes "beyond the procedures recommended for any specific foreign bribery law and are intended to be used on a global scale to comply with foreign bribery laws throughout the world." (90) The Good Practice Guidance emphasized effective internal controls and ethical compliance programs based on risk assessments. (91) Overall, the Good Practice Guidance encouraged businesses and professional organizations to play a vital role in providing anti-bribery information and training, advising on due diligence, as well as support in resisting extortion and solicitation. (92)

III. FACTS: EFFECTIVENESS ASSESSMENT EXPOSES ANTIBRIBERY CONVENTION'S WEAK ENFORCEMENT

A. Functional Equivalency

The Anti-Bribery Convention's reliance on the functional equivalency approach prevented harmonization because the lack of autonomous provisions created conflicting interpretations. (93) The functional equivalency approach allowed the signatories to adopt compatible measures without requiring exact replication. (94) A functional equivalency approach should only be relied on for determining how domestic laws work and whether a signatory was Convention-compliant. (95) The Anti-Bribery Convention's reliance on a functional equivalency approach beyond ratification purposes was ineffective primarily because of conflicting interpretations. (96)

B. United Kingdom's Neglected Obligations

1. United Kingdom's Conflicting Interpretations

The Working Group provided signatories with detailed evaluations and specific recommendations in order to synchronize regional legislation; however, the functional equivalency approach inhibits harmony because it allows signatories to disregard their obligations due to unresolved conflicting interpretations and lack of consequences. (97) During the United Kingdom's Phase 1 evaluation, the Anti-Bribery Convention had concerns about the lack of the United Kingdom's autonomous definition of "foreign public official." (98) The Working Group appeared dissatisfied with the United Kingdom's legal framework due to its "complexity and uncertainty." (99) The Working Group's dissatisfaction with the English law framework establishing "complexity and uncertainty" directly contradicted the functional equivalence approach because it failed to recognize each signatory's unique framework. (100) Although the Working Group attempted to remedy the Anti-Bribery Convention's ambiguity by suggesting alternative implementation methods, the United Kingdom disagreed with the Working Group's interpretation and disregarded their recommendations. (101)

2. United Kingdom's Lack of Commitment

The Corner House case illustrated the signatories' ability to neglect their obligations under the Anti-Bribery Convention due to the lack of clear standards for compliance or ramifications for failure to adequately implement the Anti-Bribery Convention. (102) The U.K. Serious Fraud Office (SFO) initiated an investigation involving deals with Saudi Arabia. (103) Under Article 5 of the Anti-Bribery Convention, signatories may not suspend investigations on the basis of potential effects on relations with other states. (104) The United Kingdom decided to ignore Article 5 and suspended its investigation into BAE System's suspected bribery. (105) The United Kingdom's disregard for Anti Bribery Convention obligations contributed to a "general undermining of the [Anti-Bribery Convention's] binding force." (106) The United Kingdom's lack of adherence exemplifies actions that exacerbate and hinder the Anti-Bribery Convention's ability to establish harmony. (107)

C. Assessment Raises Concerns About Anti-Bribery Convention's Effectiveness

In addition to the signatories' conflicting interpretations and blatant disregard for the Anti-Bribery Convention's provisions, the executive summaries also illustrated the signatories' neglected commitment to the Anti-Bribery Convention's obligations and raised doubts about eventually achieving harmony. (108) Averaging eight years postentry into force of legislation, the majority of signatories have failed to convict one person or company. (109) After assessing the conviction data and executive summaries, the Anti-Bribery Convention's effectiveness was questionable because the convictions were concentrated in only a few select signatories, and the signatories' executive summaries listed areas of improvement still consisting of matters several years postentry. (110)

1. Concentrated Conviction Data in Select Signatories

Although the United States, Germany, and Italy excelled at prosecuting bribery, many signatories have failed to bring any convictions or sanctions for foreign bribery. (111) As of December 2012, two hundred and sixteen individuals and ninety entities were criminally sanctioned for foreign bribery in only thirteen of the forty signatory States, and at least eighty-three of the individuals criminally sanctioned were sentenced to prison. (112) Notably, the top five signatories completed the year with seven to ninety convictions with the United States leading in highest conviction rate. (113) Unfortunately, the middle ten signatories completed the year with one to six convictions, and the bottom twenty-one signatories completed the year with zero convictions. (114) In response to the concentrated convictions in select signatories, the Anti-Bribery Convention demanded all signatories to show signs of stronger enforcement by boosting political leadership and increasing resources. (115)

2. Derogation of Anti-Bribery Convention

Similar to the concern regarding concentrated convictions in select signatories, the executive summaries vividly exposed the signatories' lack of commitment to adequately implement an appropriate legal framework. (116) In order to emphasize this obscure continuance of signatories' unsatisfactory efforts, the 2012 Annual Report provided twelve signatories' executive summaries that illustrated the predictable trend of long-term nonconformity. (117)

a. Executive Summaries: Recognized Specific Implementation Issues

In the 2012 Annual Report, the executive summaries highlighted the signatories' efforts at combating bribery through investigations, convictions, and enforcement techniques to include positive developments and areas of improvement. (118) According to Mark Peith, Chair of OECD Working Group on Bribery, there were some "big issues" during the third round reviews consisting of matters that are challenging for signatories, but must be resolved in order to effectively enforce the Anti-Bribery Convention. (119) The Anti-Bribery Convention refrained from providing justification or reasoning for these reoccurring issues. (120)

b. Executive Summaries: Presented Timing Issues

Shinning bright lights on all issues, rather than just "big issues," exposes potential causes for the Anti-Bribery Convention's impediments such as unacceptable delayed implementation. (121) The signatories' implementation delays were unacceptable because, signatories initially agreed to uphold these provisions and have yet to fulfill their obligations, the Anti-Bribery Convention's demands consist of feasible and anticipated implementation, and these unduly delays prevented the Anti-Bribery Convention from establishing harmony. (122)

i. Unacceptable Delay: Signatories Breach of Contract

Although the signatories ratified the Anti-Bribery Convention and initially agreed to make necessary implementations, the Working Group repeatedly demanded fulfillment of signatories' initial obligations. (123) Apparently, signatories have hid behind their good intentions to suggest that their intent to fulfill their Anti-Bribery Convention obligations would suffice; however, the Anti-Bribery Convention required commitment beyond good intentions to include actively establishing a system consistent with the Anti-Bribery Convention's model for combating bribery. (124) In order to effectively combat bribery on an international level, the signatories must continue to collaborate and remain committed to fulfilling on-going obligations under the Anti-Bribery Convention. (125) As a result of the Convention's lack of remedies for signatories' breach of contractual obligations, the signatories may continue to resist implementation without facing consequences. (126)

ii. Unacceptable Delay: Reasonable Demands

In addition to breach of contract, the Anti-Bribery Convention's implementation demands were comprised of common legislation for international enforcement and should not have caused such lengthy implementation delays. (127) The Working Group's areas of improvement consisted of, Anti-Bribery Convention matters, Recommendation matters, and Good Practice Guidance matters. (128) Although the signatories initially agreed to the Anti-Bribery Convention's familiar Articles, the signatories should have anticipated supplemental implementation because effectively combating bribery demands ongoing commitment and collaboration. (129) The following list of improvements emphasized the signatories' failure to implement anticipated demands and common legislation for international enforcement. (130) Greece needed to improve one Anti-Bribery Convention matter, four Recommendation matters, and three Good Practice Guidance matters. (131) Australia needed to improve two Anti-Bribery Convention matters and three Recommendation matters. (132) Austria needed to improve five Anti-Bribery Convention matters. (133) Hungary needed to improve one Anti-Bribery Convention matter, three Recommendation matters, and three Good Practice Guidance matters. (134) Slovak Republic needed to improve two Anti-Bribery Convention matters and two Good Practice Guidance matters. (135) Sweden needed to improve two Anti-Bribery Convention matters, three Recommendation matters, and three Good Practice Guidance matters. (136) France needed to improve three Anti-Bribery Convention matters, four Recommendation matters, and two Good Practice Guidance matters. (137) Spain needed to improve four Anti-Bribery Convention matters, one Recommendation matter, and one Good Practice Guidance matter. (138) Netherlands needed to improve one Anti-Bribery Convention matter and two Recommendation matters. (139) The United Kingdom needed to improve two Anti-Bribery Convention matters, two Recommendation matters, and two Good Practice Guidance matters. (140) The signatories must implement their areas of improvement from all three of the aforementioned resources without further delay because the Anti-Bribery Convention and its supplemental documents were established to further the pursuit of effectively combating bribery. (141)

iii. Unacceptable Delay: Negative Impact on Signatories' Performance

In addition to the unacceptable breach of anticipated obligations, a perception of the Anti-Bribery Convention's ineffectiveness suggests the signatories' delayed implementation may have negatively impacted performance and productivity. (142) Fourteen years post-entry of legislation implementation, Greece only conducted one investigation. (143) In 1999, Australia, Austria, Hungary, Slovak Republic, and Sweden entered their legislation implementations into force. (144) Thirteen years post-entry, Australia has conducted only one foreign bribery case. (145) Austria has not sanctioned anyone. (146) Hungary had only one conviction involving twenty-six individuals. (147) Slovak Republic performed only one investigation. (148) Sweden has not sanctioned anyone. (149) In 2000, France and Spain entered their legislation implementations into force. (150) Twelve years post-entry of legislation implementation, France had only initiated thirty proceedings with five convictions. (151) Spain has not sanctioned anyone. (152) Eleven years post-entry of legislation implementation, Netherlands legislation implementation entered into force. (153) Netherlands has not sanctioned anyone. (154) Twelve years post-entry of legislation implementation, the United Kingdom had seven of eight prosecutions involve sanctions. (155) United Kingdom had seven of eight prosecutions involve sanctions. (156)

c. Executive Summaries: Confirmed Signatories' Lack of Commitment

Most signatories have struggled to fulfill their Anti-Bribery Convention obligations as previously illustrated by their lengthy areas of improvement. (157) Although the Anti-Bribery Convention never stated a particular cause for these shortcomings, by assessing the signatories' conviction data and areas of improvement juxtaposed entry into force dates, a perception suggests the discrepancies articulated the potential causes. (158) Overall, the Anti-Bribery Convention's ineffectiveness resulted primarily from the signatories' lack of commitment, rather than the lack of clarity, due to the Anti-Bribery Convention's sole reliance on a functional equivalency approach. (159)

IV. ANALYSIS: PROPOSAL FOR STRICTER ENFORCEMENT

A. Functional Equivalency Approach and Signatories' Commitment Problematic

The Anti-Bribery Convention's reliance on a functional equivalency framework was essential for ratification purposes because it provided a platform for nations to unite to combat bribery under uniformed standards regardless of their current domestic laws. (160) The functional equivalency approach provided flexibility for the signatories to adapt their domestic laws to meet the Anti-Bribery Convention's expectations. (161) Although a functional equivalent framework initially sufficed to unite signatories, the Anti-Bribery Convention's subsequent reliance for enforcement purposes lacked the teeth necessary to internationally combat bribery because it was unable to guarantee compliance, unable to clarify conflicting interpretations, and unable to remedy non-compliance. (162)

In addition to the Anti-Bribery Convention's weak enforcement methods, the signatories abused their discretion by relying on the functional equivalency approach, and the Anti-Bribery Convention's lack of clarity to justify their non-compliance. (163) For example, some signatories argued that the Anti-Bribery Convention's ambiguity created conflicting interpretations that solely prevented compliance. (164) Other signatories relied on autonomy to suggest that failing to implement the Anti-Bribery Convention's recommendations was allowable under a functionally equivalent framework. (165) Regardless of ambiguity or autonomy, the signatories agreed to implement the legally binding Anti-Bribery Convention and should uphold the Anti-Bribery Convention's obligations. (166) In order to remedy these alleged pitfalls, the Anti-Bribery Convention must continue to reevaluate and consider alternative enforcement methods in order to effectively implement and establish uniformed regulations for internationally combating bribery. (167) Specifically, the Anti-Bribery Convention must develop prescriptive enforcement methods because combating bribery within global financial markets requires a robust and comprehensive system with rigid enforcement and uniformed interpretation. (168)

B. Three Interlocking Proposals for Stricter Enforcement

All of the signatories ratified the Anti-Bribery Convention. (169) As a result, signatories initially agreed to recognize and uphold the Anti-Bribery Convention's Articles and establish an adequate framework for globally combating bribery according to the Anti-Bribery Convention's standards for implementation and enforcement. (170) When evaluating the Anti-Bribery Convention's effectiveness, the 2012 Annual Report exposed the signatories' blatant disregard because signatories whose entry occurred over ten years ago still had yet to establish an adequate framework consistent with the Anti-Bribery Convention's standards. (171) The signatories' lack of commitment and delayed implementation continue to hinder the Anti-Bribery Convention's ability to establish harmony. (172) Specifically, the repetitive areas of improvement and concentrated conviction data of select signatories raised concerns about the Anti-Bribery Convention's effectiveness combating bribery internationally. (173) As a result, the Anti-Bribery Convention must prepare a strategy for tackling its discrepancies and the signatories' lack of commitment in order to establish effective uniformed enforcement. (174) Without delay, the Anti-Bribery Convention must initiate new enforcement methods with due diligence because the global expansion of financial markets has led to increasing transactions across borders and exposes more signatories to bribery, and the impact of such spanning corruption would destroy global financial markets. (175)

