NOTE - George Washington University

NOTE

ENFORCING ENFORCEMENT: IS THE OECD ANTI-BRIBERY
CONVENTION’S PEER REVIEW EFFECTIVE?

Andrew Tyler *

I. INTRODUCTION

Between 2008 and 2009, two investigations into the bribery of
foreign officials culminated in settlements that dwarfed the previ-
ous record of $44 million.1 After a joint investigation by German
and U.S. authorities, Siemens AG, the German engineering con-
glomerate, agreed to pay fines totaling $1.3 billion to the two coun-
tries.2 Similarly, Halliburton/KBR, the oil and gas services
corporation, agreed to a settlement of $579 million with the U.S.
Department of Justice and U.S. Securities and Exchange Commis-
sion.3 These are just two highly visible examples of the consistently
(some might even say dramatically) elevating scrutiny and prosecu-
tion of foreign bribery offenses.4 This is seen not only in the
growth of investigations and prosecutions around the world, but
also in the proliferation of anti-bribery regimes within the United
Nations, African Union, Organization of American States, Asian
Development Bank, Council of Europe, and the Organisation for
Economic Co-operation and Development (OECD).5

* J.D. 2011, The George Washington University Law School; B.A. 2004, Pomona
College.

1. Press Release, Department of Justice, Baker Hughes Subsidiary Pleads Guilty to
Bribing Kazakh Official and Agrees to Pay $11 Million Criminal Fine as Part of Largest
Combined Sanction Ever Imposed in FCPA Case (Apr. 26, 2007), http://www.justice.gov/
opa/pr/2007/April/07_crm_296.html. This number represents combined civil penalties
through the Securities and Exchange Commission and criminal penalties through the
Department of Justice—a method of calculation that will be used throughout this Note
unless otherwise specified.

2. Ben W. Heineman, Stop Bribery Everywhere, CORP. COUNS., June 2009, at 80, 82.
3. Philip Urofsky, Recent Trends and Patterns in FCPA Enforcement, in WHITE COLLAR
CRIME 2009: PROSECUTORS AND REGULATORS SPEAK 651, 658 (2009).
4. See David Morrissey, The Fight Against Corruption by International Organizations, 39
GEO. WASH. INT’L L. REV. 165, 165–67 (2007); David C. Weiss, Note, The Foreign Corrupt
Practices Act, SEC Disgorgement of Profits, and the Evolving International Bribery Regime: Weighing
Proportionality, Retribution, and Deterrence, 30 MICH. J. INT’L L. 471, 473 (2008–2009).
5. Anti-corruption Conventions and Instruments, TRANSPARENCY INT’L, http://www.trans-
parency.org/global_priorities/international_conventions/conventions_instruments (last
visited Apr. 27, 2011).

137

138 The Geo. Wash. Int’l L. Rev. [Vol. 43

The first of these anti-bribery regimes, the Foreign Corrupt Prac-
tices Act (FCPA), was enacted in 1977 by the United States to com-
bat bribery of foreign officials by corporations and creates an
expansive jurisdictional reach.6 For the first twenty years after
enactment, the U.S. Securities and Exchange Commission and the
U.S. Department of Justice largely left their FCPA enforcement
powers dormant.7 However, since 2002, the government’s powers
have been used much more aggressively; the U.S. Department of
Justice currently investigates more than 100 cases a year.8

In 1997, the OECD adopted the OECD Convention on Combat-
ing Bribery of Foreign Public Officials in International Business
Transactions (Convention).9 The Convention’s adoption followed
ten years of pressure from the United States, driven by concerns
about corruption generally, and especially about the competitive
disadvantage U.S. companies faced internationally in the absence
of such a convention.10 The Convention, whose signatories are
required to make it a crime to bribe foreign public officials in
international business transactions, includes thirty-four original sig-
natories and four subsequent signatories, who represent most of
the world’s major economic powers.11

The global perception and understanding of bribery’s effects has
shifted significantly as it has become clearer that bribes are not
negligible, benign costs of doing business in foreign transactions,
but are instead inefficient and costly to the suppliers of bribes
(often large corporations) as well as harmful to the development
and growth in the countries where the bribes are paid (often
referred to as demand countries).12 As scholarly and empirical

6. See Foreign Corrupt Practices Act: An Overview, U.S. DEP’T OF JUSTICE, http://www.
justice.gov/criminal/fraud/fcpa/ (last visited Aug. 7, 2011). The Foreign Corrupt Prac-
tices Act (FCPA) applies to “all U.S. persons, [including corporations,] and certain foreign
issuers of securities.” Id. It also applies to foreign firms and persons who cause directly or
indirectly an act in furtherance of a corrupt payment to take place within the territory of
the United States. Id.

7. See Weiss, supra note 4, at 482.
8. See Dionne Searcey, U.S. Cracks Down on Corporate Bribes, WALL ST. J., May 26, 2009,
http://online.wsj.com/article/SB124329477230952689.html.
9. See Foreign Corrupt Practices Act: Anti-Bribery Provisions, U.S. DEP’T OF JUSTICE [here-
inafter Anti-Bribery Provisions], http://www.justice.gov/criminal/fraud/fcpa/docs/lay-per-
sons-guide.pdf (last visited Aug. 7, 2011).
10. See id.
11. See OECD Convention Combating Bribery of Officials in International Business Transac-
tions: Ratification Status as of March 2009, ORG. ECON. CO-OPERATION & DEV. [hereinafter
Ratification Status], http://www.oecd.org/dataoecd/59/13/40272933.pdf (last visited Aug.
7, 2011).
12. See Robert D. Tronnes, Ensuring Uniformity in the Implementation of the 1997 OECD
Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,

2011] Enforcing Enforcement 139

data on the effects of bribery has grown, bribery has become
increasingly disfavored by all stakeholders for its many pernicious
effects.13

This Note will evaluate the OECD’s success in achieving uniform
implementation and effective application of its anti-bribery provi-
sions through enforcement in the countries who are party to the
Convention. It will argue that after ten years the Convention
boasts significant successes in implementation through its peer-
review process, but that there are considerable challenges remain-
ing to achieving full compliance.

First, this Note will examine the background of the Convention,
specifically the FCPA, followed by an examination of the Conven-
tion itself and each of its provisions, including the 2009 Recom-
mendations, with particular emphasis on how compliance is
monitored and enforced. This Note will critique the effectiveness
of these monitoring provisions and will then turn to assessing the
success of the Convention’s implementation and identifying rea-
sons for both the Convention’s successes and failures. While
acknowledging the notable achievements of the Convention, this
Note will show that the Convention still has a considerable distance
to travel to achieve full compliance and has weaknesses that will
make it difficult to get there. Consequently, this Note will argue
that the Convention (and its enforcement) is a qualified success.
After demonstrating that the Convention is at a critical point in its
development, this Note will advocate for an improvement that will
make that distance to full compliance and successful enforcement
shorter and more certain–specifically targeted economic sanctions
that would act both as a compliance incentive and a field leveler.

II. BACKGROUND

Before the 1990s, many experts believed that corruption in
developing countries was benign, inevitable, and in some instances,
desirable.14 Subsequently, research has demonstrated that corrup-
tion and bribery create serious problems for all actors; bribery is
not benign, but pernicious.15 For suppliers of bribes, often large

33 GEO. WASH. INT’L L. REV. 97, 103–08 (2000); Elizabeth Spahn, International Bribery: The
Moral Imperialism Critiques, 18 MINN. J. INT’L L. 155, 156–57 (2009).

13. See Tronnes, supra note 12, at 104–08; Spahn, supra note 12, at 156–57.
14. Kenneth W. Abbott & Duncan Snidal, Values and Interests: International Legalization
in the Fight Against Corruption, 31 J. LEGAL STUD. 141, 158 (2002).
15. See id. at 158–60; Tronnes, supra note 12, at 103–08; Spahn, supra note 12, at
156–57.

140 The Geo. Wash. Int’l L. Rev. [Vol. 43

corporations and their investors from first world countries, bribery
causes uncertainties because price and quality are no longer the
only factors to be considered in transactions.16 Often, the bribe,
rather than price or quality, is the dispositive factor for these cor-
porations in deciding whether to undertake a business transac-
tion.17 These inefficiencies are expensive to corporations and are
increasingly disfavored by them.

Bribery also leads to a host of problems in the country where the
bribe is received, including: reduced growth, market distortion,
price distortion, reduced domestic and foreign investment,
increased poverty, shoddy or dangerous products, damaging envi-
ronmental practices, increased human rights violations, social
destabilization, and domestic unrest.18 For these reasons, corrup-
tion and bribery are increasingly condemned by all stakeholders,
including governments, corporations, nongovernmental organiza-
tions, multinational organizations, the World Bank, and the Inter-
national Monetary Foundation.19

A. Foreign Corrupt Practices Act 20

The FCPA is a U.S. law that punishes bribery of foreign public
officials.21 In the mid-1970s, U.S. Securities and Exchange Com-
mission investigations found that more than 400 U.S. companies
had made “questionable or illegal payments” of $300 million or
more to foreign officials and political parties.22 These payments
included outright bribes as well as “facilitating payments” made to
ensure ministerial functions were properly discharged.23 In
response to these findings, Congress enacted the FCPA in 1977 to
“restore public confidence in the integrity of the American busi-
ness system.”24

The FCPA prohibits U.S. citizens, companies that have issued
securities in the United States, and U.S. companies, subsidiaries,

16. See Tronnes, supra note 12, at 105.
17. See id.
18. See id. at 103–08; Spahn, supra note 12, at 156–57.
19. See Tronnes, supra note 12, at 103–08.
20. Foreign Corrupt Practices Act (FCPA) of 1977, 15 U.S.C. §§ 78m, 78dd(1)–(3),
78ff (2006).
21. Anti-Bribery Provisions, supra note 9.
22. Id.
23. Id. The FCPA defines a bribery payment as “an offer, payment, promise to pay, or
authorization of the payment of any money, or offer, gift, promise to give, or authorization
of the giving of anything of value” to assist the briber of the foreign official in obtaining or
retaining business or directing business to any person. FCPA § 78dd(1)(a).
24. Anti-Bribery Provisions, supra note 9.