In view of the above issues, this segment of the Note adds another voice to the protest calling for stronger enforcement and commitment to internationally combat bribery and ensure fair markets. (176) It advances three interlocking proposals: (1) Hybrid Alignment: Dual Enforcement Methods, (2) New Phase 4: Mandatory Implementation of Executive Summary Improvements, and (3) Anti-Bribery Convention Amendment: Add "Removal" Article as Consequence for Noncompliance. (177)

1. Hybrid Alignment: Dual Enforcement Methods

In order to preserve the signatories' uniqueness and establish harmony, implementation and enforcement must consist of two different methods called a hybrid alignment. (178) First, the Anti-Bribery Convention should continue to rely on a functional equivalency approach to allow entry into force and provide signatories with the opportunity to alter their domestic laws to mimic the Anti-Bribery Convention. (179) Second, the Anti-Bribery Convention should rely on subsequent mandatory implementation for only those signatories who resist or remain incapable of establishing a framework consistent with the Anti-Bribery Convention's standards. (180) Overall, a hybrid alignment would allow the signatories to maintain discretion unless or until such uniqueness prevents the Anti-Bribery Convention from establishing harmony. (181)

Although the Anti-Bribery Convention believed a functional equivalency approach provided a proper venue for both implementation and enforcement, its specific usage for enforcement purposes lacked the authority necessary for the Working Group to demand that signatories implement, as opposed to consider, appropriate frameworks for effectively combating bribery. (182) In contrast, the Anti-Bribery Convention should continue to rely on a functional equivalency approach for implementation purposes because it effectively allowed the Working Group to assess each signatory and aided in the development of appropriate implementation strategies. (183) By relying on dual methods consisting of initial discretion for implementation purposes and subsequent mandatory requirements for enforcement purposes, the Anti-Bribery Convention would establish a balanced mechanism that would remedy the Anti-Bribery Convention's impediments and effectively guarantee harmony. (184) For example, following the Phase 3 peer reviews, if a signatory still lacked an appropriate framework, then the signatory would be required to implement remedies to the deficiencies stated in their executive summary's areas of improvement section within a reasonable period of time, based on the degree of distinctiveness and demands. (185)

Although a mandatory requirement was not initially considered as part of the Anti-Bribery Convention's efforts to combat bribery, mandatory methods exist as the only means necessary to remedy abusing the Anti-Bribery Convention's historical soft law framework; because soft law is often ignored, nations normally reference it rather than mandate it. (186) The Anti-Bribery Convention's transition into hard law prior to ratification supports the argument that in order to internationally criminalize bribery there must be uniformed, strict enforcement. (187) Signatories agreed to the binding hard law and should expect to alter their domestic laws by any means necessary in order to meet the Anti-Bribery Convention's expectations. (188) This would imply that signatories should expect to change their current laws, remove conflicting laws, and create new laws in order to fulfill their Anti-Bribery Convention obligations. (189)

2. New Phase 4: Mandatory Implementation of Executive Summary Improvements

The Anti-Bribery Convention must establish a Phase 4, similar to Phase 3, that focuses on those signatories who failed to implement a framework that meets the Anti-Bribery Convention's expectations. (190) During Phase 4, the signatories who have disregarded or failed to establish an adequate framework would be required to implement their areas of improvement. (191) The signatories' mandatory implementation would consist of the signatories' areas of improvement that were not adequately adopted after Phase 3. (192) The Working Group would be responsible for determining whether a signatory was compliant and established an adequate framework according to the Anti-Bribery Convention's expectations, or whether a signatory was noncompliant and continued to lack an appropriate framework consistent with the Anti-Bribery Convention. (193) A non-compliant signatory would receive a reasonable amount of time, as determined by the Working Group, to complete its mandatory implementation of their areas of improvement from their Phase 3 executive summary. (194) As a result of this new Phase 4, the Anti-Bribery Convention would advance the likelihood of establishing harmony because mandatory implementation circumvents future unreasonable delays by resolving issues involving lack of clarity, conflicting interpretations, and lack of commitment. (195)

The Working Group's reasonable and reliable assessments during the Phase 3 peer reviews justifies the Working Group's discretion to determine signatories' compliance status. (196) The Working Group's non-bias notorious efforts during the Phase 3 peer reviews consisted of clarifying areas of conflicting interpretations by conducting an in-depth assessment and drafting areas of improvement that specified exactly what the signatory needs to do to establish an adequate framework. (197) Although some of the executive summaries may have consisted of changes not mandated within the Anti-Bribery Convention Articles, the signatories should still acquire suggestions recognized in the Anti-Bribery Recommendation and Good Practice Guidance because implementation based on all Anti-Bribery Convention resources would guarantee effective international enforcement. (198)

The Working Group should be responsible for planning, organizing, meeting, and monitoring the progress of signatories in Phase 4, similar to their involvement in Phase 3. (199) The beginning of Phase 4 should consist of another peer review focusing on the signatories' attempt to implement the Phase 3 executive summaries' areas of improvement. (200) The Working Group should assess all signatories and determine whether or not the areas of improvement were adequately implemented--whether the signatory was compliant or non-compliant. (201) A signatory would be considered compliant if they implemented an adequate legal framework according to the Anti-Bribery Convention's expectations and, having done so, would preclude any mandatory requirements; however, if the signatory deviated too far from the Anti-Bribery Convention's standards and was deemed non-compliant, then its areas of improvement would be mandatory. (202) If, for any reason, a signatory refused to fulfill the mandatory requirements, the signatory should provide notice of its intent to withdraw with the Anti-Bribery Convention's Secretary General. (203)

3. Anti-Bribery Convention Amendment: Add "Removal" Article Consequence for Noncompliance

As a result of the Anti-Bribery Convention's ambiguity, the Anti-Bribery Convention failed to establish harmony because of the lack of uniformed interpretation. (204) Although the Anti-Bribery Convention attempted to resolve the lack of clarity by providing supplemental instruments, the functional equivalency approach was also problematic because it established an abundance of discretion for signatories to abuse. (205) In addition to the Anti-Bribery Convention's ineffectiveness due to ambiguity and abused discretion due to the functional equivalency approach, the Anti-Bribery Convention also lacked formal consequences for signatories who refused to comply with the Anti-Bribery Convention's demands. (206) Although the Anti-Bribery Convention and Working Group relied on the peer reviews' public exposure to guarantee compliance, the Anti-Bribery Convention must rely on stricter consequences such as removal from the Anti-Bribery Convention because public shaming only leads to minimal implementation. (207)

A removal article must be added to the Anti-Bribery Convention's Articles because the seventeen Articles fail to mention anything about consequences for the signatories who disregard their Anti-Bribery Convention obligations. (208) Amending the Anti-Bribery Convention is feasible because Article 16 established the power to amend. (209) For those signatories who contest amendment and disagree with revision, Article 17 established the freedom for signatories to withdraw at any time and for any reason. (210) By relying on both the Amendment and Withdrawal Articles, the Secretary General should amend the Anti-Bribery Convention to include a removal article. (211) Following the mandatory implementation stage, if the Working Group determined that a non-compliant signatory resisted or refrained from implementing their areas of improvement, then the signatory would receive notification of their removal from the Anti-Bribery Convention. (212) The removal process should mimic the withdrawal process by requiring notice and continued cooperation with other signatories until one year after receipt of notice. (213)

For example, the United Kingdom's disregard for recognizing its Anti-Bribery Convention obligations by refusing to comply with mandatory implementation would result in the Secretary General notifying the United Kingdom of its removal. (214) The United Kingdom would continue to cooperate with other signatories and removal would be final one year after receipt of notification. (215) The one year period after notice would exist as a probation period. (216) The probation period would provide the non-compliant signatory with one last opportunity to implement required improvements and submit a notice of compliance to the Secretary General. (217) Upon receipt, the Working Group would visit the signatory to determine whether or not they adequately implemented their areas of implementation. (218) If the Working Group verified compliance, the Working Group would notify the Secretary General of such compliance, and the signatory's removal status would be withdrawn, and the signatory would be reinstated. (219) Overall, a removal consequence would likely result in the signatories' immediate compliance because signatories removed from the Anti-Bribery Convention would be at a huge disadvantage for combating bribery internationally due to the loss of mutual assistance; signatories understand how bribery participants normally target nations with weak regulations. (220) Notably, the Anti-Bribery Convention would no longer tolerate the signatories' blatant disregard for their Anti-Bribery Convention obligations because this amendment would finally establish the teeth or rigid enforcement necessary to command signatories' compliance and establish harmony. (221)

C. Interlocking Proposal: Guaranteed Effectiveness and Harmony

1. Unlikely Risk of Unraveling Anti-Bribery Convention's Progress

Skeptics may express concern about the risk of losing signatories; however, the interlocking proposal previously described would not unravel the Anti-Bribery Convention's progress primarily because of the United States' involvement and status as the Anti-Bribery Convention's lead enforcer and contributor. (222) Initially, the United States solely promoted international anti-bribery regulations, which lead to the Anti-Bribery Convention's establishment. (223) Although the United States was effectively convicting those involved in bribery prior to the Anti-Bribery Convention's establishment, jurisdictional limitations marginalized the United States' ability to prosecute bribery by foreign public officials internationally. (224) The Anti-Bribery Convention's Extradition Article allowed the United States to prosecute bribery by foreign public officials in any signatory location, which primarily lead to the United States flourishing as the leader in convictions. (225) As a result of the large revenues received from prosecuting international bribery convictions, the United States would likely provide significant aide to those signatories at risk of removal in order to prevent losing the power to extradite, which would result in a decline in the progresses made to internationally combat bribery. (226)

2. United States Will Likely Aide Non-Compliant Signatories

The United States existed as the expert signatory for combating bribery and has the knowledge and resources to aide those signatories risking removal from the Anti-Bribery Convention. (227) If the United States received notice that the Anti-Bribery Convention was removing a non-compliant signatory, the United States would likely fear losing its jurisdictional reach and would provide significant assistance. (228) Specifically, the United States should provide non-compliant signatories with additional assistance beyond the Anti-Bribery Convention's obligations by sharing their distinctive expertise and guidance for investigating and prosecuting bribery offenses. (229) As opposed to the United States prosecuting foreign public officials, the United States must help signatories establish their own methods for effectively enforcing, investigating, and convicting foreign public officials in their nations. (230) This assistance will not only prevent the signatory's removal and improve the Anti-Bribery Convention's progress, but would ultimately achieve the Anti-Bribery Convention's goal of harmony and the United States' goal of leveling the playing field. (231)

V. CONCLUSION

As business transactions expand across more nations, such corporate growth creates new risks because of the exposure to larger volumes of bribery. (232) For this reason, nations must unite with a common goal of combating bribery and continue ongoing collaborations to eventually achieve harmony. (233) The Anti-Bribery Convention has effectively established an international platform for monitoring and enforcing the criminalization of bribery by foreign public officials. (234) Conversely, the Anti-Bribery Convention lacks prescriptive enforcement because it primarily relied on a functional equivalency approach, which was a primary bite without the teeth necessary for international enforcement. (235) Due to the lack of prescriptive enforcement, signatories and government officials have evaded their initial agreement to uphold the Anti-Bribery Convention's responsibilities and expectations. (236) As a result of these restraints on establishing harmony, the Anti-Bribery Convention must respond by initiating new methods of stricter enforcement consisting of mandatory implementations and consequences for signatories who fail to remain committed to the Anti-Bribery Convention initiatives. (237) The signatories initially agreed to the Anti-Bribery Convention's terms and conditions by entry and should no longer be allowed to ignore their responsibilities because guaranteeing ongoing commitment remains as the only way to internationally combat bribery by foreign public officials. (238)

(1.) See generally OECD Working Group on Bribery: Annual Report on Activities Undertaken in 2012 (2013), http://www.oecd.org/daf/antibribery/Anti BriberyAnnRep2012.pdf [hereinafter 2012 Annual Report] (acknowledging en- forcement issues and recognizing achievements in combating bribery internationally). The Organisation for Economic Co-Operation and Development (OECD) Working Group (Working Group)'s efforts include making "a stronger, cleaner and fairer world economy." Id. at 2.

(2.) Id. at 7 (acknowledging forty signatories that entered into force to combat bribery internationally). The Organisation for Economic Co-Operation and Development (OECD) Working Group (Working Group)'s efforts include making "a stronger, cleaner and fairer world economy." Id. at 2. Bribery has the power to distort "markets and raises the cost of doing business." Id. at 6. The Secretary-General of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention), A' ngel Gurri'a, explained how "[a]ctive enforcement is the best weapon we have to fight foreign bribery. Id. at 3. The Anti-Bribery Convention "is a powerful tool for cleaning up markets." Id. at 2. See OECD Working Group on Bribery in International Business Transactions, Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions 1, 1 (2009), http://www.rmmlf.org/Istanbul/5-OECD-Recommendation-for-Further-CombatingBribery.pdf [hereinafter Anti-Bribery Recommendation] (recognizing bribery as "widespread phenomenon" throughout international business transactions).

(3.) See generally Fritz Heimann et al., Progress Report 2011: Enforcement of the OECD Anti-Bribery Convention, (Transparency Int'l 2011), available at http://www.transparencv.org/whatwedo/publication/progress_report_2011 _enforcement_of_the_oecd_anti_bribery_convention [hereinafter Transparency International] (suggesting signatories' lack of political commitment contributed to delayed implementation). Transparency International's report explained how "the present position of the [Anti-Bribery] Convention is unstable, and unless forward momentum is recovered, the progress made in the past decade could unravel." Id. at 5. See 2012 Annual Report, supra note 1, at 2-3 (calling for stronger commitment); see also Organisation for Economic Co-operation and Development, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and Related Documents 6 (2011), http : //www.oecd.org/_daf/anti-bribery/ConvCombatBribery_ENG.pdf [hereinafter Anti-Bribery Convention] (detailing Anti-Bribery Convention components and requirements).