2011] Enforcing Enforcement 141

and their instruments engaging in interstate commerce from
obtaining or retaining business by bribing foreign government offi-
cials.25 Congress amended the FCPA in 1998 to include foreign
companies and nationals when they are acting in furtherance of a
bribe of a foreign official within U.S. territory.26 Sanctions under
the FCPA can be substantial with criminal fines of $2 million for
companies and $100,000 for individuals with up to five years in
jail.27 These fines can be equal to double the benefit the briber
sought to gain in making the bribe, irrespective of the lost transac-
tion.28 In addition to criminal penalties, bribers may be punished
with millions of dollars in civil fines, as well as profit disgorgement
and other punitive sanctions, such as being barred from govern-
ment contracts and/or the revocation of licenses and charters.29

The FCPA was largely dormant for most of its history.30 From
1978 until 2000, the U.S. Securities and Exchange Commission and
U.S. Department of Justice together averaged only three FCPA
prosecutions each year,31 and the resulting penalties were usually
minimal.32 Comparatively, between 2003 and 2008, government
enforcement of the FCPA had increased significantly with an aver-
age of nearly twenty prosecutions each year.33 Recently, the gov-
ernment assessed record fines to both Halliburton ($579 million)
and Siemens ($800 million) for FCPA violations, demonstrating
the increasing trend of enforcement investigations and enforce-
ment actions against corporations and individuals.34

The FCPA has spawned a whole sector of U.S. law to address
disclosure and compliance with its provisions that has changed the
corporate culture and practice of U.S. companies with respect to

25. See FCPA §§ 78dd(1)–(3). “The term ‘foreign official’ means any officer or
employee of a foreign government or any department, agency, or instrumentality thereof,
or of a public international organization, or any person acting in an official capacity for or
on behalf of any such government or department, agency, or instrumentality, or for or on
behalf of any such public international organization.” Id. § 78dd(1)(f)(1)(A).

26. Anti-Bribery Provisions, supra note 9.

27. See id.

28. See id.

29. See id.

30. See Ethan S. Burger & Mary S. Holland, Why the Private Sector is Likely to Lead the
Next Stage in the Global Fight Against Corruption, 30 FORDHAM INT’L L.J. 45, 46 (2006).

31. Priya Cherian Huskins, FCPA Prosecutions: Liability Trend to Watch, 60 STAN. L. REV.
1447, 1449 (2008).

32. See id.; Urofsky, supra note 3, at 658.

33. See Urofsky, supra note 3, at 656.

34. Id. at 658.

142 The Geo. Wash. Int’l L. Rev. [Vol. 43

foreign bribery.35 When the United States was the only country
enforcing this kind of anti-bribery regime, U.S. businesses suffered
a substantial competitive disadvantage in the international arena;
studies showed that 70% of U.S. firms believed that unilateral
restrictions under the FCPA harmed U.S. business.36 The U.S.
Department of Commerce found that in 1994 and 1995 U.S. com-
panies lost 100 contracts valued at $45 billion to overseas competi-
tors.”37 In response to this problem, Congress passed the 1988
amendments to the FCPA, which required the president to pursue
an international agreement to criminalize foreign bribery, via the
OECD, in order to level the playing field.38

B. OECD Convention on Bribery of Foreign Public Officials in
International Business Transactions

The OECD is an international economic organization composed
of thirty-four predominantly well-developed countries.39 The
OECD succeeded the Organisation for European Economic Co-
operation, which had administered the Marshall Plan to facilitate
European economic recovery following World War II.40 Formed in
1961, the OECD was founded to foster economic stability in the
region and to assist in economic development in lesser developed
nations.41 This purpose survives in the current OECD mission: to

35. See id.; see also Frank C. Razzano & Travis P. Nelson, The Expanding Criminalization
of Transnational Bribery: Global Prosecution Necessitates Global Compliance, 42 INT’L LAW. 1259,
1260 (2008).

36. See JYOTI N. PRASAD, IMPACT OF THE FOREIGN CORRUPT PRACTICES ACT OF 1977 ON
U.S. EXPORT 114–15 (1993).

37. Don Evans, U.S. Sec’y of Commerce, Remarks at Third Annual Forum on Fighting
Corruption and Safeguarding Integrity in Seoul, South Korea (May 31, 2003), available at
http://www.osec.doc.gov/ogc/occic/SecEvans_GFIII.htm.

38. Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, §§ 5001-
03, 102 Stat. 1107, 1415–25 (1988) (Foreign Corrupt Practices Act Amendments of 1988);
Beverley Earle, The United States’ Foreign Corrupt Practices Act and the OECD Anti-Bribery Recom-
mendation: When Moral Suasion Won’t Work, Try the Money Argument, 14 DICK. J. INT’L L. 207,
208 (1996).

39. About the Organisation, ORG. FOR ECON. CO-OPERATION & DEV., http://www.oecd.
org/pages/0,3417,en_36734052_36734103_1_1_1_1_1,00.html (last visited Aug. 7, 2011).

40. OECD History, ORG. ECON. CO-OPERATION & DEV., http://www.oecd.org/pages/
0,3417,en_36734052_36761863_1_1_1_1_1,00.html (last visited Aug. 7, 2011); Organisation
for European Economic Co-operation, ORG. ECON. CO-OPERATION & DEV., http://www.oecd.
org/document/48/0,3746,en_2649_201185_1876912_1_1_1_1,00.html (last visited Aug. 7,
2011); see Robert Hall, International Economic Co-operation After 1945, 33 HISTORY TODAY 12,
14 (1983), available at http://www.historytoday.com/lord-roberthall/international-eco-
nomic-co-operation-after-1945.

41. OECD History, supra note 40; Hall, supra note 40; ORG. ECON. CO-OPERATION &
DEV., OECD: HISTORY, AIMS, STRUCTURE 5–6 (1972).

2011] Enforcing Enforcement 143

“promote policies that will improve the economic and social well-
being of people around the world.”42

Today, the OECD is a multinational organization made up of the
world’s richest countries, which account for nearly 72% of world’s
gross national income (GNI) and nearly 61% of world trade.43
Headquartered in Paris, the OECD has a budget of almost $500
million.44 In addition to the thirty countries that were already
members of the OECD, in 2010 Chile, Estonia, Israel, and Slovenia
joined the OECD, while Russia continued accession talks.45 As of
2011, discussions were also underway with South Africa, China,
Brazil, Indonesia, and India.46 Should these additional economi-
cally powerful countries join the OECD, the OECD’s collective
reach would increase greatly; combined, the countries would
represent nearly 90% of the world’s GDP.47

The OECD has the power to enter into agreements with mem-
bers, non-member states, and international organizations that are
binding on its members unless otherwise provided for.48 Two par-
ticular pressures led to the birth of the OECD’s Convention on
Bribery of Foreign Public Officials in International Business Trans-
actions (OECD Convention). First, in the early 1990s, there was a
heightened awareness of, and dissatisfaction with, international
corruption in general as a result world events.49 Second, the
United States was applying significant pressure on the OECD to

42. About the Organisation, supra note 39.
43. ORG. FOR ECON. CO-OPERATION & DEV., OECD ANNUAL REPORT: 2009, at 6 (2009),
available at http://www.oecd.org/dataoecd/38/39/43125523.pdf.
44. See id. at 9; Member Countries’ Budget Contributions for 2011, ORG. ECON. CO-OPERA-
TION & DEV., http://www.oecd.org/document/14/0,3343,en_2649_201185_31420750_1_1
_1_1,00.html (last visited Aug. 7, 2011).
45. See Members and Partners, ORG. ECON. CO-OPERATION & DEV., http://www.oecd.org/
pages/0,3417,en_36734052_36761800_1_1_1_1_1,00.html (last visited, Aug. 7, 2011). The
OECD’s current members are: Australia, Austria, Belgium, Canada, Chile, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel,
Italy, Japan, Korea, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland,
Portugal, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, the United King-
dom, and the United States. Russia remains in discussions for membership, and there are
currently five “engaged countries:” Brazil, China, India, Indonesia, and South Africa. Id.
46. Id.
47. See World Development Indicators Database, WORLD BANK (July 1, 2011), http://siter-
esources.worldbank.org/DATASTATISTICS/Resources/GDP.pdf.
48. Convention on the Organisation for Economic Co-operation and Development
art. 5, Dec. 14, 1960, 12 U.S.T. 1728, 888 U.N.T.S. 179.
49. Patrick Glynn, Stephen J. Kobrin, & Moise´s Na´ım, The Globalization of Corruption, in
CORRUPTION AND THE GLOBAL ECONOMY 7, 19–21 (Kimberly Ann Elliott ed., 1997). At this
time there were investigations of French and German politicians, other scandals in Asia,
and increased international media coverage of corruption. Id. at 21; see also Barbara
Crutchfield George, Kathleen A. Lacey, & Jutta Birmele, The 1998 OECD Convention: An

144 The Geo. Wash. Int’l L. Rev. [Vol. 43

adopt an anti-bribery regime pursuant to the 1988 amendments to
the FCPA.50 The United States had a particular interest in pursu-
ing an international equivalent to the FCPA through the OECD
because OECD member countries contain almost all major U.S.
business competitors and a convention would help level the play-
ing field for U.S. companies through a singular mechanism.51
From the OECD’s perspective, an anti-bribery regime would dove-
tail with the OECD’s primary post-Cold War goals of promoting
exports and foreign investment, both of which were impeded by
international corruption.52

Initially the OECD showed limited interest in establishing an
anti-bribery regime, with some countries openly resisting the idea;
France and Germany in particular felt enforcing bribery laws would
be difficult and also likely wanted to shield their domestic business
tax deductibility protections for bribes.53 These resisters were mol-
lified by agreements that the OECD’s anti-bribery regime would
require domestic legislation to be implemented within a specific
timeframe and that it would only become effective upon ratifica-
tion by five of the ten countries in the OECD with the highest total
exports, who together equal 60% of the total exports of those ten
countries.54 By the mid-1990s, with continued pressure from the
United States and increasing evidence of international corruption,
the OECD made recommendations in 1994 and 1997, culminating
in the adoption of the Convention on Combating Bribery of For-
eign Public Officials in International Business Transactions (Con-
vention) by the OECD on November 21, 1997.55

Impetus for Worldwide Changes in Attitudes Toward Corruption in Business Transactions, 37 AM.
BUS. L.J. 485, 490, 520 (2000).

50. See Anti-Bribery Provisions, supra note 9. The United States has significant leverage
within the OECD because it provides 22% of the organization’s budget due to a funding
scheme based on each nation’s gross domestic product (GDP). See Member Countries’ Budget
Contributions for 2011, supra note 44.