(4.) See Anti-Bribery Convention, supra note 3, at 7-12 (listing Anti-Bribery Convention Articles and not one imposes consequences). See also History, OECD, http://www.oecd.org/history (last visited Oct. 30, 2013) (detailing OECD's origins and involvement). The OECD is an international organization founded in 1961. Id. The OECD's expertise stems from its original establishment to help administer reconstruction of Europe after World War II, its ability to stimulate economic progress, and assistance administering world trade. Id.

(5.) See Roberta S. Karmel & Claire R. Kelly, The Hardening of Soft Law in Securities Regulation, 34 Brooklyn J. Int'l L. 883, 916-24 (2009) (explaining rise of Anti-Bribery Convention). In 1976, the "OECD first recognized bribery as a problem in its Guidelines for Multinational Enterprises ("Guidelines") as part of the Declarations and Decisions on International Investment and Multinational Enterprises." Id. at 920. In 1990, anti-bribery efforts were at a standstill. Id. at 921. In 1994, a recommendation referenced the Guidelines and suggested creating a Working Group. Id. In 1996, another recommendation suggested eliminating tax deductibility, while the United States pressured its allies. Id. In 1997, a final recommendation "included a list of 'Agreed Common Elements' and opened the negotiations for the eventual Anti-Bribery Convention." Id. See also 2012 Annual Report, supra note 1, at 2-3 (explaining Convention's vital role in combating bribery). The OECD's Secretary-General, A ngel Gurri'a, explained how "[a]ctive enforcement is the best weapon we have to fight foreign bribery." Id. at 3. For this reason, the Anti-Bribery Convention "is a powerful tool for cleaning up markets." Id. at 2.

(6.) See Geoffrey R. Watson, The OECD Convention on Bribery, American Society of International Law (1998), http://www.asil.org/insights/volume/3/is sue/2/_oecd-convention bribery (assessing Anti-Bribery Convention and its reliance on functional equivalence approach). Functional equivalency is a form of comparative law that provides a flexible framework for nations with distinctive domestic laws to achieve common principles. Id. See also The OECD Convention on Bribery: A Commentary 7-11 (Mark Pieth et al eds., 1997), http: //www.oecd.org/daf/anti-bribery/39200754.pdf [hereinafter Convention Commentaries] (presenting various models for cooperate criminal and non-criminal liability and sanctions). For example, "Article 2 of the [Anti-Bribery Convention] indicates just how mindful the drafters were of national particularities," as indicated by the clause, "in accordance with its legal principles," which "simply recalls the overarching principle under which the [Anti-Bribery Convention] has been drafted, i.e. 'functional equivalence.'" Id. at 12.

(7.) See Indira Carr & Opa Outhwaite, The OECD Anti-Bribery Convention Ten Years On, 5 Manchester J. of Int'l Econ. L. 3, 5 (2008), http://www.surrey.ac.uk/_law/pdf/Corruption/Carr%20-%202008%20 %20The%200ECD%20Anti-Bribery% 20Convention%20Ten%20Years%200n.pdf (examining functional equivalency approach and impact on Anti-Bribery Convention). Corruption on a small and grand scale causes great harm to economic growth and high levels of poverty. Id. at 3-4. See Watson, supra note 6 (arguing functional equivalence fails to level the playing field).

(8.) See Convention Commentaries, supra note 6, at 5 (describing how Anti-Bribery Convention would harmonize criminalization). The OECD text can "be seen as a forerunner of a world-wide harmonisation effort." Id.

(9.) See infra Part II-V (evaluating Anti-Bribery Convention and suggesting prescriptive enforcement).

(10.) See infra Part II (explaining Anti-bribery Convention's creation, methods of enforcement, and concerns regarding commitment and functional equivalency approach).

(11.) See infra Part III (analyzing 2012 Annual Report and illustrating signatories' lack of commitment).

(12.) See infra Part IV (prescribing new method for stronger enforcement by syncing current methods with mandatory methods called hybrid alignment).

(13.) See infra Part V (recognizing Anti-Bribery Convention's success but reiterating that establishing harmony requires prescriptive enforcement methods).

(14.) See Carr & Outhwaite, supra note 7, at 6 (recognizing United States as prime mover for OECD to combat corruption of foreign public officials). In 1976, the U.S. Securities and Exchange Commission (SEC) report revealed the widespread phenomenon of questionable or illegal payments to foreign officials and foreign politicians, which further lead to the passing of the Foreign Corrupt Practices Act (FCPA). Id. The SEC report revealed bribery in the U.S. corporate sector and companies from "chemical, aerospace, pharmaceuticals, and oil and gas sectors." Id. In 1977, the United States passed the FCPA in response to the Lockheed scandal. Id. After the U.S. Lockheed scandal, businesses feared this type of public exposure would substantially damage their reputation and lower market integrity. Id. at 6-7.

(15.) See Philip Urofsky & Danforth Newcomb, Recent Trends and Patterns in FCPA Enforcement 6 (Shearman & Sterling LLP 2011), http://www. shear man.com/~/media/Files/NewsInsights/Publications/2011/01/Shearman--Sterlings-Re cent-Trends-and-Patterns-i_/Files/View-January-2011 -Recent-Trends-and-Patterns in-_/FileAttachment/January-2011-Trends--Patterns.pdf (describing how United States brought most of their bribery cases against international companies). Apparently, the United States "intends to continue using its expansive view of jurisdiction under the FCPA to spur foreign governments to be more proactive--or face the consequence of seeing their domestic corporations hauled into U.S. courts." Id. Some surmise that the United States' focus "seems to be very much on putting pressure on non-U.S. companies to comply with global anti-corruption agreements, particularly when those companies' home countries are less than aggressive in enforcement of their own companies." Id. at 1. See also Carr & Outhwaite, supra note 7, at 7 (promoting adoption of similar legislation in other industrialized countries).

(16.) See Eric C. Chaffee, The Role of the Foreign Corrupt Practices Act and Other Transnational Anti-Corruption Laws in Preventing or Lessening Future Financial Crises, 73 Ohio St. L.J. 1283, 1306-09 (2012) (describing financial market transition from national markets to international markets). Specifically, "[regulation still remain[ed] largely set in the national context, rather than on the international level." Id. at 1306.

(17.) See id. at 1314 (suggesting combating bribery in global financial markets required robust and comprehensive enforcement).

(18.) Id. (explaining impact of globalization on financial markets). Financial market corruption creates costs that "are far-reaching and expensive" and "can also siphon away funds from businesses and prevent or lessen investors' willingness to invest in companies and partake in other activities that support economic growth." Id. at 1313.

(19.) See id. at 1309 (explaining how United States fueled financial market globalization by driving participants beyond its borders).

(20.) See id. at 1294-95 (suggesting Anti-Bribery Convention was driving force in globalizing regulation). A key to successfully prosecuting transnational bribery required "cooperation with the government in the jurisdiction where a bribe was directed." Id. at 1294. A key to successfully monitoring adequate accounting and internal controls required cooperation between regulators of other signatories. See Chaffee, supra note 16, at 1294. A key to strengthen ties between signatories required cooperation in carrying out a "systematic follow-up to monitor and promote the full implementation of this Convention." Id.

(21.) See id. at 1285 (warning about how corrupt government officials may refrain from enforcing regulations). Critics warned, "even if appropriate laws and regulations are passed, corrupt government officials may be unwilling to enforce them." Id. In addition, "[c]orrupt public officials can prevent the passage of necessary financial regulatory reforms and can also prevent the enforcement of laws and regulations that are currently in existence." Id. at 1313.

(22.) See Joseph W. Yockey, Choosing Governance in the FCPA Reform Debate, 38 Iowa J. Corp. L. 325, 361-63 (2013) (criticizing foreign firms for failing to actively adjust domestic laws to successfully implement Anti-Bribery Convention); 2012 Annual Report, supra note 1, at 44 (listing each signatory's approval/acceptance, entry into force of Convention, and entry into force of legislation).

(23.) See Anti-Bribery Convention, supra note 3, at 7 (stating Article 1 Offense of Bribery of Foreign Public Officials); see 2012 Annual Report, supra note 1, at 6 (clarifying international prohibition of bribery). If an illegal briber has been offered, promised, or given bribes, it also does not matter if the briber was entitled to the business advantage that the bribe was intended to secure. Id. The Anti-Bribery Convention established the only legally binding instrument focusing on the supply side of bribery by foreign public officials. Id.

(24.) See Anti-Bribery Convention, supra note 3, at 6 (requiring signatories ratify Anti-Bribery Convention "without derogation affecting" equivalence). The Anti-Bribery Convention recognized "that achieving equivalence among the measures to be taken by the [signatories] is an essential object and purpose of the [Anti-Bribery] Convention." Id. See 2012 Annual Report, supra note 1, at 2 (describing Anti-Bribery Convention's efforts to maintain fair global market). Angel Gurrla, Secretary-General of the Anti-Bribery Convention described the Anti-Bribery Convention as "a cornerstone of the OECD's efforts to create a stronger, cleaner, and fairer world economy." Id. The impact of bribery "distorts markets and raises the cost of doing business." Id. at 6. Overall, it is impossible to maintain "a clean and competitive global economy" with bribery in international business dealings. Id.

(25.) See Carr & Outhwaite, supra note 7, at 22 (suggesting Working Group strives towards homogeneity).

(26.) See 2012 Annual Report, supra note 1, at 6 (explaining purpose of Working Group). In 1994, the Working Group was established to monitor implementation and enforcement of the Anti-Bribery Convention. Id. Transparency International calls the Working Group peer reviews the "gold standard" of monitoring. Id. at 2.

(27.) See id. at 4 (recognizing Working Group's diversity). Mark Pieth, Chair of the Working Group, oversees the rigorous peer review process involving many different signatories across many different boarders. Id. The Working Group consists of representatives from the signatories that meet four times a year and publishes all of its country monitoring reports. Id. at 7. The meetings take place in Paris. 2012 Annual Report, supra note 1, at 7.

(28.) See Carr & Outhwaite, supra note 7, at 22 (evaluating likelihood of achieving harmony combating bribery without uniformity of interpretation).

(29.) See 2012 Annual Report, supra note 1, at 4, 6-7 (explaining purpose of Working Group).

(30.) See Carr & Outhwaite, supra note 7, at 8 (indicating degree of Working Group's communication with diverse leaders).

(31.) See 2012 Annual Report, supra note 1, at 18-21 (listing signatories' evaluations and dates of evaluations).

(32.) See id. at 18-19 (explaining content of peer review evaluations). The signatories' reports are extremely detailed and indicate an exhaustive examination of the Anti-Bribery Convention's implementation "through amendments to the national legislation, analysis of statistical data gathered by criminal agencies, the level of public awareness, details about sanctions, questions of jurisdiction and levels of international co-operation." Carr & Outhwaite, supra note 7, at 8.

(33.) 2012 Annual Report, supra note 1, at 14 (acknowledging OECD Secretariat's efforts to verify accuracy of information shared publicly). The responsibility for the provision and accuracy of information rests solely with the signatories. Id. See also Yockey, supra note 22, at 378 (alluding to fear of damaging business reputation persuades signatories' degree of commitment). Although each signatory values their reputation "to a different degree, most are at least partially concerned about reputation." Id. For example, a signatory "with a reputation for enforcing its anti-corruption laws, particularly on the supply side, will be more likely to attract investment from companies committed to clean business practices." Id.

(34.) See id. at 18-19 (listing three different phases and evaluations conducted during phases).

(35.) See Carr & Outhwaite, supra note 7, at 8 (describing Working Group's responsibilities during Phase 1).

(36.) See id. (explaining Working Group's comparison of legal duties).

(37.) See id. (highlighting Working Group's degree of communication among diverse actors during Phase 2).

(38.) See 2012 Annual Report, supra note 1, at 18-21 (describing Working Group's key enforcement and monitoring efforts during Phase 3 evaluations). Phase 3's primary purpose "is to ensure [signatories'] compliance with the [Anti-Bribery] Convention and implementation of the 2009 Recommendations." Id. at 18. The Working Group's monitoring efforts "should improve [signatories'] capacity to fight bribery in international business transactions by examining their undertakings in this field using a dynamic process of mutual evaluation and peer pressure." Id. at 19.

(39.) See id. at 18 (describing Working Group's plethora of tasks and responsibilities). The Working Group appoints two signatories as lead examiners. Id. Post-approval of the Working Group's executive summaries, the signatories are responsible for conducting an oral follow-up on select recommendations within one year and a written follow-up on all recommendations within two years. Id. at 18, 45-63.

(40.) See Yockey, supra note 22, at 378 (alluding to fear of damaging business reputation persuades signatories' degree of commitment). Although each signatory values their reputation "to a different degree, most are at least partially concerned about reputation." Id. For example, a signatory "with a reputation for enforcing its anticorruption laws, particularly on the supply side, will be more likely to attract investment from companies committed to clean business practices." Id.

(41.) See Chaffee, supra note 16, at 1318 (combating corruption with increasing global financial markets presents new risks and requires active cooperation).