51. See George, Lacey & Birmele, supra note 49, at 495–96.
52. See THE OECD CONVENTION ON BRIBERY: A COMMENTARY 10 (Mark Pieth, Lucinda
A. Low, & Peter J. Cullen eds., 2007).
53. See George, Lacey & Birmele, supra note 49, at 496.
54. See Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions arts. 14–15, Dec. 17, 1997, 112 Stat. 3302, 37 I.L.M. 1 [hereafter
OECD Convention]; Paul Blustein, Pact to Bar Bribery is Reached; Major Nations Agree to U.S.
Request, WASH. POST, May 24, 1997, at F1; Paul Blustein, Fight Looms over Foreign Bribery;
France, Germany Blocking Efforts to Outlaw Practice, U.S. Officials Say, WASH. POST, May 9, 1997,
at A22.
55. See Lucinda A. Low, Transnational Corruption: New Rules for Old Temptations, New
Players to Combat a Perennial Evil, 92 AM. SOC’Y INT’L L. PROC. 151, 151 (1998). The 1994
Recommendation was not legally binding, but encouraged OECD member states to
criminalize bribery of foreign officials in connection with international business transac-

2011] Enforcing Enforcement 145

OECD commentaries for the Convention state that the Conven-
tion intends “to assure a functional equivalence among the mea-
sures taken by the Parties to sanction bribery of foreign public
officials, without requiring uniformity or changes in fundamental
principles of a Party’s legal system.”56 In December 1997, all twenty
nine of the OECD member countries at the time, and five addi-
tional non-members (Argentina, Brazil, Bulgaria, Chile, and Slove-
nia), signed the Convention.57 Canada’s ratification on February
15, 1999 brought the Convention into force.58 The remarkably
quick turnaround between the Convention’s adoption and its rati-
fication by member countries may again be attributed to persistent
U.S. pressure coupled with larger international concern about cor-
ruption and the presence of corruption issues domestically in
member countries.59 As of 2009, thirty-eight countries had
adopted the Convention, including four new members: Estonia,
Israel, South Africa, and Slovenia.60

1. Convention Provisions

The Convention’s principle legal framework is set out in Article
1 as follows:

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

tions. Org. for Econ. Co-operation & Dev., Council Recommendation on Bribery in International
Business Transactions, at 3, OECD Doc. C(94)75/Final (May 27, 1994). The 1997 Recom-
mendation committed the OECD and its members to pursuing anti-bribery goals through
a convention and further adopted a resolution condemning schemes allowing for tax
deductibility of bribes. Org. for Econ. Co-operation & Dev., Revised Recommendation of the
Council on Combating Bribery in International Business Transactions, at 2–4, OECD Doc.
C(97)123/FINAL (May 23, 1997). The 1997 Recommendation was strengthened in 2009
by a Recommendation that strengthened the language against tax deductibility and also
recommended rigorous monitoring mechanisms. Org. for Econ. Co-operation & Dev., Rec-
ommendation of the Council on Tax Measures for Further Combating Bribery of Foreign Public Offi-
cials in International Business Transactions, OECD Doc. C(2009)64 (May 25, 2009)
[hereinafter Council Recommendation on Tax Measures].

56. Org. for Econ. Co-operation & Dev., Commentaries on Convention Combating Bribery
of Officials in International Business Transactions, OECD Doc. DAFFE/IME/BR(97)17/REV1
(Nov. 26, 1997) [hereinafter OECD Commentaries].

57. Information Sheet on the OECD Convention on Combating Bribery of Foreign Public Offi-
cials in International Business Transactions, at 1, ORG. ECON. CO-OPERATION & DEV., http://
www.oecd.org/dataoecd/52/24/2406452.pdf (last visited July 30, 2011).

58. Christopher F. Corr & Judd Lawler, Damned if You Do, Damned if You Don’t? The
OECD Convention and the Globalization of Anti-Bribery Measures, 32 VAND. J. TRANSNAT’L L.
1249, 1303 n.367 (1999).

59. See Daniel K. Tarullo, The Limits of Institutional Design: Implementing the OECD Anti-
Bribery Convention, 44 VA. J. INT’L L. 665, 668 (2004); Pieth, Low & Cullen, supra 52, at 17.

60. Ratification Status, supra note 11.

146 The Geo. Wash. Int’l L. Rev. [Vol. 43

other advantage . . . to a foreign public official . . . in order that
the official act or refrain from acting in relation to the perform-
ance of official duties, in order to obtain or retain business or
other improper advantage in the conduct of international
business.61

Within the Convention’s seventeen articles, there are essentially
five obligations to which all parties must adhere: 1) to criminalize
bribery of public officials and to punish these acts of bribery within
a reasonable statute of limitations; 2) to treat money laundering,
including the concealment of corruption proceeds, as a criminal
offense subject to only limited exceptions; 3) to establish the liabil-
ity of companies under the Convention and prohibit accounting
practices that conceal bribery; 4) to provide mutual legal assistance
and information for prosecuting those who engage in bribery
across international jurisdictions, to make extradition easier for
offenses governed by the Convention, and to provide for the
seizure or confiscation of corrupt proceeds; and 5) to cooperate in
a follow-up process to monitor and ensure full implementation of
the Convention and to bear the costs of this process.62

The Convention’s drafters made two choices which are worth
noting.63 First, the substantive scope of the Convention is narrow,
applying only to the ‘supply’ side of bribery, namely the bribers,
and lacking any provision addressing the ‘demand’ side of brib-
ery–the recipients of the bribes.64 The guiding principle in this
decision was that targeting the bribers, rather than the bribe recipi-

61. OECD Convention, supra note 54, art 1.
62. See OECD Convention on Bribery of Foreign Public Officials in International Business
Transactions, TRANSPARENCY INT’L, http://www.transparency.org/global_priorities/inter-
national_conventions/conventions_instruments/oecd_convention (last visited Aug. 7,
2011). The OECD itself has identified significant weaknesses in this narrowly tailored Con-
vention; in 1998, the OECD Working Group on Bribery in International Business Transac-
tions (WGB) noted that further efforts were needed to address “bribery acts in relation
with foreign parties; advantages promised or given to any person in anticipation of that
person becoming a foreign public official; bribery of foreign public officials as a predicate
offence for money laundering legislation; the role of foreign subsidiaries in bribery trans-
actions; [and] the role of offshore centres in bribery transactions.” OECD Working Grp.
on Bribery in Int’l Bus. Transactions, Five Issues Relating to Corruption, at 1, OECD Doc.
DAFFE/IME/BR(98)13 (Oct. 23, 1998). Despite initial attention from the OECD Secreta-
riat on these issues, there has been little follow-up. TRANSPARENCY INT’L, supra.
63. In addition to the two aspects which will be discussed in this Note, it is also worth
noting that the Convention adopts an expansive view on jurisdiction, taking its cue from
the FCPA by applying to any actions in furtherance of bribery within each country, but
going further, to include actions taken by companies headquartered in member nations,
but located in other countries, including non-OECD countries. See Corr & Lawler, supra
note 58, at 1306.
64. Pieth, Low & Cullen, supra note 52, at 20–22; See OECD Convention, supra note
54, arts. 1–3; Tarullo, supra note 59, at 681–82.

2011] Enforcing Enforcement 147

ents, would be more effective due to their commercial nature and
their related vulnerability to official actions.65 It was believed that
this approach would effectively undermine the bribe-takers as well
by shutting off their supply.66 Further, this approach would more
effectively “level the playing field” globally by focusing largely on
international companies rather than pursuing the more localized
bribe-takers.67 Implicit in this narrow emphasis on the supply side
of bribery was the desire to keep the Convention as simple as possi-
ble so as to make global implementation and monitoring across
distinct domestic legal systems manageable.68

Second, the rules the Convention sets forth are notably generic
and unspecific. There are a few specific provisions within frame-
work of the Convention, including defining a “foreign public offi-
cial,” but on the whole, the Convention is written in intentionally
broad terms that are unenforceable on their face; it is not self-exe-
cuting.69 Instead, each party must integrate the Convention into
its own domestic law through independent implementation legisla-
tion.70 The purpose of these open-ended articles is to allow for the
harmonization of Convention rules across legal systems that have
vast divergences with respect to domestic procedures, jurisdiction,
liability, and rules of evidence.71 In order to achieve harmoniza-
tion, the Convention embraces the principle of “functional equiva-
lence” both in the preamble and in the OECD Commentaries.72
This principle provides that a party may use various approaches to
fulfill its obligations to criminalize foreign bribery “without requir-
ing uniformity or changes in fundamental principles of a Party’s
legal system.”73 An example of this is where “a [domestic] statute

65. See Pieth, Low & Cullen, supra note 52, at 21.
66. Id.
67. See id.
68. See id.
69. OECD Convention, supra note 54, art. 1; Pieth, Low & Cullen, supra note 52, at 25.
The Convention defines “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.” OECD
Convention, supra note 54, art. 1. The Convention is not self-executing because it is not
enforceable on its own terms in signatory countries; it requires implementing legislation to
be enacted, which can then be enforced in signatory countries. Pieth, Low & Cullen, supra
note 52, at 25.
70. Pieth, Low & Cullen, supra note 52, at 25.
71. Id. at 26–27.
72. Id.; OECD Convention, supra note 54, pmbl.; OECD Commentaries, supra note 56, at
14.
73. Pieth, Low & Cullen, supra note 52, at 27–29; OECD Commentaries, supra note 56, at
14.

148 The Geo. Wash. Int’l L. Rev. [Vol. 43

prohibiting the bribery of agents generally which does not specifi-
cally address bribery of a foreign public official, and a statute spe-
cifically limited to this [bribery of a foreign public official]case,”
could both comply with the Convention.74

2. Peer-Review Monitoring (Enforcement)

There are generally three types of enforcement mechanisms in
international law.75 Historically, enforcement in the international
realm was achieved through warfare, a mechanism that is extreme
and disfavored because of the destruction it causes.76 More
recently, international actors, particularly the United States, have
preferred economic sanctions to achieve their enforcement
goals.77 Economic sanctions may be defined as “coercive economic
measures taken by the sending State against the target State(s) to
coerce a change in the policies and practices of the target
State(s).”78 Sanctions can have a direct and significant impact on a
country’s actions without the violence that warfare brings.79 Eco-
nomic sanctions can take many forms, including “the manipulation
of taxation, imports, exports, foreign aid, access to markets, or
access to financial institutions.”80 The third international enforce-
ment mechanism for violations is the imposition of indirect or
reputational sanctions pursuant to a monitoring system, which
damage a nation’s reputation, with the degree of damage depend-
ing on the severity, reason, extent, and clearness of the violation.81