(42.) See 2012 Annual Report, supra note 1, at 6-7 (highlighting how Anti-Bribery Convention consists of leading exporters and lists all signatories). The forty Working Group on Bribery Members account for 80% of world exports and 90% of global outward flows of foreign direct investment. Id. at 7. The six non-members include: Argentina, Brazil, Bulgaria, Colombia, the Russian Federation, and South Africa. Id. See also id. at 44 (listing each country, approval/acceptance, entry into force of Convention, and entry into force of legislation).

(43.) See id. at 6 (noting signatories primary obligations under Convention). Signatories are also required to deny the tax deductibility for such bribes. Id. at 6.

(44.) See Budget, Org. for Econ. Co-Operation & Dev., http://www.oecd.org/ about/budget/ (last visited on Oct. 31, 2013) [hereinafter Budget] (explaining OECD's funding and stating OECD's annual budget). The United States is normally the largest contributor with nearly 22% contribution. Id. Signatories can make "voluntary contributions to financially support outputs in the OECD program of work." Id. See also Member Countries' Budget Contributions, Org. for Econ. Co-Operation & Dev., http://www.oecd.org/about/budget/member-countries-budget-contributions.htm (last visited Feb. 15, 2015) [hereinafter Signatory Contributions] (listing signatories' contributions by percentage). The largest contributors are normally the following signatories: United States, Japan, Germany, France, and United Kingdom. Id. See also OECD Budget Committee, Financial Statements of the Organisation for Economic Co-Operation and Development as 31 December 2012, at 3-7 (2013) http://search.oecd.org/officialdocuments/displaydocumentpdf/?cote=BC(2013)20&doc language=en (listing Convention's financial statements for 2012 with opinion of External Auditor). The Budget consists of the following:
   The Budget is the act whereby Council accords the necessary
   commitment authori[z]ations and makes the necessary appropriations
   for the functioning of the 0rgani[z]ation and the carrying out of
   its activities. It determines the amount of contributions to be
   paid by members after taking into account other resources of the
   Organi[z]ation. All of the Organisation's member countries fund the
   Budget for Part I program[s], accounting for about 50% of the
   consolidated Budget. Their contributions are based on both a
   proportion that is shared equally and a scale proportional to the
   relative size of their economies. Part II Budgets include
   program[s] of interest to a limited number of members and/or
   relating to sectors of activity not covered by Part I. Part II
   program[s] are funded according to a scale of contributions or
   other financing arrangements agreed among the participating
   countries.


Id. at 8.

(45.) See Misty Robinson, Global Approach to Anti-Bribery and Corruption, An Overview: Much Done, But A Lot More To Do. . ., 37 T. Marshall L. Rev. 303, 327 (2012) (encouraging nations support each other). Signatories can "make voluntary contributions to financially support outputs in the OECD progra[m] of work." Id. at 326.

(46.) See Anti-Bribery Convention, supra note 3, at 6 (recognizing government's role in Convention). The Anti-Bribery Convention's preamble recognized "the role of governments in the prevention of solicitation of bribes from individuals and enterprises in international business transactions." Id. See also 2012 Annual Report, supra note 1, at 2-3 (implementing Anti-Bribery Convention relies heavily on signatories' commitment).

(47.) See Anti-Bribery Convention, supra note 3, at 7-12, (listing Articles that lack consequences for signatories failure to comply or properly adapt); 2012 Annual Report, supra note 1, at 7, 18 (listing recommendations that lack mandatory implementation); Convention Commentaries, supra note 6, at 26 (suggesting purpose of functional equivalency to provide flexibility and signatory discretion).

(48.) 2012 Annual Report, supra note 1, at 2-3 (explaining how Anti-Bribery Convention relies on signatories' commitment to implement Anti-Bribery Convention). Angel Gurri'a suggested the Anti-Bribery Convention exists as "a powerful tool for cleaning up markets"; he emphasized how "the [Anti-Bribery] Convention's impact is only as strong as the strength of its countries' commitment to implementing it." Id. at 2-3. The Anti-Bribery Convention's effectiveness "depends on a collective sense of responsibility for fighting bribery and corruption worldwide." Id. at 3.

(49.) See Chaffee, supra note 16, at 1319 (warning of new risks resulting from increasing global markets).

(50.) See id. at 1288 (projecting lack of robust enforcement results in financial crisis). In the absence of "[a] robust and comprehensive system of transnational anticorruption law ... required to create stable global financial markets," signatories should expect "financial crises [to] occur with greater regularity and with greater severity." Id. at 1319.

(51.) See id. at 1318 (suggesting combating corruption internationally requires more work).

(52.) See Karmel & Kelly, supra note 5, at 922 (explaining how and when Anti-Bribery Convention became hard law).

(53.) See 2012 Annual Report, supra note 1, at 2 (explaining rise of anti-bribery norms). Prior to 1997, "only one government had sanctioned foreign bribery; many governments even treated bribe payments to foreign public officials as legitimate business expenses for tax purposes." Id.

(54.) See Karmel & Kelly, supra note 5, at 895 (explaining why OECD used soft law initially). Initially in 1993, the Anti-Bribery Convention was a "perfect soft law venue." Id. at 918.

(55.) See id. at 895 (explaining reliance on soft law rather than hard law for international laws). Unlike hard law, such as treaties, soft law consists of non-binding principles. Id. at 894. Soft laws "less threating nature allows it to develop more swiftly." Id. at 897.

(56.) See id. at 919-20 (explaining how soft law aided initial pre-Anti-Bribery Convention implementation). During the period of relying on soft law, attitudes concerning effect of bribery on developing nations changed in response to United States pressure and public opinions. Karmel & Kelly, supra note 5, at 919. The United States exercised its "moral and diplomatic influence to spur soft law development beyond the fits and starts that occurred in the 1970s." Id. at 924.

(57.) See id. at 922 (suggesting initial acceptance of soft law allowed hard law's acceptance). The Anti-Bribery Convention currently exists as a legally binding hard law instrument that "requires signatories to implement domestic legislation consistent with the [Anti-Bribery] Convention." Id. "[T]he task of negotiating a hard law treaty became much easier" after agreeing to a list of common elements for anti-bribery legislation. Id. The OECD's "persistent use of soft law made the transformation politically attainable." Id. at 924.

(58.) See Karmel & Kelly, supra note 5, at 895-938 (alluding to requirement of prescriptive enforcement for combating bribery internationally).

(59.) See Anti-Bribery Convention, supra note 3, at 6 (requiring signatories ratify Anti-Bribery Convention "without derogation affecting" equivalence). The Anti-Bribery Convention recognized "that achieving equivalence among the measures to be taken by the [signatories] is an essential object and purpose of the [Anti-Bribery] Convention." Id. See also Carr & Outhwaite, supra note 7, at 5 (raising doubt about Convention's ability to achieve harmony combating bribery).

(60.) See Convention Commentaries, supra note 6, at 7-12 (explaining how functional equivalency measures do not require uniformity); Anti-Bribery Convention, supra note 3, at 14 (stating one goal of Convention's signatories). The Anti-Bribery Convention Commentaries explained how "[t]his [Anti-Bribery] Convention seeks to assure a functional equivalence among the measures taken by the [signatories] to sanction bribery of foreign public officials, without requiring uniformity or changes in fundamental principles of a [signatory's] legal system." Id.

(61.) See Anti-Bribery Convention, supra note 3, at 6-12 (listing preamble and seventeen Articles). The seventeen Articles of the Anti-Bribery Convention are as follows: (1) The Offence of Bribery of Foreign Public Officials; (2) Responsibility of Legal Persons; (3) Sanctions; (4) Jurisdiction; (5) Enforcement; (6) Statute of Limitations; (7) Money Laundering; (8) Accounting; (9) Mutual Legal Assistance; (10) Extradition; (11) Responsible Authorities; (12) Monitoring and Follow-Up; (13) Signature and Accession [Entry into Force]; (14) Ratification and Depositary; (15) Entry into Force; (16) Amendment; (17) Withdrawal.

Id. at 6-12.

(62.) See id. at 7-9 (listing and explaining Articles 1, 3, 4, 5, 7, 8, and 12). Article 1 deals with the Offence of Bribery of Foreign Public Officials. Id. at 7. Article 3(3) calls for the forfeiture of proceeds obtained from a bribe. Id. at 8. Article 4 is the Jurisdiction provision. Id. Article 5 is the Enforcement provision. Anti-Bribery Convention, supra note 3, at 9. Accounting is dealt with in Article 8(1). Id. Article 12 provides for Monitoring and Follow-up. Id. at 11. Article 7 deals with Money Laundering. Id. at 9.

(63.) Id. at 7 (defining criminal bribery). Article 1(1) states the following:
   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.


Id. See Anti- Bribery Convention, supra note 3, at 14 (comparing and contrasting "active" versus "passive" bribery and corruption). The Anti-Bribery Convention focused on "active corruption" or "active bribery," meaning the offence committed by the promisor of the bribe, as contrasted with "passive bribery," an offence committed by the recipient of the bribe. Id.

(64.) Anti-Bribery Convention, supra note 3, at 7 (stating Offence of Bribery of Foreign Public Officials requirement of Article 1(2)). In addition, "[a]ttempt and conspiracy to bribe a foreign public official shall be criminal [offenses] to the same extent as attempt and conspiracy to bribe a public official of that [signatory.]" Id.

(65.) Id. (defining bribery terms of Article 1(4)). The Article defines a "foreign public official" as "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 [organization]." Id. The Article defines a "foreign country" as "all levels and subdivisions of government, from national to local." Id. The Article explains that the phrase to " '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 authori[z]ed competence." Id.

(66.) Anti-Bribery Convention, supra note 3, at 8 (focusing on asset forfeiture of sanctions requirement of Article 3(3)). The Article explains how "the bribe and the proceeds of the bribery ... or property the value of which corresponds to such proceeds, are subject to seizure and confiscation" or comparable monetary sanctions. Id.

(67.) See id. (stating Jurisdiction requirement of Article 4(1)). Each signatory must exercise jurisdiction of bribery of a foreign public official if "committed in whole or in part in its territory." Id. If the signatory's domestic laws provides jurisdiction over its nationals for offenses committed abroad, it must establish its jurisdiction according to the same principles for bribery of foreign public officials. Id. When multiple signatories have jurisdiction, one of the involved signatories must request to consult with the other involved signatory to determine which jurisdiction is more appropriate for prosecution. Id. Each signatory must review its current basis for jurisdiction to determine whether it is effective. See Anti-Bribery Convention, supra note 3, at 8. If not effective, signatories must take remedial steps to effectuate. Id.

(68.) See id. (stating Enforcement requirement of Article 5). Enforcing these laws, investigations, and prosecutions shall not be influenced by considerations of national economic interest, "[the] effect upon relations with [other signatories] or the identity of the natural or legal persons involved." Id.

(69.) Id. (showing Accounting requirement of Article 8(1)). Each signatory shall "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...." Id.

(70.) Id. at 11 (stating Monitoring and Follow-up requirement of Article 12). Unless the signatories decided otherwise, implementation "shall be done in the framework of the [Working Group] and according to its terms of reference, or within the framework and terms of reference of any successor to its functions, and [signatories] shall bear the costs of the programme in accordance with the rules applicable to that body." Id.

(71.) See id. at 9 (stating Money Laundering requirement of Article 7). According to the Money Laundering Article, if a signatory "made bribery of its own public official a predicate [offense] for 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." Id.

(72.) See Anti-Bribery Convention, supra note 3, at 7 (explaining Responsibility of Legal Persons provision of Article 2). Article (3)(1)-(2) outlines sanctions. Id. at 8. Article 10 is the Extradition provision. Id. at 10. Accounting is dealt with in Article 8. Id. at 9. The Legal Assistance provision in outlined in Article 9. Id. at 10. Article 6 discusses the Statute of Limitations. Id. at 9.

(73.) See Anti-Bribery Convention, supra note 3, at 7 (stating Responsibility of Legal Persons requirement of Article 2).

(74.) Id. at 8 (providing Sanctions requirement of Article 3(1)). The Sanctions Article stated that "bribery [by] foreign public official[s] shall be punishable by effective, proportionate and dissuasive criminal penalties" and comparable to the signatory's domestic penalties for bribery by public officials. Id. Penalties for natural persons shall "include deprivation of liberty sufficient to enable effective mutual legal assistance and extradition." Id. If the signatory's legal system lacks criminalization for legal persons, non-criminal sanctions including monetary sanctions shall be "effective, proportionate and dissuasive" for bribery of foreign public officials. Id. In addition, a signatory shall consider "additional civil or administrative sanctions for the bribery of a foreign public official." Id.

(75.) See Anti-Bribery Convention, supra note 3, at 9 (showing Accounting requirement of Article 8(1)). The measures taken for accounting prohibitions shall be "within the framework of its laws and regulations regarding maintenance of books and records, financial statement disclosures, and accounting and auditing standards. ..." Id. omissions and falsification penalties shall be "effective, proportionate and dissuasive civil, administrative or criminal...." Id.

(76.) See id. at 10 (stating extradition requirement of Article 10(1)). If a signatory "makes extradition conditional upon the existence of an extradition treaty receives a request for extradition from another [signatory] with which it has no extradition treaty, it may consider this Anti-Bribery Convention to be the legal basis for extradition in respect of the offence of bribery of a foreign public official." Id. If a signatory declines an extradition request "solely on the ground that the person is its national [a signatory] shall submit the case to its competent authorities for ... prosecution." Id. Extradition "is subject to the conditions set out in the domestic law and applicable treaties and arrangements of each [signatory]." See Anti-Bribery Convention, supra note 3, at 10. Where a signatory "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." Id.