74. OECD Commentaries, supra note 56, at 14.
75. See Justin D. Stalls, Economic Sanctions, 11 U. MIAMI INT’L & COMP. L. REV. 115,
115–20 (2003) (discussing the historic use of two enforcement mechanisms: warfare and
economic sanctions); Andrew T. Guzman, A Compliance-Based Theory of International Law, 90
CAL. L. REV. 1823, 1861–64 (2002) (discussing a third enforcement mechanism: reputa-
tional sanctions).
76. Stalls, supra note 75, at 116.
77. Id. at 116–18.
78. Id. at 119.
79. See id. at 117–19.
80. Id. at 120.
81. See Guzman, supra note 75, at 1861–64. Modern innovators continue to come up
with new variations on these mechanisms to enforce international law, including: the use
of private rights of action, the use of international emissions trading markets, the use of
international criminal law regimes, the granting of enforcement powers to nongovernmen-
tal organizations, and the implementation of “secondary sanctions.” See, e.g., Philip M.
Moremen, Private Rights of Action to Enforce Rules of International Regimes, 79 TEMP. L. REV.
1127, 1127–30 (2006); Brett Frischmann, Using the Multilayered Nature of International Emis-
sions Trading and of International-Domestic Legal Systems to Escape a Multi-State Compliance
Dilemma, 13 GEO. INT’L ENVTL. L. REV. 463, 464–69 (2001); William W. Burke-White, A
Community of Courts: Toward a System of International Criminal Law Enforcement, 24 MICH. J.
INT’L L. 1, 2–4 (2002); Tanya D. Sobol, Note, An NGO’s Fight to Save Ukraine’s Danube Delta:

2011] Enforcing Enforcement 149

The Convention’s success requires uniform and fair application
to level the playing field and to prevent any nonconforming party
from gaining a competitive advantage over conforming parties in
securing business through bribery.82 The Convention intends to
achieve this uniformity primarily through a peer-review monitoring
system provided for in Article 12 of the Convention.83 Article 12 of
the Convention requires all parties to participate in peer-review
monitoring by both being evaluated and evaluating other coun-
tries’ compliance with the Convention, and by providing follow-up
procedures to ensure full implementation of the Convention.84
The OECD Working Group on Bribery in International Business
Transactions (WGB) is the organization within the OECD responsi-
ble for implementing the monitoring process provided for in Arti-
cle 12.85 The WGB meets four times a year in Paris and is
composed of representatives of the Convention’s signatories.86 At
the end of the monitoring process the WGB publishes its country
monitoring reports online.87 The OECD Commentaries further
explain that each country’s implementation of the Convention will
be reviewed regularly through self-evaluation and mutual-evalua-
tion and that common specific international bribery issues will be
monitored across all parties to the Convention.88 Two characteris-
tics make the Convention’s monitoring system distinct: first, the
monitoring is driven by the parties themselves as they monitor
each other in rotating teams; and second, there are specific
allowances made for material participation by both the private sec-
tor and civil society, namely non-governmental organizations,
within the process.89

The Case for Granting Nongovernmental Organizations Formal Powers of Enforcement, 17 COLO. J.
INT’L ENVTL. L. & POL’Y 123, 123–27 (2006); Jeffrey A. Meyer, Second Thoughts on Secondary
Sanctions, 30 U. PA. J. INT’L L. 905, 905–11 (2009).

82. See Pieth, Low & Cullen, supra note 52, at 468–69.
83. See OECD Convention, supra note 54, art. 12.
84. Id.; OECD Commentaries, supra note 56, at 17–18.
85. See OECD Working Group on Bribery in International Business Transactions, ORG. ECON.
CO-OPERATION & DEV., http://www.oecd.org/document/5/0,3343,en_2649_34859_354300
21_1_1_1_1,00.html (last visited Aug. 7, 2011).
86. Id.
87. Id.
88. See OECD Commentaries, supra note 56, at 17–18.
89. Pieth, Low & Cullen, supra note 52, at 31. The most typical examples of “civil
society” are non-governmental organizations, but also include community-based organiza-
tions, social movements, labor unions, faith-based groups, and foundations. See The World
Bank and Civil Society, WORLD BANK (2009), http://web.worldbank.org/WBSITE/EXTER-
NAL/TOPICS/CSO/0,,contentMDK:20092185~menuPK:220422~pagePK:220503~piPK:22
0476~theSitePK:228717,00.html.

150 The Geo. Wash. Int’l L. Rev. [Vol. 43

The WGB has two monitoring mechanisms for the Convention:
Phase 1 and Phase 2.90 Additionally, at the Tour de Tables, held at
least four times each year, each country reports their progress in
implementing legislation or enforcement which is released to the
public.91 During the Tour De Tables, the countries also question
each other on specific cases of bribery that have been publicly
reported–although the content of this questioning is kept confi-
dential.92 Phase 1 monitoring addresses the legal compliance of
the countries’ domestic anti-bribery legislation with the Conven-
tion, while Phase 2 evaluates the success of the legislation’s actual
application and the enforcement of the domestic statutes.93 Both
phases provide for follow-up evaluations to assess modifications
made in response to the deficiencies identified in the initial
review.94

i. Phase 1

The central purpose of Phase 1 monitoring is to “evaluate
whether the legal texts through which participants implement the
OECD Anti-Bribery Convention meet the standard set by the Con-
vention.”95 Additionally, Phase 1 reviews the implementation of
the 1997 Recommendation to the Convention which requires that
countries eliminate foreign official bribe tax deductibility.96 The
Phase 1 review approach consists of both self and mutual evalua-
tions on a country-by-country basis.97 The first Phase 1 examina-
tions of the Convention’s original signatories were completed
between 1999 and 2005.98

90. Phase 1 Country Monitoring of the OECD Anti-Bribery Convention, ORG. ECON. CO-OPER-
ATION & DEV. [hereinafter Country Monitoring: Phase 1], http://www.oecd.org/document/
21/0,3343,en_2649_34859_2022613_1_1_1_1,00.html (last visited Aug. 7, 2011); Phase 2
Country Monitoring of the OECD Anti-Bribery Convention, ORG. ECON. CO-OPERATION & DEV.
[hereinafter Country Monitoring: Phase 2], http://www.oecd.org/document/27/
0,3343,en_2649_34859_2022939_1_1_1_1,00.html (last visited Aug. 7, 2011).

91. Pieth, Low & Cullen, supra note 52 at 31.

92. Id. at 31–32.

93. Country Monitoring: Phase 1, supra note 90; Country Monitoring: Phase 2, supra note
90.

94. See Country Reports on the Implementation of the OECD Anti-Bribery Convention, ORG.
ECON. CO-OPERATION & DEV. [hereinafter Country Reports], http://www.oecd.org/docu-
ment/24/0,3343,en_2649_34859_1933144_1_1_1_1,00.html#Phase_1 (last visited Aug. 7,
2011).

95. Country Monitoring: Phase 1, supra note 90.

96. Id.; Pieth, Low & Cullen, supra note 52, at 452.

97. Country Monitoring: Phase 1, supra note 90.

98. See Country Reports, supra note 94; Pieth, Low & Cullen, supra note 52, at 453.

2011] Enforcing Enforcement 151

The Phase 1 review follows a fully prescribed process by the WGB
beginning with a detailed questionnaire for each country to com-
plete that tracks the Convention’s implementation within the
country’s own legal system and compliance with the Convention’s
provisions.99 Two countries, at least one of which has a similar
legal system to the country being monitored, are appointed by the
WGB to act as lead examiners of the country being monitored.100
The OECD Secretariat, with the advice of the lead examiners,
prepares a preliminary report which is largely independent of
influence from the reviewed country.101 The country being
examined has an opportunity to make a presentation before the
entire WGB and then the lead examiners present their findings.102
All nations participate in evaluating the country at this stage, after
which a final report on compliance is adopted by consensus
(excluding the examined country).103

Phase 1 reviews are not rubber-stamped; instead they exhibit dis-
tinct evaluative outcomes for different countries: “overall” approval
of compliance, “major issues requiring immediate action,” issues of
concern to be followed up in Phase 2, or “minor issues to be
addressed as appropriate.”104

The deficiencies identified by Phase 1 reviews have been largely
addressed by the reviewed countries through their executive and
legislative processes and in many cases identified deficiencies have
been quickly corrected.105 In addition to Phase 1 reviewing, the
WGB found that a “Phase 1 plus” review process was necessary
because some member countries continued to have implementing
legislation that did not comply with the Convention.106 Initially,
this “Phase 1 plus” review process was been appended onto the sig-
natory’s Phase 1 report; now, this “Phase 1 plus” review occurs dur-
ing Phase 2 when needed.107

99. See Country Monitoring: Phase 1, supra note 90; Pieth, Low & Cullen, supra note 52,
at 453.

100. See Country Monitoring: Phase 1, supra note 90; Pieth, Low & Cullen, supra note 52,
at 454.

101. See Pieth, Low & Cullen, supra note 52, at 453–54.
102. See Country Monitoring: Phase 1, supra note 90.
103. See id.
104. Pieth, Low & Cullen, supra note 52, at 455–56.
105. Id. at 456.
106. See id. (identifying “Phase 1 plus” evaluated countries: Bulgaria, Czech Republic,
Hungary, Iceland, Italy, Japan, and the United Kingdom).
107. See id. at 456–57.

152 The Geo. Wash. Int’l L. Rev. [Vol. 43

ii. Phase 2

The purpose of Phase 2 review is “to study the structures put in
place to enforce the laws and rules implementing the OECD Anti-
Bribery Convention and to assess their application in practice.”108
In contrast to Phase 1, which only looks at the formal compliance
of the implementing legislation with the Convention, Phase 2
assesses the practical, substantive application of the Convention in
order to ensure that the purpose of the Convention is met: to
achieve “equivalence among the measures to be taken by the par-
ties.”109 In addition, Phase 2 reviews produce a feedback loop,
where common issues and problems can be identified across the
Convention to assess efficacy and adopt better practices.110 As in
Phase 1, Phase 2 is conducted by examining each country through
self and mutual evaluation.111

a. Preparation and Questionnaire

The procedure for Phase 2 is prescribed in guidelines first
adopted by the Convention in 2001, and revised several times sub-
sequently.112 The first Phase 2 review began in 2002, and as of
December 2009, all parties had completed their initial Phase 2
review.113 As in Phase 1, Phase 2 also begins with a questionnaire
and the appointment of two countries to be lead investigators.114
The standard questionnaire requires the country being reviewed to
provide information in a variety of areas, including: organization
and independence of investigatory and prosecutorial institutions;
human and financial resources available to implement the Conven-
tion; governmental efforts to raise awareness among corporate,
legal communities, and the public at large; relevant jurisprudence
related to bribery and the Convention; application of the Conven-
tion to corporate liability; practical investigatory and prosecutorial
hurdles faced; responses to specific cases of foreign bribery; report-
ing requirements for both public and private individuals;
whistleblower protections; tax treatment of bribes and reporting
obligations of tax inspectors; accounting and auditing practices for

108. Country Monitoring: Phase 2, supra note 90.
109. OECD Convention, supra note 54, pmbl.; see also Pieth, Low & Cullen, supra note
52, at 458.
110. See Country Monitoring: Phase 2, supra note 90.
111. Id.
112. See Pieth, Low & Cullen, supra note 52, at 457.
113. See Country Reports, supra note 94.
114. Country Monitoring: Phase 2, supra note 90; To minimize power dynamics, the lead
examiner for a G7 country would be another G7 country; as in Phase 1, one of the two
countries will have a similar legal system. See Pieth, Low & Cullen, supra note 52, at 458–59.