(77.) See id. at 10 (providing mutual legal assistance requirement of Article 9(1)). Each signatory shall "provide prompt and effective legal assistance" to other signatories "to the fullest extent possible under its laws and relevant treaties...." Id. The requesting signatory shall be informed by the requested signatory, "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." Id. This is required "for the purpose of criminal investigations and proceedings brought by [signatories] concerning [offenses] within ... [the Anti-Bribery] Convention and for non-criminal proceedings within the scope of this [Anti-Bribery] Convention brought by [signatories] against a legal person." Id. If a signatory "makes mutual legal assistance conditional upon the existence of dual criminality," it only exists "if the [offense] for which the assistance is sought is within the scope of the [Anti-Bribery] Convention." Id.

(78.) Anti-Bribery Convention, supra note 3, at 9 (stating Statute of Limitations requirement).

(79.) See id. at 11 (explaining Responsible Authorities). Article 15 provides the Entry into Force provision. Id. at 12. Article 13 encompasses the Signature and Accession provision, and Article 14 deals with Ratification and Depositary. Id. at 11. Article 16 is the Amendment Article, and Article 17 deals with Withdrawal. Id. at 12.

(80.) Id. at 11 (stating Responsible Authorities requirement). Each signatory must "notify the Secretary-General of the OECD of an authority or authorities responsible for making and receiving requests ... without prejudice to other arrangements between [signatories]." Id.

(81.) Id. at 12 (highlighting Entry into Force requirement). The Anti-Bribery Convention entered into force "on the sixtieth day following the date upon which five of the ten countries which have the ten largest export shares ... which represent by themselves at least sixty per cent of the combined total exports of those ten countries, have deposited their instruments of acceptance, approval, or ratification." See Anti-Bribery Convention, supra note 3, at 12. The Anti-Bribery Convention enters into force on the sixtieth day after the country's deposit of its instrument. Id.

(82.) See id. at 11 (stating Signature and Accession requirement). Specifically, "this [Anti-Bribery] 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." Id. Subsequent to a signatory's entry into force, the Anti-Bribery 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." Id.

(83.) Id. at 11 (describing Ratification and Depositary requirement). The Secretary General "shall serve as Depositary of this Convention." See Anti-Bribery Convention, supra note 3, at 11.

(84.) See id. at 12 (explaining Amendment requirement). Any signatory must communicate an amendment to the other signatories "at least sixty days before convening a meeting ... to consider the proposed amendment." Id.

(85.) See id. (stating Withdrawal requirement). Following a signatory's withdrawal, cooperation must continue between the signatories and the withdrawing signatory "on all requests for assistance or extradition made before the effective date of withdrawal which remain pending." Id. The signatories' withdrawal will "be effective one year after the date of the receipt of the notification." Id.

(86.) See Anti-Bribery Convention, supra note 3, at 4 (clarifying Anti-Bribery Convention Articles by drafting commentaries, recommendations, and guidelines). The following six documents are all relied on to enforce the Anti-Bribery Convention:
   (1) Commentaries on the [Anti-Bribery] Convention; (2)
   Recommendation of Council for Further Combating Bribery of Foreign
   Public Officials in International Business Transactions; (3)
   Recommendation of the Council on Tax Measures for Further Combating
   Bribery of Foreign Public Officials in International Business
   Transactions; (4) Recommendation of the Council On Bribery and
   Officially Supported Export Credits; (5) Recommendation of the
   Development Assistance Committee on Anti-Corruption Proposals for
   Bilateral Aid Procurement; and (6) OECD Guidelines for
   Multinational Enterprises--Section VII.


Id. See Donna C. Boehme & Joseph E. Murphy, International Recognition for Compliance and Ethics Programs: The 2010 OECD Good Practice Guidance on Internal Controls, Ethics and Compliance (2010), as excerpted from Society of Corporate Compliance and Ethics, The Complete Compliance and Ethics Manual (2d ed. 2010), http ://compliancestrate gists.com/csblog/wp-con tent/uploads/2014/04/oecd_excerpted.pdf. (explaining how supplemental documents should demonstrate legal standards). Specifically, signatories should consider the legal effect of the Good Practice Guidance in the following manner:
   although the 2009 OECD Recommendations (to which the Guidance is
   appended) are not legally binding, they are likely to have the same
   significant political implications as the original 1999 OECD
   Anti-bribery Convention, resulting in intense pressure on signatory
   nations to demonstrate their meaningful implementation of those
   agreed guidelines. We believe that wise companies should treat the
   Guidance as a legal standard for two important reasons: first,
   because the Guidance contains smart compliance practices, and
   second, it will likely influence the views of regulators and
   enforcement authorities generally.


Id. at 4.

(87.) See generally Org. for Econ. Co-Operation & Dev., Good Practice Guidance on Internal Controls, Ethics, and Compliance (2010), http : //www .oecd.org/investment/anti-bribery/anti-briberyconvention/44884389.pdf [hereinafter Good Practice Guidance] (providing Good Practice Guidance for businesses). See generally Anti-Bribery Recommendation, supra note 2 (providing targeted measures for implementing Convention).

(88.) See 2012 Annual Report, supra note 1, at 7-8 (explaining purpose of Anti-Bribery Recommendation).
   For example, the Anti-Bribery Recommendation calls on
   [Anti-Bribery] Convention countries to establish whistleblower
   reporting mechanisms and protections for public and private sector
   employees, and to periodically review their policies and approaches
   on small facilitation payments. [Anti-Bribery] Convention countries
   are also recommended to ensure their companies are held to
   appropriate accounting and auditing standards, encourage businesses
   and business [organizations] to adopt stringent ethics and
   anti-bribery compliance programmes and measures, and encourage
   companies to prohibit or discourage the use of small facilitation
   payments ... [Anti-Bribery] Convention countries should also enhance
   cross-border cooperation on foreign bribery investigations and
   prosecutions.


Id. at 7.

(89.) See id. at 8 (declaring value of Good Practice Guidance). The only guidance of its kind adopted at the intergovernmental level comprised of fundamental elements that "make up the heart of any effective anti-corruption compliance programme." Id. See generally Joseph Murphy & Donna Boehme, Commentary on the OECD Good Practice Guidance on Internal Controls, Ethics and Compliance, 9 Rutgers J.L. & Pub. Pol'y 581 (2012) (assessing effectiveness of Good Practice Guidance). See Jon Jordan, The Need for a Comprehensive International Foreign Bribery Compliance Program, Covering A to Z, in an Expanding Global Anti-Bribery Environment, 117 Penn. St. L. Rev. 89, 118 (2012) (recognizing Convention's global reliance on such instruments). The Good Practice Guidance "has generally been endorsed by the signatories to the OECD Anti-Bribery Convention." Id. See Good Practice Guidance, supra note 87, at 1 (detailing how businesses should prepare to prevent bribery involvement). "The OECD Good Practice Guidance contains 12 best practices and procedures that should be implemented in a compliance program." Jordan, supra, at 118.

(90.) Jordan, supra note 89, at 118 (recognizing Convention's global reliance on such instruments). The Good Practice Guidance is "the first and only set of anti-bribery compliance procedures to have received the endorsement of multiple international governments." Id. at 117.

(91.) 2012 Annual Report, supra note 1, at 8 (urging countries to rely on procedures recommended in international guidance for combating bribery). Similarly, companies must enforce a clear and visible anti-bribery policy. Id. at 8. The Secretary-General, Angel Gurri'a, described the Good Practice Guidance as "the most comprehensive guidance ever provided to companies and business organisations by an international organisation" on foreign bribery procedures. Jordan, supra note 89, at 117.

(92.) See 2012 Annual Report, supra note 1, at 8 (motivating private sectors to find methods to actively combat bribery). Regardless of the level of employment, all individuals should have a duty of compliance. Id. In order to ensure corporate compliance, managers should conduct regular communication and provide ongoing training for employees and business partners, "and introduce disciplinary procedures for addressing violations of these measures, as well as measures for positively reinforcing compliance." Id. In addition, the Good Practice Guidance emphasizes a need for "strong, explicit, and visible support by senior management." Id.

(93.) See Convention Commentaries, supra note 6, at 7-12 (explaining functional equivalency measures do not require uniformity). Functional equivalency measures taken by signatories do not require uniformity or changes in fundamental principles of the signatories' legal system. See id. at 12. See also Carr & Outhwaite, supra note 7, at 16 (critiquing Convention's various approaches to imputing fault to companies for bribery). The functional equivalency approach created "a variety of jurisdiction-dependent approaches thus resulting in non-homogeneity." Id. In order "to achieve homogeneity, it may have been better for the OECD to adopt a convention that did not impart notions of flexibility through the endorsement of functional equivalence or built in flexibility." Id. at 22.

(94.) See Carr & Outhwaite, supra note 7, at 14 (suggesting Anti-Bribery Convention addresses lack of clarity through references to business transactions and developments). The Anti-Bribery Convention's core principal of functional equivalence does not require "the same form of words as the [Anti-Bribery] Convention, or even to follow the form of the provisions closely, as long as the measures that are introduced give effect--are functionally equivalent--to those provisions." Id. at 18. Mark Pieth (Chairman of Working Group) stated:
   The [Anti-Bribery] Convention borrows a principle developed in
   comparative law and further develops it. According to the
   functional approach of comparison attention is drawn to the overall
   working of systems rather than individual institutions. The
   assumption is that each legal system has its own logic and is not
   necessarily determined by the legal texts alone. Practices and
   informal rules are part of this approach as well as other aspects
   of the legal system taking over ancillary functions. Therefore the
   focus of comparison would lie on overall effects by a country's
   legal system rather than the individual rules.


Id. at 9-10.

(95.) See id. at 22 (describing usage of functional equivalency). The functional equivalency method should be relied on for "giving access to a variety of sources during the assessment process to gauge how the laws of the [signatory] work and to establish whether a [signatory] is OECD [Anti-Bribery] Convention compliant." Id.

(96.) See Carr & Outhwaite, supra note 7, at 14 (warning about negative impact of functional equivalency on harmonization efforts). A functional equivalency approach "leaves room for a variety of interpretations when a particular sector's inclusion or non-inclusion falls within the penumbra of uncertainty." Id.

(97.) See id. at 18 (acknowledging Anti-Bribery Convention lacks requirement for signatory to enact specific instrument on anti-corruption).

(98.) Id. at 20-21 (explaining Convention's concerns with United Kingdom's adoption of Article 1(4) defining official and use of intermediaries). In the Phase 1 Report,
   In defining a foreign public official, the [United Kingdom's] new
   legislation preserves the terminology employed in the domestic
   context. In essence, the definition's of "agent," "principal,"
   "public office," and "public authorities," from which the concept
   of "public official" must be derived, are simply transposed by
   territorial extension so that they must now respectively be
   interpreted in a "foreign" context in the light of the expanded
   scope of the offence. The Working Group considers that such an
   approach may make a homogenous application of the [Anti-Bribery]
   Convention among the Parties more difficult.


Id. at 20.

(99.) Carr & Outhwaite, supra note 7, at 21 (suggesting conflicting interpretations means lack of appreciation). The Working Group failed to appreciate that each "legal system has its own logic" after appearing dissatisfied with the United Kingdom's legal framework. Id. at 21-22.

(100.) Id. at 21 (critiquing functional equivalency's impact and how conflicting interpretations prevent implementation). The Working Group's "insistence that a [signatory] follow the form of the OECD [Anti-Bribery] Convention closely suggests that its impact, if any, is minimal." Id. The Working Group's response "in respect of the UK anti-corruption law's compliance with the [Anti-Bribery] Convention does raise the question of whether functional equivalence plays any role at all in practice." Id.

(101.) See id. at 22 (illustrating how ambiguity creates resistance to implement Anti-Bribery Convention's requirements).

(102.) See generally Cecily Rose, The Corner House Case and the Incomplete Incorporation of the OECD Anti-Bribery Convention in the United Kingdom, 20 Tul. J. Int'l & Comp. L. 351 (2012) (explaining how United Kingdom disregarded interpretation of Article 5 of Convention). Notably, "the OECD's press release refrain[ed] from offering an interpretation of [A]rticle 5, but it also did not declare that the House of Lords' decision was inconsistent with [A]rticle 5 of the Convention." Id. at 375. Specifically, the "press release's most condemnatory passage noted that the Working Group 'maintains its serious concerns as to whether the decision was consistent with the OECD Anti-Bribery Convention.'" Id. As a result, the "OECD's response to the House of the Lords' decision in this case illustrates the general softness of its approach." Id.

(103.) See Carr & Outhwaite, supra note 7, at 23 (stating United Kingdom's reasoning for initial investigation). The United Kingdom's investigation involved "suspected false accounting" in relation to deals for supplying defense equipment to Saudi Arabia by British Aerospace Systems PLC (BAE). Id.

(104.) See Anti-Bribery Convention, supra note 3, at 9 (stating Article 5 of Anti-Bribery Convention); Carr & Outhwaite, supra note 7, at 24-25 (acknowledging Convention's ambiguity and whether termination resulted from security concerns or due to interstate relations).

(105.) See Rose, supra note 102, at 382 (explaining why United Kingdom terminated investigation and how House of Lords disregarded interpretation of Article 5). In response to the media and public pressure concerning the potential loss of jobs and revenue if Saudi Arabia discontinued equipment contracts, the SFO suspended its investigation into BAE System's suspected bribery. Carr & Outhwaite, supra note 7, at 23-25 (providing reasoning why United Kingdom did not implement Article 5). The House of Lords argued the inappropriateness of interpreting Article 5 in the absence of an established body of jurisprudence on the subject; however, such case law will never exist without the national court's aide. See Rose, supra, at 371.

(106.) Rose, supra note 102, at 351 (passing of opportunity to interpret Anti-Bribery Convention undercut U.K. commitment to its legal obligations under Convention); see also Anti-Bribery Convention, supra note 3, at 6 (recognizing government's role in Convention). The Anti-Bribery Convention's preamble recognized "the role of government in the prevention of solicitation of bribes from individuals and enterprises in international business transactions." Id.

(107.) Carr & Outhwaite, supra note 7, at 19-20 (describing U.K. resistance to alter domestic laws). The United Kingdom failed to incorporate Article 5 of the Anti-Bribery Convention in their United Kingdom Bribery Act 2010. Rose, supra note 102, at 351.

(108.) See Transparency International, supra note 3, at 5 (assessing Convention's effectiveness and implementation). Transparency International indicated, "that the principal cause of lagging enforcement is lack of political commitment by government leaders." Id.

(109.) See id. at 4-5 (expressing concern for signatories without little or no enforcement). Transparency International noted how "[i]t is particularly disturbing that there are still twenty-one [signatories] with little or no enforcement a decade after the [Anti-Bribery] Convention entered into force." Id. at 5.

(110.) See infra Part III.C.1 (suggesting signatories' concentrated conviction data resulted from Convention's ineffectiveness); infra Part III.C.2 (proposing signatories' areas of improvement containing Anti-Bribery Convention matters resulted from signatories' lack of commitment).

(111.) Jordan, supra note 89, at 117 (expressing claim); see infra Part III.C.1 (noting majority of signatories lack convictions).

(112.) 2012 Annual Report, supra note 1, at 9 (listing number convictions and imprisonments by signatories). After fifteen years, eighty-four individuals of the 306 companies faced with criminal sanctions for bribery of foreign public officials in international business deals have gone to jail. Id. at 6, 9. The Working Group enforcement data represents data collected from thirty-nine signatories. Id. at n.1. "The OECD Secretariat has endeavored to verify the accuracy of this information, including through the Phase 3 evaluations completed to date." Id. at 14. "[T]he responsibility for the provision[s] and accuracy of information rests solely with the individual [signatories]." Id.

(113.) See id. at 13 (highlighting United States, Hungary, Germany, Korea, and Japan as leaders in convictions). The mandatory data consists of criminal convictions and acquittals. Id. From 1999 to December 2012, the United States, Hungary, Germany, Korea, and Japan had the most number of individuals and legal persons sanctioned or acquitted. See 2012 Annual Report, supra note 1, at 13. United States sanctioned sixty-two individuals and twenty-nine legal persons, while only one individual was acquitted for a total of ninety criminal convictions. Id. Hungary sanctioned twenty-six individuals and only two individuals were acquitted for a total of twenty-four criminal convictions. Id. Germany sanctioned twenty-one individuals only for a total of twenty-one criminal convictions. Id. Korea sanctioned sixteen individuals and four legal persons for a total of twenty criminal convictions. Id. Japan sanctioned six individuals and one legal person for a total of seven criminal convictions. Id. In addition to submitting mandatory data, signatories may also voluntarily submit civil sanctions. See 2012 Annual Report, supra note 1, at 13. From 1999 to December 2012, the only three signatories that provided information on administrative and civil cases were: Germany, Japan, and United States. Id. Germany sanctioned one individual and seven legal persons totaling eight civil resolutions. Id. Japan only sanctioned 1 legal person for a civil resolution. Id. The United States sanctioned 41 individuals and 55 legal persons for a total of 96 civil resolutions. Id. See also Urofsky & Newcomb, supra note 15, at 6 (recognizing how majority of U.S. cases involve foreign bribes contrary to past conviction jurisdiction). Prior to the FCPA and the Convention, the United States had very few non-U.S. prosecutions for international bribery. Id.

(114.) See 2012 Annual Report, supra note 1, at 13 (listing signatories with fewer convictions). The middle group of seven signatories consist of: Bulgaria, Canada, France, Italy, the United Kingdom, Norway, and Switzerland. Id. The bottom twenty-four signatories without any convictions consist of: Argentina, Australia, Austria, Brazil, Chile, Czech Republic, Denmark, Estonia, Finland, Greece, Iceland, Ireland, Israel, Luxembourg, Mexico, Netherlands, New Zealand, Poland, Portugal, Slovak Republic, Slovenia, South Africa, Spain, and Turkey. Id.

(115.) See generally 2012 Annual Report, supra note 1 (realizing more needs to be done to level playing field and improve effectiveness of Convention); Paul Hannon, Few Nations are Punishing Bribery, Wall St. J., Apr. 21, 2011 (noting lack of bribery enforcement); Jordan, supra note 89, at 107-108 (recognizing need for collaboration internationally). The Secretary-General Angel Gurri'a demanded, "[C]learer signs that all countries are committing the political leadership and resources that effective enforcement requires" for internationally criminalizing bribery by foreign public officials. Jordan, supra, at 107.

(116.) See generally 2012 Annual Report, supra note 1 (opining signatories' lack of progress implementing and enforcing Convention).

(117.) See id. at 20, 45-63 (focusing on only ten signatories to assess implementation and enforcement mechanisms). In 2012, the Working Group evaluated only ten signatories: Australia, Austria, France, Greece, Hungary, Netherlands, Slovak Republic, Spain, Sweden, and the United Kingdom. Id. at 20. Finland, United States, and Iceland had a Phase 3 review by the Working Group in 2010. Id. Germany, Bulgaria, Canada, Norway, Luxemburg, Mexico, Korea, Switzerland, Italy, and Japan had a Phase 3 review by the Working Group in 2011. Id. Czech Republic, Denmark, Poland, Portugal, Belgium, New Zealand, Ireland, Slovenia, and South Africa will have a Phase 3 review by the Working Group in 2013. Id. at 20-21. Chile, Turkey, Brazil, Estonia, Argentina, and Israel will have a Phase 3 review by the Working Group in 2014. 2012 Annual Report, supra note 1, at 21.

(118.) Id. at 18-19 (explaining Working Group's purpose in Phase 3 review). The Phase 3 review should improve signatories' "capacity to fight bribery in international business transactions by examining their undertakings in this field using a dynamic process of mutual evaluation and peer pressure." Id. at 19.

(119.) Id. at 4 (listing issues involving twelve signatories in 2012 Annual Report). The "big issues" consisted of issues like:
   increasing awareness in the private and public sectors, holding
   companies liable for the crime of foreign bribery; sharing
   information across borders in foreign bribery investigations via
   mutual legal assistance; and ensuring that, as per the Convention,
   sanctions are "effective, proportionate, and dissuasive" and that
   countries can seize and confiscate bribes and the proceeds of
   bribery.


Id. at 4.

(120.) Id. at 45-63 (examining Executive Summaries, which lack justification for cause of signatories' issues).

(121.) See 2012 Annual Report, supra note 1, at 4, 45-63 (listing "big issues" for ten signatories in Phase 3 review and illustrating signatories' areas of improvement). Various fields concerning signatories' ratification status are identified to include deposit of ratification/acceptance/approval, entry into force of Convention, and legislation and entry into force of implementing legislation. Id. at 44.

(122.) See Yockey, supra note 22, at 359 (criticizing signatories' delayed implementation). Specifically, twenty-one signatories "have made little or no effort at enforcement." Id. Critics argue the lack of implementation continues to exist because "enforcement has not always followed adoption." Id. at 329.

(123.) See id. at 45-63 (listing signatories' areas of improvement consisting of provision not yet implemented); Anti-Bribery Convention, supra note 3, at 6 (requiring signatories ratify Anti-Bribery Convention "without derogation affecting" equivalence). The Anti-Bribery Convention recognized "that achieving equivalence among the measures to be taken by the [signatories] is an essential object and purpose of the Convention." Anti-Bribery Convention, supra.

(124.) See 2012 Annual Report, supra note 1, at 2-3 (explaining strength of Anti-Bribery Convention relies on strength of signatories' commitment); Chaffee, supra note 16, at 1318 (suggesting internationally combating bribery requires more work beyond establishing legislation).

(125.) See Anti-Bribery Convention, supra note 3, at 6 (recognizing multilateral cooperation by signatories). The Anti-Bribery Convention's preamble recognized "that achieving progress in this field requires not only efforts on a national level but also multilateral co-operation, monitoring and follow-up." Id. See also Jordan, supra note 89, at 107-08 (explaining need for signatories' collaboration to effectively combat bribery); Chaffee, supra note 16, at 1319 (warning about new risks of bribery due to expanding global markets).

(126.) See Yockey, supra note 22, at 378 (alluding to signatories' commitment is persuaded by fear of damaging business reputations); see also Anti-Bribery Convention, supra note 3, at 6-12 (illustrating how Anti-Bribery Convention lacks any consequences for failure to comply with Anti-Bribery Convention obligations).

(127.) See Karmel & Kelly, supra note 5, at 924 (suggesting signatories anticipated content of Anti-Bribery Convention because hard law relied on soft law). Specifically, the OECD's "persistent use of soft law made the transformation politically attainable." Id. at 924. See also Anti-Bribery Convention, supra note 3, at 20-29 (detailing expectations under Recommendations and Good Practice Guidance).

(128.) 2012 Annual Report, supra note 1, at 45-63 (listing areas of improvement involving Anti-Bribery Convention, recommendation, and good practice guidance).

(129.) See Anti-Bribery Convention, supra note 3, at 6 (requesting conformity with recommendations). The Anti-Bribery Convention's preamble required signatories to conform "with the agreed common elements set out in that Recommendation." Id. See also Jordan, supra note 89, at 117-118 (declaring OECD Good Practice Guidance as best source of guidance on procedures for compliance program); Boehme & Murphy, supra note 86, at 4 (explaining how supplemental documents should be viewed as legal standards); Anti-Bribery Convention, supra note 3, at 6-12 (listing Articles of Anti-Bribery Convention that were ratified by signatories). The Anti-Bribery Convention has accompanying supplemental resources such as Recommendations and Good Practice Guidance. Anti-Bribery Convention, supra, at 13-41.

(130.) 2012 Annual Report, supra note 1, at 45-63 (listing ten signatories' executive summaries and focusing on areas of improvement).

(131.) Id. at 51-52 (listing Greece's areas of improvement). The Anti-Bribery Convention matter involved improving mutual legal assistance. Id. at 52. The four Recommendation matters consisted of: (1) improving investigation and prosecution, (2) ensuring competent authorities, (3) eliminate duplicate statutory provision, and (4) implementing whistleblower protection. Id. at 51-52. The three Good Practice Guidance matters suggested: (1) improving ability to detect bribery, (2) increasing awareness in private sectors, and (3) clarifying types of assistance. Id. at 51-52.

(132.) Id. at 45-46 (listing Australia's areas of improvement). The two areas of improvement relating to the Anti-Bribery Convention demanded an increase in maximum sanctions against legal persons and harmonizing record-keeping requirements for facilitation payments in tax legislation with those of the Criminal Code Act. 2012 Annual Report, supra note 1, at 46. Reporting requirements for bribery "should apply equally to the public service and independent statutory authorities." Id. The three areas of improvement relating to the Recommendations demanded: (1) sufficient resources to prosecute, (2) increase awareness about the difference between a bribe and a facilitation payment, and (3) strengthen whistleblower protection in public and private sectors. Id. at 45-46.

(133.) Id. at 46-48 (listing Austria's areas of improvement). The five areas of improvement relating to the Anti-Bribery Convention demanded the following: (1) clarify corporate liability, (2) increase maximum sanctions, (3) monitor use of intermediaries to bribe on behalf of companies and natural persons, (4) improve access to bank information (prohibit bank secrecy in response to court orders), and (5) ensure investigations and prosecutions are not influenced by considerations prohibited in Article 5. Id. at 47.

(134.) Id. at 52-53 (listing Hungary's areas of improvement). The Anti-Bribery Convention matter involved lengthening the statute of limitations. Id. at 53. The three Recommendation matters demanded: (1) strengthening enforcement, (2) hiring specialized prosecutors, and (3) implementing whistleblower protection. 2012 Annual Report, supra note 1, at 53. The three Good Practice Guidance matters suggested: (1) improving reporting requirements, (2) targeting awareness, and (3) proactively discovering suspicions. Id. at 53.

(135.) Id. at 55-57 (listing Slovak Republic's areas of improvement). The two Anti-Bribery Convention matters involved providing adequate confiscation and establishing liability of person. Id. at 56-57. The two Good Practice Guidance matters suggested improving reporting requirements and targeting awareness. Id. at 56-57.

(136.) Id. at 60-62 (listing Sweden's areas of improvement). The two Anti-Bribery Convention matters involved amending the "corporate fines" framework to include all lower-level employees, intermediaries, and third-parties; and increasing maximum sanctions. 2012 Annual Report, supra note 1, at 60-61. The three Recommendation matters demanded: (1) diligent investigations, (2) ensuring adequate resources, and (3) ensuring adequate specialized training for a new police unit. Id. at 61. The three Good Practice Guidance matters suggested: (1) increase awareness, (2) increase public support for investigating, and (3) improve detection of bribery by its anti-money laundering system. Id.