2011] Enforcing Enforcement 153

the detection of foreign bribery; and processes for international
mutual legal assistance and extradition.115

Phase 2 differs from Phase 1 by providing a supplementary ques-
tionnaire which is tailored to each country based on independent
research by the examining countries and the OECD Secretariat.116
This supplemental questionnaire can address deficiencies in Phase
1 compliance as well as challenges and obstacles specific to the
country under review.117

b. On-site Visit

Phase 2 also involves an on-site visit by an appointed examining
team to evaluate the Convention’s implementation in person.118
The on-site visit has a standard format that usually lasts about a
week.119 The examining team is made up of experts from both
examining countries and representatives from the Secretariat and
consists of between six and twelve people, including law enforce-
ment personnel, such as prosecutors or investigators, and other
experts who are often experienced in accounting or tax issues.120
Before the visit, preliminary issues are identified by the examina-
tion team and a preliminary agenda is proposed and finalized in
consultation with the examined country.121

The final agenda requires panels of relevant participants and
observers to be present and be questioned by the examiners.122
The panels must cover the following issues:

the criminal enforcement of anti-bribery laws; accounting-secur-
ities regulations; book and records and auditing; tax-auditing
and deductibility; the role of the private sector, in-house and
external legal counsel, auditors, and accountants; also included
should be a panel dealing with the role of official development
assistance and export credit support systems in detecting and
deterring foreign bribery.123

Also, a panel allowing civil society, including nongovernmental
organizations, to express their views should occur, as well as panels
addressing any other outstanding issues identified by the examin-

115. OECD Working Grp. on Bribery in Int’l Bus. Transactions, Phase 2 Questionnaire, at
4–6, 10–12, OECD Doc. DAFFE/IME/BR/WD(2000)36/FINAL (Jan. 24, 2001).

116. Pieth, Low & Cullen, supra note 52, at 458–59.
117. Id. at 459.
118. Country Monitoring: Phase 2, supra note 90.
119. See Pieth, Low & Cullen, supra note 52, at 460.
120. Id. at 460–61.
121. Id. at 461.
122. Id. at 461–62.
123. Id. at 461.

154 The Geo. Wash. Int’l L. Rev. [Vol. 43

ing team.124 During the visit, the examining team will usually meet
with between eighty and one hundred people.125 The examined
country ultimately has discretion as to the procurement and com-
position of the panel, and while there have generally been few
problems, when difficulties have arisen regarding the panel’s rep-
resentativeness, they are reflected in the final report.126 A final
concluding session is held at the end of each visit to allow for inter-
action between the examiners and the examined country during
which issues, concerns, and preliminary reflections can be
communicated.127

3. Final Report and After

Following a Phase 2 review, a preliminary report is drafted by the
OECD Secretariat in consultation with the two examining coun-
tries.128 While the examined country can comment and respond to
the report, its comments are generally limited to correcting errors
and clarifying points of confusion; the examined country may not
use the opportunity to commend as a way to “re-write” the draft
report, particularly in regard to any weaknesses identified.129 After
prescribed consultation sessions between the examining team and
the examined country, the preliminary report is presented to the
whole WGB.130 As in Phase 1, all countries have the opportunity to
participate at this juncture; however unlike Phase 1, a break-away
session is subsequently held between the lead examiners and the
examined country to try to resolve differences over recommenda-
tions to be made in the final report.131 Finally, the WGB meets
again to provide input and adopt the final report, including their
official recommendations, which usually include actions the

124. Id.

125. Id. at 462.

126. Id. at 462–63, n.37 (identifying one instance where Italy refused to let the team
meet with law enforcement officials from Milan and noting other instances where resis-
tance to specific panels was only overcome at the last moment after pressure had been
brought to bear on the examined country).

127. Id. at 462. Confidentiality has always been a concern of the Convention. Confi-
dentiality is fully in place for the panels during the on-site visits to encourage full disclo-
sure by participants, and is also in place for many of the WGB sessions and actions. Id. at
466. This has led to criticisms about the transparency of the process and exclusion of non-
governmental organizations and media from a more participatory role. See id. at 466–68.

128. See id. at 462–63.

129. Id. at 463.

130. Id. at 464.

131. Id.

2011] Enforcing Enforcement 155

examined country is required to take, actions recommended for
the examined country, and issues to be followed-up by the WGB.132

The WGB requires a two-step formal process by which the
examined country is required to respond to the Phase 2 evalua-
tion.133 First, an oral report is due to the WGB one year after the
Phase 2 report has been issued to explain what steps have been
taken or planned in response to the report.134 Secondly, two years
after the initial Phase 2 report, the examined country must provide
a written report addressing deficiencies identified by the Phase 2
evaluation to be adopted by the WGB.135 As this is largely a self-
reporting procedure, the examined country’s written report will be
included in the final Phase 2 report, but the Secretariat will draft a
cover letter for the report summarizing the follow-up discussions of
the report.136 The Phase 2 guidelines provide for additional
reporting requirements in the event that a country continually fails
to implement “core matters” of the Convention.137 It remains to
be seen when, if, and how these additional reporting requirements
will be applied.138 While not provided for originally, a “Phase 2
plus” process has been adopted by the WGB in which inadequate
implementation is followed-up by another Phase 2 review.139
Finally, the WGB is planning on implementing a Phase 3 review to
begin in 2010, which will follow a similar review process led by two
examining countries.140 Phase 3 will evaluate outstanding issues
from earlier reviews, as well as evaluate Convention-wide issues dis-

132. Id. at 465 (noting that the examined country has the right to have its views and
explanations reflected in the report).

133. OECD Anti-Bribery Convention: Phase 2 Monitoring Information Resources, at 13, ORG.
FOR ECON. CO-OPERATION & DEV. [hereinafter Information Resources], http://www.oecd.org/
dataoecd/6/21/37916829.pdf (last visited Aug. 7, 2011); Pieth, Low & Cullen, supra note
52, at 470.

134. Information Resources, supra note 133, at 13; Pieth, Low & Cullen, supra note 52, at
470.

135. Information Resources, supra note 133, at 13; Pieth, Low & Cullen, supra note 52, at
470.

136. Information Resources, supra note 133, at 18; Pieth, Low & Cullen, supra note 52, at
471.

137. Pieth, Low & Cullen, supra note 52, at 471.

138. See Information Resources, supra note 133; Pieth, Low & Cullen, supra note 52, at
471.

139. See Country Reports, supra note 94 (identifying Ireland, Japan, Luxembourg, Tur-
key, and the United Kingdom as “Phase 2 plus” countries); see also Information Resources,
supra note 133, at 19; Pieth, Low & Cullen, supra note 52, at 471–72.

140. OECD WORKING GRP. ON BRIBERY, ANNUAL REPORT 2008, at 25 (2009), available at
http://www.oecd.org/dataoecd/21/24/44033641.pdf.

156 The Geo. Wash. Int’l L. Rev. [Vol. 43

covered by the WGB based on weaknesses identified collectively
during the Phase 2 examinations.141

4. Alternative Recourses

Outside of the peer-review review process discussed above, which
can only force compliance with the Convention through indirect
action, the WGB has a limited toolbox to deal with a non-comply-
ing party.142 The WGB can issue official letters to governments or
send high-level political missions to non-complying state parties.143
The final and most important tool the WGB has, and one it has not
fully used yet, is the ‘shame game’–the use of all the Convention’s
influence to publicly pressure a non-complying country into com-
pliance through public statements and press releases designed to
ignite both international and domestic pressure to bring about a
change of policy.144 In one instance, the WGB issued a critical sev-
enty-five page report, bringing significant pressure and attention to
an aborted United Kingdom investigation into the dealings of BAE
Systems in an Iranian arms deal with Saudi Arabia, but failed to
implement any substantial sanctions or follow-up to the highly criti-
cal report.145 The United Kingdom passed an anti-bribery bill into
law in 2010.146

5. Failures

In 2004, Daniel Tarullo, an academic and former senior U.S.
executive branch official who participated in the negotiation of the
Convention as a representative of the United States, provided a
theoretical critique and assessment of the Convention, echoed by
many other critics, and found the Convention to be ineffective as
established and predicted that it would continue to be ineffective
as implemented.147 Tarullo argues that, despite an expansion of
anti-bribery regimes through institutions around the world, there
was little evidence of “any diminution in the incidence of corrup-

141. See id.
142. See Pieth, Low & Cullen, supra note 52, at 472.
143. Id. at 36.
144. See id. at 472; Tronnes, supra note 12, at 123–24.
145. David Leigh, Britain’s Failure to Tackle Corruption Damned Amid New Claims Against
BAE, GUARDIAN (Oct. 18, 2008), http://www.guardian.co.uk/world/2008/oct/18/bae-
arms-saudi-arabia.
146. Press Release, Org. for Econ. Co-operation & Dev., OECD’s Gurr´ıa Welcomes Pas-
sage into Law of U.K. Bribery Bill (Apr. 8, 2010), http://www.oecd.org/document/14/
0,3746,en_21571361_44315115_44960206_1_1_1_1,00.html.
147. See generally Tarullo, supra note 59, at 665–708.

2011] Enforcing Enforcement 157

tion.”148 More specifically, he contends that the implementation of
these anti-bribery regimes, particularly through the OECD’s Con-
vention, have been limited at best.149 Tarullo suggests that the fer-
vor and commitment to combating corruption which led countries
to sign the Convention dissipated as soon as it was signed.150 His
critique describes how the “prisoner’s dilemma” explains why
implementation of the Convention has been so limited: a state can
sign the Convention, thereby responding to the U.S. pressure and
incentives discussed earlier, but still have no intention of actually
complying with the Convention.151 Tarullo describes how the
amorphous sense of repugnance for bribery domestically by signa-
tory nations, and bilateral pressure from the U.S. internationally
which were crucial in getting the Convention signed, did not bring
about the basic incentives necessary for rigorous implementa-
tion.152 First, without direct sanctions on a member country for
noncompliance, the incentives to comply are low, particularly
when considered by a business class that perceives an advantage in
continued bribery.153 Second, the lack of experience and knowl-
edge on the part of the investigators and prosecutors remains an
inherent obstacle for which there is no ready incentive to
counter.154

Tarullo essentially argues that the Convention was signed largely
as a result of U.S. pressure, and in some countries as a result of
domestic pressure, but that neither of these incentives is suffi-
ciently strong enough to overcome the incentives inherent in
enforcement inaction, such as experiential deficiencies, corporate
resistance, and policy and priority choices.155 Moreover, constant
U.S. oversight is not guaranteed and it is extremely difficult for the
United States, the OECD, or any other group to identify specific
instances of noncompliance, because non-enforcement of the Con-
vention presents itself through a negative–the failure to prosecute

148. Id. at 666.

149. Id.

150. Id.

151. See id. at 681–90 (describing the prisoner’s dilemma application to bribery: two
bribe paying companies can both bribe (cancelling out any advantage), neither bribe (can-
celling out any advantage), or one can bribe and the other not (resulting in advantage for
the briber). This incentivizes bribery for companies since there is no risk of disadvantage
and some possibility of advantage).