(137.) Id. at 49-50 (listing France's areas of improvement). The areas of improvement relating to the Anti-Bribery Convention demanded non-avoidance of criminal liability for companies and subsidiaries, increased sanctions, and greater independence political power and compliance with Article 5. Id. at 49-50. The four Recommendation matters demanded removal of dual criminality (limitation), providing more resources, providing investigative resources, and improving law enforcement reaction. Id. at 49-50. The two Good Practice Guidance matters suggested were encouraging reporting and classifying documents. 2012 Annual Report, supra note 1, at 50.

(138.) Id. at 58-60 (listing Spain's entry dates, areas of improvement, and achievements). The four Anti-Bribery Convention matters involved were harmonizing sanctions, implementing confiscation measures, enacting uniform limitation period, and implementing explicit prohibition on tax deductibility. Id. at 59. The one Recommendation matter demanded implementation of whistleblower protection. Id. The one Good Practice Guidance matter suggested improving reporting of cases. Id.

(139.) Id. at 53-55 (listing Netherland's areas of improvement). The Anti-Bribery Convention matter involved increasing pecuniary sanctions. See Anti-Bribery Convention, supra note 3, at 54. The two Recommendation matters demanded providing adequate resources to law enforcement and increasing staffing. Id.

(140.) Id. at 62-63 (listing United Kingdom's areas of improvement). The two Anti-Bribery Convention matters involved adopting a roadmap for remedying extension to United Kingdom's Overseas Territories and continuing mutual legal assistance. Id. at 62-63. The two Recommendation matters demanded clarification of zero-tolerance facilitation payments and prohibition of confidentiality agreements that prevent disclosure of key information about settled cases. Id. at 62. The two Good Practice Guidance matters suggested increasing awareness and making transparent and defined process of giving advice to companies and accepting self-reports of wrongdoing. Id. at 62-63.

(141.) 2012 Annual Report, supra note 1, at 45-63 (listing areas of improvement involving Anti-Bribery Convention, recommendation, and good practice guidance for individual countries).

(142.) See id. at 45-63 (illustrating potential correlation between delayed implementation and low conviction rates); Transparency International, supra note 3, at 12-13 (suggesting lack of commitment resulted in Convention's ineffectiveness and lack of progress).

(143.) 2012 Annual Report, supra note 1, at 44, 51-52 (listing Greece's entry dates and progress combating bribery). Greece's approval was February 5, 1999; its entry into force of the Anti-Bribery Convention was February 15, 1999; and its entry into force of implementing legislation was December 1, 1998. Id. at 44.

(144.) Id. at 44 (listing Australia, Austria, Hungary, Slovak Republic, and Sweden's entry dates). Australia's approval was October 19, 1999; its entry into force of the Anti-Bribery Convention was December 18, 1999; and its entry into force of implementing legislation was December 17, 1999. Id. Austria's approval was May 20, 1999; its entry into force of the Anti-Bribery Convention was July 19, 1999; and its entry into force of implementing legislation was October 1, 1998. Id. Hungary's approval was December 4, 1998; its entry into force of the Anti-Bribery Convention was February 15, 1999; and its entry into force of implementing legislation was March 1, 1999. Id. Slovak Republic's approval was September 24, 1999, its entry into force of the Anti-Bribery Convention was November 23, 1999; and its entry into force of implementing legislation was November 1, 1999. 2012 Annual Report, supra note 1, at 44. Sweden's approval was June 8, 1999; its entry into force of the Anti-Bribery Convention was August 7, 1999; and its entry into force of implementing legislation was July 1, 1999. Id.

(145.) Id. at 45 (expressing concern regarding Australia's overall enforcement). The Working Group "has serious concerns that overall enforcement of the foreign bribery offence to date has been extremely low." Id. Out of Australia's twenty-eight referred bribery cases, twenty-one were concluded without charges. Id. The Working Group suggested Australia take sufficient steps to avoid prematurely closing case referrals and strengthen pre-investigative stage by seeking information from diverse resources. Id.

(146.) 2012 Annual Report, supra note 1, at 46-48 (listing Austria's progress combating bribery).

(147.) Id. at 52-53 (acknowledging Hungary's progress combating bribery).

(148.) Id. at 55-57 (summarizing Slovak Republic's progress combating bribery).

(149.) Id. at 60-62 (indicating Sweden's progress combating bribery).

(150.) Id. at 44 (declaring France and Spain's entry into force dates). France's approval was July 31, 2000, and its entry into force of the Anti-Bribery Convention and implementing legislation was September 29, 2000. Id. Spain's approval was January 14, 2000; its entry into force of the Anti-Bribery Convention was March 14, 2000; and its entry into force of implementing legislation was February 2, 2000. See Anti-Bribery Convention, supra note 3, at 44.

(151.) Id. at 49-50 (highlighting France's progress combating bribery).

(152.) Id. at 58-60 (recognizing Spain's progress combating bribery).

(153.) Id. at 44 (tracing Netherland's entry into force dates). Netherlands' approval was January 12, 2001; its entry into force of the Anti-Bribery Convention was March 13, 2001; and its entry into force of implementing legislation was February 1, 2001. Id.

(154.) Id. at 53-55 (noting Netherland's progress combating bribery).

(155.) See Anti-Bribery Convention, supra note 3, at 44 (listing United Kingdom's entry into force dates). The United Kingdom's approval was December 14, 1998; its entry into force of the Anti-Bribery Convention was February 15, 1999; and its entry into force of implementing legislation was February 14, 2002. Id.

(156.) Id. at 62-63 (indicating United Kingdom's progress combating bribery).

(157.) Id. at 45-63 (highlighting ten signatories' progress combating bribery).

(158.) See 2012 Annual Report, supra note 1, at 4 (listing "big issues" resulting from ten signatories' Phase 3 reviews but lacking justification for persisting complications).

(159.) See Yockey, supra note 22, at 358 (suggesting lack of effective enforcement results from signatories' and political leaders' lack of initiative); Transparency International, supra note 3, at 5 (noting Convention's ineffectiveness and potential inability to combat bribery in future). "A 2009 survey by Transparency International found that 14 non-U.S. signatories to the OECD [Anti-Bribery] Convention have enforced their anti-corruption laws as evidenced by prosecutions or investigations, but only three from this group--Germany, Norway, and Switzerland--are described as having a track record of 'active' enforcement." Yockey, supra, at 358-59. "Twenty-one ratifying states have made little or no effort at enforcement." Id. at 359. Critics argue the lack of implementation continues to exist because "enforcement has not always followed adoption." Id. at 329. Transparency International suggests the Anti-Bribery Convention has yet to reach "the point at which the prohibition of foreign bribery is consistently enforced," resulting mainly in a "lack of political commitment by government leaders." Id. at 358. See also 2012 Annual Report, supra note 1, at 45-63 (affirming unsatisfactory results of signatories legislation implementation).

(160.) See Convention Commentaries, supra note 6, at 7-12 (illustrating how functional equivalency approach does not require uniformity); Carr & Outhwaite, supra note 7, at 14 (explaining Convention's core principal of functional equivalency does not require signatories to follow provisions closely); see also 2012 Annual Report, supra note 1, at 44 (listing signatories' entry dates).

(161.) See Watson, supra note 6 (defining functional equivalency and its flexible framework).

(162.) See Transparency International, supra note 3, at 5 (noting how Anti-Bribery Convention has not reached consistent enforcement); Carr & Outhwaite, supra note 7, at 8-9 (explaining how functional equivalency should be used only for assessments and determining compliance).

(163.) See Transparency International, supra note 3, at 5 (recognizing lack of political commitment caused Convention's lack of progress and loss of momentum); Rose, supra note 102, at 371, 376 (suggesting passing of opportunity to interpret Anti-Bribery Convention undercut United Kingdom's commitment to Convention).

(164.) See Carr & Outhwaite, supra note 7, at 18-22 (questioning whether functional equivalency approach plays any role at all in Convention's enforcement). The Working Group's response "in respect of the [United Kingdom] anti-corruption law's compliance with the [Anti-Bribery] Convention does raise the question of whether functional equivalency plays any role at all in practice." Id. at 21.

(165.) See id. at 24-26 (providing reasoning why United Kingdom's failure to uphold Article 5 of Anti-Bribery Convention was justified and acceptable). In addition, "the Working Group doubts that [UK's actions since Phase 2 Report] will be useful with regard to UK companies that engage in bribery until the law on the liability of legal persons (companies) for foreign bribery is modified." Id. at 16.

(166.) See Transparency International, supra note 3, at 3 (warning continued lack of enforcement exists as danger signal because Anti-Bribery Convention depends on collective commitment); 2012 Annual Report, supra note 1, at 44 (listing signatories' ratification and entry dates). The Anti-Bribery Convention existed as only international regulation targeting supply-side of bribery. 2012 Annual Report, supra, at 6.

(167.) See Transparency International, supra note 3, at 5-7 (listing alternative methods to resolve Anti-Bribery Convention's ineffectiveness).

(168.) See Chaffee, supra note 16, at 1313-14 (recognizing new risks and costs associated with combating bribery within global financial markets); see also Transparency International, supra note 3, at 5 (indicating reasons for Convention's ineffectiveness).

(169.) 2012 Annual Report, supra note 1, at 44 (listing signatories' ratification and entry into force dates).

(170.) See Karmel & Kelly, supra note 5, at 922 (explaining how initial soft law provided opportunity for signatories' acceptance); 2012 Annual Report, supra note 1, at 7, 44 (highlighting how Anti-Bribery Convention consists of leading exporters and lists all signatories and entry into force dates); see also Robinson, supra note 45, at 325-26 (encouraging signatories to make voluntary contributions to support other countries).

(171.) See 2012 Annual Report, supra note 1, at 45-63 (providing signatories' executive summaries with areas of improvement); Transparency International, supra note 3, at 5 (describing Convention's loss of momentum).

(172.) See Transparency International, supra note 3, at 5 (explaining causes for Convention's ineffectiveness).

(173.) See 2012 Annual Report, supra note 1, at 45-63 (listing signatories' executive summaries with areas' of improvement). See generally Transparency International, supra note 3 (assessing Convention's enforcement data for period ending in 2010).

(174.) See id at 5-7 (recommending new methods for resolving Convention's discrepancies); Chaffee, supra note 16, at 1287-88 (projecting lack of robust enforcement will result in financial crises). In the absence of a "robust and comprehensive global system of transnational anti-corruption law," signatories should expect "financial crises [to] occur with greater regularity and with greater severity." Chaffee, supra, at 1289.

(175.) See Chaffee, supra note 16, at 1313 (warning about new risks from expanding global financial markets).

(176.) See id. (noting how corrupt public officials may prevent necessary financial regulatory reforms); Robinson, supra note 45, at 327 (encouraging nations support each other); 2012 Annual Report, supra note 1, at 2-3 (explaining how Anti-Bribery Convention relied on signatories' commitment to implement Anti-Bribery Convention).

(177.) See infra Part IV.B (proposing stronger enforcement methods).

(178.) See Carr & Outhwaite, supra note 7, at 16 (critiquing Convention's approach to imputing fault for bribery). The functional equivalency approach "leaves room for a variety of interpretations when a particular sector's inclusion or non-inclusion falls within the penumbra of uncertainty." Id. at 14.

(179.) See generally Convention Commentaries, supra note 6 (reiterating how functional equivalence does not require uniformity or changes in fundamental practices).

(180.) But see Carr & Outhwaite, supra note 7, at 21 (questioning reliance on functional equivalence). The Working Group's response "in respect of the [U.K.] anti corruption law's compliance with the [Anti-Bribery] Convention does raise the question of whether functional equivalence plays any role at all in practice." Id. The Working Group's "insistence that a [signatory] follow the form of the OECD [Anti-Bribery] Convention closely strongly suggests that its impact, if any, is minimal." Id.

(181.) See Transparency International, supra note 3, at 5 (suggesting continued delayed implementation will unravel progress).

(182.) See Karmel & Kelly, supra note 5, at 918-19 (suggesting soft law was perfect venue to aide initial pre-Anti-Bribery Convention implementation); Transparency International, supra note 3, at 5 (explaining how signatories' loss of momentum was caused by lack of political commitment); 2012 Annual Report, supra note 1, at 2-3 (explaining how Convention's strength is only as strong as signatories' commitment).

(183.) See Carr & Outhwaite, supra note 7, at 22 (explaining how functional equivalency should be used only for assessments and determining compliance). Specifically, the functional equivalency approach method should be relied on for "giving access to a variety of sources during the assessment process to gauge how the laws of the [signatory] work and to establish whether a [signatory] is OECD [Anti-Bribery] Convention compliant." Id.

(184.) See id. (suggesting functional equivalency's usage for gathering diverse information to understand domestic laws and determining compliance).

(185.) See 2012 Annual Report, supra note 1, at 45-63 (listing ten signatories' areas of improvement).

(186.) See Karmel & Kelly, supra note 5, at 918-19 (suggesting soft law in OECD was perfect venue to aide initial pre-Anti-Bribery Convention implementation).

(187.) See id. at 895-938 (explaining transition from soft law to hard binding law).

(188.) See Anti-Bribery Convention, supra note 3, at 6 (requiring signatories ratify Anti-Bribery Convention "without derogations affecting" equivalence). The Convention recognized "that achieving equivalence among the measures to be taken by the [signatories] is an essential object and purpose of the Convention." Id.

(189.) See 2012 Annual Report, supra note 1, at 45-63 (listing areas of improvement for ten signatories to implement).