152. See id. at 687–88.

153. Id.

154. Id.
155. See id. at 668, 682–88.

158 The Geo. Wash. Int’l L. Rev. [Vol. 43

crimes.156 Even the United States, with its institutional advantages
to prosecuting bribery, has real challenges in identifying occur-
rences of bribery, a problem almost certainly more magnified in
other countries.157 Tarullo concludes that if the OECD is to have
any chance of success, the United States must be vigilant and ready
to apply pressure in cases of noncompliance and that the Conven-
tion must develop some informational mechanism to track non-
compliance so that pressure can be applied.158 Lastly, he proposes
one innovative solution–to have the OECD organize a Convention-
wide committee of prosecutors, thereby bypassing larger state
interests in inaction and concurrently improving effectiveness
through the exchange of knowledge and strategies.159

Transparency International (TI), an international organization
founded to combat corruption, has presented a more contempo-
rary assessment of the Convention’s shortcomings, which is of par-
ticular note because of the organization’s prominence and
influence in the field of international corruption.160 TI, founded
in 1993, has been a constant, robust, and often critical observer,
and participant when invited, of the Convention since before its
signing.161 TI and its national chapters assisted in drafting the
Convention, creating a best practices guide, and participating in
the drafting process of the Convention’s implementing legislation
in the chapter’s respective home countries.162

156. See id. at 689–90.

157. See id. at 707–08.

158. See id. at 708–09.

159. Id. at 701–07.

160. See Tronnes, supra note 12, at 110; Burger & Holland, supra note 30, at 72. Period-
icals also play a role as external observers, as do private institutions and other nongovern-
mental organizations, but Transparency International (TI) is the most influential and most
involved third-party participant. See Tronnes, supra note 12, at 110–13. For examples of
other entities involved in monitoring corruption, see Anticorruption, WORLD BANK, http://
www.worldbank.org/html/extdr/thematic.htm (follow the “Public Sector Governance”
hyperlink under “Major Topic Areas”; then click the “Topics” hyperlink on left sidebar;
then follow the “Anticorruption” hyperlink) (last visited Aug. 7, 2011); Reports, GLOBAL FIN.
INTEGRITY, http://www.gfip.org/index.php?option=com_content&task=blogsection&id=11
&Itemid=148 (last visited Aug. 7, 2011); Corruption, GLOBAL WITNESS, http://www.global
witness.org/campaigns/corruption (last visited Aug. 7, 2011).

161. See Tronnes, supra note 12, at 110–11; About Transparency International, TRANS-
PARENCY INT’L, http://www.transparency.org/about_us (last visited Aug. 7, 2011); OECD
Anti-bribery Convention, TRANSPARENCY INT’L, http://www.transparency.org/global_priori-
ties/international_conventions/projects_conventions/oecd_convention (last visited Aug.
7, 2011).

162. See Tronnes, supra note 12, at 111; OECD Anti-bribery Convention, TRANSPARENCY
INT’L, supra note 161.

2011] Enforcing Enforcement 159

TI, with more than ninety national chapters, tracks corruption in
almost all of the signatory countries informally through news
reports of corruption and formally through reports, now issued
annually, which track investigations and prosecutions.163 Over
time, more and more countries have conducted investigations and
prosecutions of bribery, and by 2008, TI found that sixteen of the
thirty-four signing countries conducted significant enforcement of
the Convention.164 In 2009, TI, concerned about enforcement
backsliding in light of pressures created by the global recession,
found that only four countries were active enforcers, eleven were
moderate enforcers, and that twenty-one countries had little or no
enforcement at all.165 TI believes these findings represent a grossly
unacceptable rate of compliance, and suggest that if enforcement
does not improve, it will deteriorate and countries will again allow
their companies to work without the competitive disadvantages of
prohibited bribery.166 TI argues the Convention is not being
enforced due to a lack of political will by senior leadership of non-
complying member countries.167 This lack of will is manifested in
implicit policies, statutory and legal obstacles, and a lack of
resources for investigators and prosecutors.168 TI suggests that
complying governments and the OECD Secretary-General should
put pressure on non-complying countries, and that loopholes used
by those countries, such as the United Kingdom’s use of a national
security exception to avoid prosecuting BAE for foreign bribery, be
closed.169 TI is highly critical of the success of the Convention’s

163. See About Transparency International, supra note 161; see also Foreign Bribery and OECD
Countries: A Hollow Commitment? Progress Report 2009, TRANSPARENCY INT’L (June 22, 2009),
http://www.transparency.org/news_room/in_focus/2009/oecd_pr_2009.

164. FRITZ HEIMANN & GILLIAN DELL, TRANSPARENCY INT’L, PROGRESS REPORT 2008, at 8
(2008), available at http://www.transparency.org/content/download/33627/516718.

165. FRITZ HEIMANN & GILLIAN DELL, TRANSPARENCY INT’L, PROGRESS REPORT 2009, at 8
(2009), available at http://www.transparency.org/content/download/44447/712572/file/
2009_OECD_Progress_Report_final.pdf. This report defines active enforcers as: “Coun-
tries with a share of world exports over two per cent (the 11 largest exporters) that have at
least ten major cases on a cumulative basis, of which at least three were initiated in the last
three years, and at least three were concluded with substantial sanctions. [Also, c]ountries
with a share of world exports less than two per cent that have brought at least three major
cases including at least one concluded with substantial sanctions and have at least one case
pending that was initiated in the last three years.” Id. at 7. The report defines moderate
enforcers as: “Countries that do not qualify for active enforcement but have at least one
major case as well as active investigations.” Id.

166. Id. at 6.

167. Id.

168. See id.

169. See id. at 9.

160 The Geo. Wash. Int’l L. Rev. [Vol. 43

implementation while incongruously being complimentary of the
OECD’s monitoring and implementation efforts.170

As TI highlights, the clearest failure of the Convention, espe-
cially if the expectation is full compliance, is the low number of
countries actively enforcing the Convention.171 Together, the
thirty-two countries who are not sufficiently enforcing their anti-
bribery laws represent a significant portion of the world’s econ-
omy.172 Even with implementing legislation, rigorous oversight,
and recommendations from the WGB, their enforcement failures
can be construed as a failure of the Convention as a whole–if the
laws prohibiting bribery are not enforced, the Convention cannot
achieve its goals.173

The goal of domestic legislation prohibiting bribery is ultimately
not to execute enforcement actions of such legislation, but to
change the country’s corporate culture and eliminate bribery.174
While anecdotal evidence, most notably in the United States, dem-
onstrates that corporate practice has been affected by legislation
implementing the Convention, there is little evidence of real
change globally.175 In his 2004 article, Tarullo notes that TI’s
Bribe Payer’s Index, which ranks the bribing activities of top
exporting countries, showed almost no improvement since the
Convention’s adoption.176 Although corporate culture is inher-
ently difficult to measure, in 2009, TI’s Global Corruption Barome-
ter demonstrated that people continue to feel that government
efforts to combat corruption are ineffective.177 TI’s Corruption
Perceptions Index, which measures the perceived level of public
corruption in different countries around the world, does not seem

170. See id. at 6.

171. See id. at 6, 10. In 2009, only four nations are actively enforcing the Convention;
only eleven were moderately enforcing it; and twenty-one countries had little or no
enforcement. Id. at 10.

172. See Country Comparison: GDP, CIA WORLD FACTBOOK, https://www.cia.gov/library/
publications/the-world-factbook/rankorder/2001rank.html (last visited Aug. 7, 2011);
Country Comparison: Exports, CIA WORLD FACTBOOK, https://www.cia.gov/library/publica-
tions/the-world-factbook/rankorder/2078rank.html (last visited Aug. 7, 2011).

173. See HEIMANN & DELL, PROGRESS REPORT 2009, supra note 165, at 6.

174. See Huguette Labelle, Chair of Transparency Int’l, Address at the Rome Meeting
Commemorating the Tenth Anniversary of the OECD Anti-Bribery Convention (Nov. 21,
2007), available at http://www.oecd.org/dataoecd/43/36/39871721.pdf.

175. See id.; see also Urofsky, supra note 3, at 655–57.

176. See Tarullo, supra note 59, at 684.

177. See TRANSPARENCY INT’L, GLOBAL CORRUPTION BAROMETER 2009, at 3 (2009), availa-
ble at http://www.transparency.org/content/download/43788/701097.

2011] Enforcing Enforcement 161

to have been significantly affected by the Convention.178 Addition-
ally, TI’s 2008 Bribe Payer’s Index found that there was “little
awareness of the [C]onvention among the senior executives inter-
viewed.”179 As TI’s chairwoman observes, no apparent “sea
change” has come yet to corporate culture.180

Proponents of the Convention suggest that it is already success-
ful and focus on examples of where it has already influenced cor-
porate practices, but even those advocates acknowledge that there
is a considerable amount of work to be done before full compli-
ance is realized.181

6. Successes

The success and progress of the Convention from 1997 to 2010
are apparent and substantial. In 1997, anti-bribery legislation and
enforcement was nearly non-existent, with only the United States
enforcing anti-bribery laws through the FCPA and doing so only
sporadically during the twenty years following the FCPA’s enact-
ment.182 In 2010, more than ten years after the Convention went
into effect in 1999, the corruption landscape has drastically
changed; all thirty-eight Convention signatories have conforming
anti-bribery implementing legislation in place, thirty-seven more
than had anti-bribery legislation in 1997, including most of the
world’s largest economies and exporters.183 By 2009, TI reported
that fifteen countries were moderate or active enforcers.184 More
impressively, TI’s list of active and moderate enforcers includes

178. Compare TRANSPARENCY INTERNATIONAL, CORRUPTION PERCEPTIONS INDEX 2010, at
2–4 (2010), available at http://www.transparency.org/content/download/55725/890310,
with The Corruption Perceptions Index (1998), TRANSPARENCY INT’L, http://www.transparency.
org/policy_research/surveys_indices/cpi/previous_cpi/1998 (last visited Aug. 7, 2011).