(190.) See Anti-Bribery Convention, supra note 3, at 6 (requiring signatories ratify Anti-Bribery Convention "without derogation affecting" equivalence). The Anti-Bribery Convention' recognized "that achieving equivalence among the measures to be taken by the [signatories] is an essential object and purpose of the Convention." Id. See also Rose, supra note 102, at 376 (explaining when United Kingdom passed opportunity to interpret Article 5 resulted in undercutting Convention).

(191.) See 2012 Annual Report, supra note 1, at 45-63 (listing Phase 3 executive summaries' areas of improvement for ten signatories to implement); Jordan, supra note 89, at 118 (explaining global reliance on all Anti-Bribery Convention documents); Boehme & Murphy, supra note 86, at 4 (explaining how supplemental documents should be viewed as legal standards). See generally Anti-Bribery Convention, supra note 3 (listing all Anti-Bribery Convention documents for implementation and enforcement).

(192.) See 2012 Annual Report, supra note 1, at 18-19 (explaining content of peer review evaluations). The signatories' reports are "extremely detailed and indicate an exhaustive examination of the implementation of the [Anti-Bribery] Convention through amendments to the national legislation, analysis of statistical data gathered by criminal agencies, the level of public awareness, details about sanctions, questions of jurisdiction and levels of international co-operation." Carr & Outhwaite, supra note 7, at 8.

(193.) 2012 Annual Report, supra note 1, at 4 (describing Working Group's diverse leadership and initiatives). Mark Pieth, Chair of the Working Group, oversees the rigorous peer review process involving many different issues across many different borders. Id.

(194.) See id. at 6-8 (describing Working Group's time frames). The Working Group consists of representatives from the signatories that meet four times a year and publishes all of its country monitoring reports. Id. at 7. The meetings take place in Paris. Id.

(195.) See Carr & Outhwaite, supra note 7, at 22 (evaluating likelihood of achieving harmony combating bribery without uniformity of interpretation).

(196.) See 2012 Annual Report, supra note 1, at 6 (explaining how Working Group was established to monitor implementation and enforcement of Convention). Transparency International calls the Working Group peer reviews the "gold standard" of monitoring. Id. at 2.

(197.) See id. at 4 (distinguishing Phase 3 as toughest round of evaluations).

(198.) See id. at 18-19 (explaining content of peer review evaluations). The signatories' reports are "extremely detailed and indicate an exhaustive examination of the implementation of the [Anti-Bribery] Convention through amendments to the national legislation, analysis of statistical data gathered by criminal agencies, the level of public awareness, details about sanctions, questions of jurisdiction, and levels of international co-operation." Carr & Outhwaite, supra note 7, at 8.

(199.) See id.2012 Annual Report, supra note 1, at 18-19 (describing Phase 3 peer review process and reports generated by Working Group).

(200.) See id. (listing different phases and evaluations conducted during each phase).

(201.) See id. at 45-63 (stating areas of improvement for ten signatories to implement); Carr & Outhwaite, supra note 7, at 8 (describing Working Group's diverse leadership and different phases).

(202.) Contra 2012 Annual Report, supra note 1, at 45-63 (illustrating Working Group's evaluations based on non-mandatory implementations).

(203.) See Anti-Bribery Convention, supra note 3, at 12 (pointing to Article 17 withdrawal of Anti-Bribery Convention).

(204.) See id. at 7-12 (listing Anti-Bribery Convention's ambiguous provisions which resulted in conflicting interpretations).

(205.) See id. at 14-41 (providing supplemental resources for signatories' implementation and enforcement); supra notes 6-7 and accompanying text (critiquing Convention's functional equivalency approach).

(206.) See Anti-Bribery Convention, supra note 3, at 7-12 (enumerating and defining Anti-Bribery Convention's Articles). The Anti-Bribery Convention has supplemental resources for implementation and enforcement. Id. at 14-41.

(207.) See Chaffee, supra note 16, at 1313-14 (suggesting combating bribery in "global financial markets" requires "robust and comprehensive" enforcement); Yockey, supra note 22, at 378 (alluding to fear of damaging business reputations as cause of signatories' lack of commitment); see also Anti-Bribery Convention, supra note 3, at 7-12 (illustrating lack of any consequences for failure to obey Convention's obligations).

(208.) See Anti-Bribery Convention, supra note 3, at 7-12 (illustrating lack of any consequences for failure to obey Convention's obligations). Supplemental materials to the Anti-Bribery Convention also lack content regarding consequences for signatories' non-compliance. Id. at 13-41.

(209.) Id. at 12 (indicating Article 16 of Anti-Bribery Convention).

(210.) Id. (stating Article 17 of Anti-Bribery Convention).

(211.) See id. (reiterating Article 16 and Article 17 of Anti-Bribery Convention).

(212.) See 2012 Annual Report, supra note 1, at 45-63 (listing areas of improvement for ten signatories to implement); see also Carr & Outhwaite, supra note 7, at 19-22 (describing United Kingdom's conflicting interpretations and subsequent refusal to implement Anti-Bribery Convention recommendations).

(213.) See Anti-Bribery Convention, supra note 3, at 12 (establishing Article 17 as part of Anti-Bribery Convention); supra note 85 and accompanying text (explaining Anti-Bribery Convention's Article 17 Withdrawal requirements).

(214.) See Rose, supra note 102, at 356, 369 (explaining why United Kingdom terminated investigation and how House of Lords declined to interpret Article 5); see also Anti-Bribery Convention, supra note 3, at 9 (explaining requirements under Article 5 Enforcement of Anti-Bribery Convention). In enforcing these laws, "[investigations and prosecutions] shall not be influenced by considerations of national economic interest, the potential effect upon relations with another [signatory] or the identity of the natural or legal persons involved." Anti-Bribery Convention, supra, at 9.

(215.) See Anti-Bribery Convention, supra note 3, at 12 (requiring continued cooperation after notice of withdrawal under Anti-Bribery Convention's Article 17 Withdrawal requirements). This Note suggests that continued cooperation during the year post-notice of removal should also require continued cooperation with signatories. See supra note 85 and accompanying text.

(216.) See Anti-Bribery Convention, supra note 3, at 12 (establishing effective withdrawal one year post-notice and requiring continued cooperation until then through Article 17). This Note suggests the year post-notice of removal should be used as a probation period. See supra note 85 and accompanying text.

(217.) See text accompanying note 216 (suggesting how to use one year post-notice); Anti-Bribery Convention, supra note 3, at 12 (establishing effective withdrawal one year post-notice); supra note 85 (calling for continued cooperation); see also 2012 Annual Report, supra note 1, at 45-63 (listing areas of improvement for ten signatories to achieve compliant status); Anti-Bribery Convention, supra note 4, at 11 (establishing Article 11 Responsible Authorities as part of Anti-Bribery Convention).

(218.) See 2012 Annual Report, supra note 1, at 4 (recognizing Working Group and its diversity). Mark Pieth, Chair of the Working Group, oversees the "rigorous" peer review process involving many different signatories across many different boarders. Id. The Working Group consists of representatives from the signatories that meet four times a year and publishes all of its country monitoring reports. Id. at 7. The signatories' reports are extremely detailed and indicate an exhaustive examination of the implementation of the Anti-Bribery Convention "through amendments to the national legislation, analysis of statistical data gathered by criminal agencies, the level of public awareness, details about sanctions, questions of jurisdiction and levels of international co-operation." Carr & Outhwaite, supra note 7, at 8. This Note suggests Working Group's Phase 4 responsibilities would be similar to previous peer review visits. See supra Part IV.B.

(219.) See Anti-Bribery Convention, supra note 3, at 11 (establishing Article 11 Responsible Authorities as part of Anti-Bribery Convention). This Note suggests the Secretary General would be responsible for withdrawing removal status and reinstating compliant signatory. See supra note 211 and accompanying text.

(220.) See Carr & Outhwaite, supra note 7, at 6-7 (explaining how businesses fear public exposure damages reputation and lowers market integrity).

(221.) See Anti-Bribery Convention, supra note 3, at 6-12 (illustrating lack of Articles stating consequences for signatories' disregarding Anti-Bribery Convention obligations).

(222.) See 2012 Annual Report, supra note 1, at 2-3 (explaining Convention's vital role in combating bribery). The Convention's Secretary-General, Angel Gurri'a, explained how "[a]ctive enforcement is the best weapon we have to fight foreign bribery." Id. at 3. For this reason, the Anti-Bribery Convention "is a powerful tool for cleaning up markets." Id. at 2.

(223.) See supra notes 14-15 and accompanying text (recognizing United States' aggressive efforts to establish the Convention); 2012 Annual Report, supra note 1, at 13 (highlighting United States as leader in criminal and conviction rates); Budget, supra note 44 and accompanying text (noting United States as leader in budget contributions).

(224.) See supra note 15 and accompanying text (discussing United States' efforts to combat foreign briery offenses); see also Anti-Bribery Convention, supra note 3, at 10 (stating Article 10 Extradition provision and requirements of Anti-Bribery Convention).

(225.) See Anti-Bribery Convention, supra note 3, at 10 (explaining Article 10 Extradition); 2012 Annual Report, supra note 1, at 13 (recognizing United States as leader in criminal and conviction rates).

(226.) See Budget, supra note 44 (acknowledging United States as Convention's lead budget contributor); text accompanying note 44 (discussing country contributions).

(227.) See 2012 Annual Report, supra note 1, at 13 (noting United States as leader in criminal and conviction rates); Budget, supra note 44 (presenting United States as leader in budget contributions); text accompanying note 44 (discussing monetary contributions of countries).

(228.) See 2012 Annual Report, supra note 1, at 13 (recognizing United States as leader in criminal and conviction rates); Budget, supra note 44 (highlighting United States as leader in budget contributions); Anti-Bribery Convention, supra note 3, at 10 (stating Article 10 Extradition provision that expands U.S. jurisdictional boundaries).

(229.) See Robinson, supra note 45, at 327 (encouraging signatories to support economically depressed countries and each other more often); Budget , supra note 44 (prompting signatories contribute to Convention's budget); Anti-Bribery Convention, supra note 3, at 10-11 (stating Article 9 Mutual Legal Assistance and Article 12 Monitoring and Follow-up requirements).

(230.) See Anti-Bribery Convention, supra note 3, at 10 (stating Article 10 Extradition provision and requirements of Anti-Bribery Convention); Budget, supra note 44 (recognizing United States as leader in contributions); Robinson, supra note 45, at 327 (suggesting signatories contribute more to non-developing signatories).

(231.) See Convention Commentaries, supra note 6, at 5 (describing how Anti-Bribery Convention would harmonize criminalization). The OECD text can "be seen as a forerunner of a world-wide harmonisation effort." Id.

(232.) See Anti-Bribery Convention, supra note 3, at 6 (explaining negative impact of bribery). The Anti-Bribery Convention's preamble considered "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." Id. See also Chaffee, supra note 16, at 1319 (explaining new risks of bribery due to globalization of financial markets).

(233.) See Anti-Bribery Convention, supra note 3, at 6 (recognizing multilateral cooperation by signatories). The Anti-Bribery Convention's preamble recognized "that achieving progress in this field requires not only efforts on a national level but also multilateral co-operation, monitoring and follow-up." Id. See also Jordan, supra note 89, at 107-08 (explaining how Anti-Bribery Convention relied on signatories' collaboration to effectively enforce). Id.

(234.) See Anti-Bribery Convention, supra note 3, at 7 (stating Article 1 Offense of Bribery of Foreign Public officials); Karmel & Kelly, supra note 5, at 922 (recognizing Anti-Bribery Convention as binding hard law); Chaffee, supra note 16, at 1318 (suggesting international enforcement requires more than ratification).

(235.) See Carr & Outhwaite, supra note 7, at 21 (suggesting functional equivalency approach has minimal impact). The Working Group's "insistence that a [signatory] follow the form of the OECD [Anti-Bribery] Convention strongly suggests that its impact, if any, is minimal." Id. The Working Group's response "in respect of the [United Kingdom] anti-corruption law's compliance with the [Anti-Bribery] Convention does raise the question of whether functional equivalence plays any role at all in practice." Id. But see Yockey, supra note 22, at 378 (alluding to signatories' commitment is persuaded by fear of damaging business reputations).

(236.) See Anti-Bribery Convention, supra note 3, at 6 (recognizing government's role in Convention). The Anti-Bribery Convention's preamble recognized "the role of the governments in the prevention of solicitation of bribes from individuals and enterprises in international business transactions." Id. See also Transparency International, supra note 3, at 5 (blaming lack of political commitment resulted in Convention's loss of momentum); Rose, supra note 102, at 376 (passing of opportunity to interpret Convention's Articles undercut United Kingdom's commitment to its Anti-Bribery Convention obligations).

(237.) See Transparency International, supra note 3, at 5-7 (suggesting Anti-Bribery Convention consider alternative methods for enforcement in order to avoid unraveling progress).

(238.) See Anti-Bribery Convention, supra note 3, at 6 (requiring signatories ratify Anti-Bribery Convention "without derogation affecting" equivalence). The Convention recognized "that achieving equivalence among the measures to be taken by the [signatories] is an essential object and purpose of the Convention." Id. See also 2012 Annual Report, supra note 1, at 2-3 (explaining how Convention's strength is only as strong a signatories' commitment).
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Title Annotation:Organisation for Economic Co-operation and Development
Author:Graves, Courtney
Publication:Suffolk Transnational Law Review
Date:Jun 22, 2015
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