179. TI Report: Emerging Economic Giants Show High Levels of Corporate Bribery Over-
seas, TRANSPARENCY INT’L, http://www.transparency.org/news_room/latest_news/press_
releases/2008/bpi_2008_en (last visited Aug. 7, 2011).

180. Labelle, supra note 174.
181. See, e.g., Pieth, Low & Cullen, supra note 52, at 37 (citing an instance where a
company, Horton Investments Ltd., was merely suspected of bribery in securing Iranian oil
concessions in a $15.2 million contract and saw $1 billion drop in share value, and had
three senior executives step down before an investigation even began).
182. See supra Part II-A.
183. See OECD Anti-Bribery Convention: National Implementation Legislation, ORG. ECON.
CO-OPERATION & DEV. [hereinafter National Implementation Legislation], http://www.oecd.
org/document/30/0,3746,en_2649_34859_2027102_1_1_1_1,00.html (last visited Aug. 7,
2011); Country Comparison: GDP, supra note 172; Country Comparison: Exports, supra note 172.
184. See HEIMANN & DELL, PROGRESS REPORT 2009, supra note 165, at 6, 10. The four
active enforcers are Germany, Norway, Switzerland, and the United States. The eleven
moderate enforcers are Belgium, Denmark, Finland, France, Italy, Japan, Republic of
Korea, Netherlands, Spain, Sweden, and the United Kingdom. Id.

162 The Geo. Wash. Int’l L. Rev. [Vol. 43

nine of the top ten exporting countries in the world, and six of the
top ten GDP countries.185 Of all the non-enforcing countries iden-
tified by TI, only Canada has a significant export economy.186 Par-
ticularly notable in the list of moderate enforcers is the United
Kingdom, formerly the poster child for non-enforcement, who has,
subsequent to the WGB report on its non-investigation of BAE,
engaged in four successful enforcement actions.187 The success of
the Convention’s monitoring process has also helped result in
headline grabbing enforcement actions, including the Siemens
and Halliburton settlements.188

The Convention’s success can also be seen in its growth; starting
with only thirty-four countries representing the majority of the
world’s GDP and trade, the Convention’s membership has grown
to thirty-eight countries in its first decade.189 More importantly,
Russia was invited to join the OECD in 2009, and China, India, and
Indonesia began taking the first steps toward joining in 2007.190
The addition of these four nations would cement the controlling
interest the Convention collectively has over the world economy
through its members.191

7. 2009 Developments

In 2009, ten years after the Convention went into effect, the Con-
vention added Israel as another new member, recommended
strengthening the language on the prohibition and monitoring of
bribery tax deductibility, and most significantly, adopted the Rec-
ommendation of the Council for Further Combating Bribery of
Foreign Public Officials in International Business Transactions
(2009 Recommendation).192

185. See Country Comparison: GDP, supra 172; Country Comparison: Exports, supra 172.
186. HEIMANN & DELL, PROGRESS REPORT 2009, supra note 165, at 10. For purposes
here, “significant” means greater than a 2% share of world exports, as noted in the report’s
country chart.
187. See Leigh, supra note 145; Steps Taken to Implement and Enforce the OECD Convention
on Combating Bribery of Foreign Public Officials in International Business Transactions: United
Kingdom, ORG. ECON. CO-OPERATION & DEV. (Mar. 3, 2011) http://www.oecd.org/data
oecd/59/21/46881297.pdf.
188. See Heineman, supra note 2; Urofsky, supra note 3, at 655.
189. Ratification Status, supra note 11.
190. See OECD Annual Report: 2009, supra note 43, at 7.
191. See Country Comparison: GDP, supra note 172. Three of these four countries are
within the top ten GDP countries.
192. See Ratification Status, supra note 11; Council Recommendation on Tax Measures, supra
note 55. See generally OECD Working Grp. on Bribery in Int’l Bus. Transactions, Recommen-
dation of the Council for Further Combating Bribery of Foreign Public Officials in International Busi-

2011] Enforcing Enforcement 163

The 2009 Recommendation was developed in consultation with
experts, countries, and organizations around the world, and it
addresses many of the commonly perceived weaknesses of the Con-
vention.193 The provisions of this recommendation include:
prohibiting the use of subsidiaries or agents to circumvent the
Convention’s implementing legislation; tightening control of facili-
tation payments; improving international cooperation of investiga-
tions, prosecutions, and seizures; improving whistleblower
protections; and better engaging with the private sector on best
practices.194 These changes are particularly notable because they
make it easier for the WGB to obtain information about instances
of bribery from other governments, private sector competitors, and
whistleblowers, enabling the WGB to better evaluate the enforce-
ment practices of member countries, a difficult and continuing
challenge in curtailing this surreptitious practice.195 The changes
proposed in the 2009 Recommendation will be integrated into the
general framework of the OECD anti-bribery regime.196

III. ANALYSIS

A. Assessment of the Convention

Assessing the Convention’s success requires evaluating how far it
has come from its inception and how much farther it has to go.
Looking at how far the Convention has come since it was first
adopted, it appears to be a resounding success; but viewed from
how far it has to go to achieve full compliance, it appears to be a
failure.

1. Reasons for Success

The Convention has achieved remarkable success in its first ten
years with all thirty-eight countries implementing legislation and
fifteen countries having at least moderate enforcement levels.197

ness Transactions (Nov. 26, 2009) [hereinafter 2009 Recommendation], available at http://
www.oecd.org/dataoecd/11/40/44176910.pdf.

193. See Review of OECD Anti-Bribery Instruments: Compilation of Responses to Consultation
Paper, ORG. ECON. CO-OPERATION & DEV. (Mar. 31, 2008), http://www.oecd.org/docu-
ment/23/0,3343,en_2649_34859_40497047_1_1_1_1,00.html.

194. See 2009 Recommendation, supra note 192.
195. See Tarullo, supra note 59, at 683, 707–08.
196. See About the 2009 Recommendation of the Council for Further Combating Bribery of For-
eign Public Officials in International Business, ORG. ECON. CO-OPERATION & DEV., http://www.
oecd.org/dataoecd/34/15/44281002.pdf (last visited Aug. 7, 2011) [hereinafter About the
2009 Recommendation].
197. See National Implementation Legislation, supra note 183; HEIMANN & DELL, PROGRESS
REPORT 2009, supra note 165, at 10.

164 The Geo. Wash. Int’l L. Rev. [Vol. 43

Some measure of this success can certainly be attributed to exter-
nal factors, including independent U.S. compliance pressure,
domestic pressure against bribery within some signatory nations,
and a changing international climate that increasingly recognizes
the many costs of bribery.198 A substantial portion of the success,
remarkable in the field of international law, can be attributed to
the specific provisions and framework of the Convention itself.

The substantive reasons for the Convention’s success can be
traced to both the narrowness and flexibility of the Convention.
While the recommendations have certainly added some complexity
to the Convention in an effort to close loopholes, it remains in its
essence a criminal statute that targets the supply side of bribery of
foreign public officials.199 This narrow focus allows the examining
countries and WGB to focus on the manageable list of require-
ments within the Convention–both in the implementing legislation
and in enforcement, without getting distracted by tangential
issues.200

This narrowness is particularly important when combined with
the Convention’s application of functional equivalence in each
country. Functional equivalence provides a certain abstract respect
for each country’s different legal traditions while providing the
practical flexibility to allow the Convention to be uniformly
adopted in each signatory country. Without narrow standards to
apply, it would be easy for examiners unfamiliar with local law to
become lost in divergent legal traditions in trying to assess compli-
ance with the Convention–a certain level of simplicity and narrow-
ness makes rigorous monitoring of a flexible standard
manageable.201

There are also procedural reasons for the Convention’s success
that extend beyond having a narrow, predictable, and prescribed
scope to monitor. The Convention also brings a carefully pre-
scribed monitoring process.202 This process consists of two phases,
one for implementing legislation and one for enforcement, and
has a preliminary questionnaire, a formal peer review by two mem-
ber countries and the WGB, a fair and formal report, and follow-up
reviews in cases of deficient compliance.203 This formal and fair

198. See supra Part II-B.
199. See generally OECD Convention, supra note 54; supra Part II-B(1).
200. See supra Part II-B(1).
201. See supra Part II-B(1).
202. See supra Part II-B(2).
203. See supra Part II-B(2)–(3).

2011] Enforcing Enforcement 165

process makes it effective at identifying deficiencies in the legisla-
tion and enforcement of member countries and also has credibility
that enables it to pressure countries into compliance.

Although the Convention’s procedures have been formal and
implemented as prescribed, the Convention has also been appro-
priately flexible in adopting new procedures where needed. When
it became clear that follow-up reviews were needed to move non-
conforming nations toward compliance, the Convention adopted
comprehensive follow-up reviews.204 More recently, when it
became clear that there was a continued need to monitor and pres-
sure non-enforcing countries and to monitor the adoption of the
2009 Recommendation, the WGB proposed Phase 3 reviewing.205
The Convention has been thoroughly competent in mixing formal-
ity and flexibility in both process and substance, which has signifi-
cantly contributed to the success it has achieved.

Finally and most importantly, there is something inherently self-
reinforcing in the nature of the Convention’s subject matter. An
anti-bribery convention engages the self-interest of nations in an
acute economic way that extends beyond the general human inter-
est seen in much of international law.206 Nations that conform to
the Convention have a very real interest in ensuring that other
nations conform as well, so as not to put their own businesses at a
disadvantage when competing in the international marketplace.207
This can be seen even in the genesis of the Convention, where a
disadvantaged U.S. business community put substantial pressure
on the U.S. government to initiate an international convention
that put the same bribery restrictions on international competi-
tors.208 Consequently, the more nations that conform, the more
nations there are with acute incentives to pressure the non-con-
forming nations to comply with and enforce the Convention. This
self-reinforcing cycle will strongly incentivize compliance once a
critical mass of countries conforms to the Convention. While this
cycle is difficult or maybe impossible to measure, it likely plays an
important role in the success or failure of the Convention.

204. See supra Part II-B(2).
205. See About the 2009 Recommendation, supra note 196.
206. See, e.g., Razzano & Nelson, supra note 35, at 1260, 1273.
207. See HEIMANN & DELL, PROGRESS REPORT 2009, supra note 165, at 6.
208. See supra Part II-A.

166 The Geo. Wash. Int’l L. Rev. [Vol. 43

2. Reasons for Failure

The failure of the Convention is clear when measured against
full compliance–only four nations are active enforcers and twenty-
one nations have little or no enforcement of the Convention.209
The lack of any apparent change in worldwide levels of corruption
or corporate culture demonstrates the Convention’s failure to
achieve its broader goal of eliminating bribery entirely.210 Cer-
tainly some of this failure can be attributed to the inertial problems
of changing ingrained corrupt business practices and traditions,
but it also can be attributed to shortcomings in the Convention
itself. This change is made more difficult by the added economic
pressure on countries and businesses from the economic downturn
following the 2008 financial crisis.

Many of the clearest potential substantive reasons for the Con-
vention’s failures have been addressed in the 2009 Recommenda-
tion–subsidiary bribery, facilitation payments, more international
cooperation, more whistleblower protections, and more private
sector participation.211 It is too early to tell how well these modifi-
cations will be integrated into the implementing legislation and
enforced, but they certainly address some of the most obvious sub-
stantive shortcomings of the Convention.212 Other substantive
deficiencies that have been identified include the Convention’s
failure to cover political party bribes and private-to-private sector
bribes.213 Also, the lack of preventative measures in the Conven-
tion makes it entirely dependent on enforcement deterrence to
effect change in bribery practices.214

Other reasons for the Convention’s failures can be traced to
intentional choices made in its construction. Its limited, supply-
side scope does not comprehensively attack bribery by also address-
ing the demand-side recipient as well.215 The functional equiva-
lence standard may be too broad and amorphous–especially
because criminal statutes usually are robust, uniform, and spe-
cific.216 This indeterminate standard makes the Convention diffi-
cult to monitor and enforce, and likely contributes to its failures.

209. See HEIMANN & DELL, PROGRESS REPORT 2009, supra note 165, at 10.
210. See supra Part II-B(5).
211. See 2009 Recommendation, supra note 192.
212. See George, Lacey & Birmele, supra note 49, at 515–23.
213. Id. at 520, 522–23.
214. See generally OECD Convention, supra note 54.
215. See George, Lacey & Birmele, supra note 49, at 518–19.
216. See Tronnes, supra note 12, at 117–19.

2011] Enforcing Enforcement 167

There is really only one glaring deficiency in the Convention’s
procedures, whose monitoring process has been called the “gold
standard.”217 Generally, the formal, fair, and prescribed nature of
the monitoring process, structured around the WGB through
shared monitoring responsibilities and engaged participation
between the reviewer and the reviewee is effective at identifying
compliance defects. However, there is no direct accountability
mechanism to ensure compliance.218 There are soft pressures that
can be applied to non-complying countries including official let-
ters, high-level diplomatic missions, bilateral pressures from other
member countries, or outright public denunciation through
reports and press conferences, but there is no way to directly
enforce accountability.219 The peer review process itself can be
used to pressure countries, but it still cannot directly enforce
accountability.

This accountability weakness was central to Tarullo’s realist cri-
tique of the Convention.220 He identified that the positive incen-
tives for joining the Convention, including the benefit of positive
public relations and of pleasing the United States with implement-
ing legislation, come at no real cost. However, enforcement of the
Convention has very real costs, both in terms of budgetary
prosecutorial expenses and in terms of overcoming the businesses’
incentives where businesses are accustomed to using bribery to win
contracts and make profits.221 These costs cannot be counteracted
by any substantive accountability from the Convention. Faced with
concrete domestic pressure from a business community committed
to maintaining existing business practices, which may often include
bribes, and with no countervailing incentives, it is unsurprising that
most Convention members are not enforcing the Convention.
This accountability weakness is the most important reason for the
Convention’s failures.

Lastly, the reinforcing nature of the Convention cuts both ways.
If most nations are complying with the Convention, they have
important incentives to pressure non-complying nations to comply
so as not to put their own businesses at a disadvantage. However, if
most nations are not complying with the Convention, each nation
will be put under pressure from their own domestic businesses to

217. See About the 2009 Recommendation, supra note 196.
218. See supra Part II-B(2).
219. See supra Part II-B(2)–(4).
220. See Tarullo, supra note 59, at 665–68.
221. See supra Part II-B(5).

168 The Geo. Wash. Int’l L. Rev. [Vol. 43

avoid compliance and enforcement so as to avoid having competi-
tive disadvantages in the international market. The sheer number
of non-complying countries today puts pressure on the other non-
complying countries to continue to not enforce the Convention so
as not to lose a competitive advantage vis-a`-vis the other non-com-
plying countries and their businesses.222 This self-reinforcing cycle
is as much a reason for the Convention’s failures as it is for its
successes.

3. A Qualified Success

The Convention has not yet achieved full compliance or a world-
wide sea change in the international corporate culture of bribery
that it set out to achieve; however, the Convention also has not
been the utterly impotent failure that some predicted. In assessing
the Convention’s success today, it is critical to look at what has hap-
pened in the ten years since the Convention came into effect.
There are thirty-eight nations who have implemented conforming
legislation and who represent a majority of the world’s economic
production and exports.223 There are fifteen nations with at least
moderate levels of enforcement, representing almost all of the
strongest economies among signatory members.224 This is remark-
able progress, especially considering that the only similar legisla-
tion, the FCPA, took decades to achieve significant levels of
enforcement.225

Moreover, the momentum of the Convention seems to be mov-
ing toward continued success. The trend over the last five years has
seen the addition of new member nations and increasing numbers
of investigations and enforcement actions.226 This assessment is
bolstered by the progress of 2009 with the addition of another
country, the tightening of tax restrictions on bribery, and the 2009
Recommendation, which closed the most egregious loopholes in
the Convention.227 These actions are encouraging for continued
future momentum, but by no means is full compliance and a

222. For the first decade after its enactment, this was true for the FCPA as well in the
United States, where the business community tried to force its repeal and minimize its
enforcement. Failing to repeal the statute, U.S. businesses turned to an effort to interna-
tionalize these standards, which ultimately resulted in the Convention. See Tarullo, supra
note 59, at 672–75.

223. See supra Part II-B(6).
224. See supra Part II-B(6).
225. See supra Part II-A.
226. See supra Part I.
227. See supra Part II-B(6).

2011] Enforcing Enforcement 169

change in the international culture of bribery certain. The pro-
gress of the Convention’s first decade allows it to be viewed as a
success, but one qualified by an unfinished mission to achieve full
compliance and curtail the practice of bribery of public officials.
Even after compliance is achieved, the fundamental challenges of
enforcing a law that punishes a crime difficult to identify and com-
plicated to prosecute will not diminish.228

This qualification is particularly important to the Convention
because of the precarious, dynamic nature of the enforcement
incentives of the Convention. While this tension can be found in
most international law, it is particularly acute here because of the
powerful domestic commercial export interests that are directly at
stake. The self-reinforcing nature of the incentives in the Conven-
tion pressures minorities to align with the majority, either for or
against compliance. In the case of compliance, other nations will
externally pressure non-complying nations to comply to avoid leav-
ing their businesses at a competitive disadvantage. Even when a
country would like to comply, the cost to other priorities and the
investigatory and prosecutorial experiential deficit must be over-
come. In the case of noncompliance, nations will be pressured
internally to avoid compliance by commercial interests that do not
want to be competitively disadvantaged.

This makes achieving Convention compliance in a critical mass
of member countries vitally important. Today, the Convention has
four active and eleven moderate enforcers out of thirty-eight coun-
tries.229 The Convention appears to be at a critical tipping point
where it is near to achieving a critical mass of active enforcing
countries, especially accounting for the economic and political
strength of those fifteen countries, which would likely lead toward
full compliance and a substantial effect on eliminating the practice
of bribery. The next ten years are critical to ensure that the self-
reinforcing incentives work for the Convention instead of against
it.

While the Convention’s momentum is encouraging, it continues
to be hamstrung by the lack of a direct accountability mechanism
for non-complying nations.230 This fundamental weakness in
enforcement is both obvious and difficult to solve; a solution would
make full compliance to the Convention and its ultimate success
quicker and more certain.

228. See Tarullo, supra note 59, at 707.
229. See supra Part II-B(5).
230. See supra Part II-B(2).

170 The Geo. Wash. Int’l L. Rev. [Vol. 43

B. Solution

To reiterate, the OECD’s mission is to “promote policies that will
improve the economic and social well-being of people around the
world.”231 Implicit in this mission and throughout the OECD’s his-
tory expanding trade through encouraging economic cooperation
is and has been one of the central tenets of the OECD.232 For the
long term interests of the Convention, the OECD should compro-
mise some on its commitment to expanding trade in order to give
the Convention the accountability mechanism it needs to be
successful.

The best accountability mechanism solution to compel enforce-
ment of the Convention would be through trade sanctions. Trade
sanctions should be enacted by complying Convention members
against countries the WGB finds to be non-complying. This added
accountability support for the Convention simultaneously serves
the rest of the OECD mission-supporting sustainable economic
growth, boosting employment, raising living standards, maintain-
ing financial stability, and assisting other countries’ economic
development.233

Historically, economic sanctions have been an action of last
resort for countries and international organizations,234 and there
are three reasons why sanctions are not only an appropriate mech-
anism for the Convention, but a perfect fit. A comprehensive tariff
or import tax is both the simplest and best solution; although,
product or industry-specific trade barriers, import quotas, and
export quotas could also be used judiciously to exert targeted pres-
sure on the non-complying country.

First, a tariff can be imposed on a targeted country without that
country’s consent and without violating its sovereignty. The WGB
can enforce sanctions through other Convention countries, per-
haps through a majority or supermajority vote among member
countries, which avoids the problem of forcing a country to volun-
tarily and rigorously punish itself, an act inherently against its self-
interest. Economic sanctions, even minor ones, against Conven-
tion countries, which are almost exclusively first and second world
countries unused to being sanctioned, would be viewed unfavora-

231. About the Organisation, supra note 39.
232. See id.; OECD History, supra note 40.
233. See About the Organisation, supra note 39.
234. See supra Part II-B(2).

2011] Enforcing Enforcement 171

bly by any country so targeted.235 This fear of trade sanctions by
these countries only serves to underline the potential effectiveness
of such a mechanism to achieve compliance. Countries would be
strongly incentivized to fix problems and upgrade enforcement
quickly so as to avoid the direct negative economic consequences.

Second, economic sanctions would be an easy sell domestically
for the countries that would need to implement and enforce the
sanctions. Tariffs that protect local businesses from foreign com-
petition will garner support from those businesses. Unlike tradi-
tional tariffs, the support for these tariffs will be much broader
because they sanction only countries with businesses that allow for
the corrupt bribery of foreign public officials. A coalition between
commercial interests and broader society, including humanitarian
groups concerned about the effects of bribery on the developing
world, would make passing legislation implementing the sanctions
a win-win. In addition to pleasing diverse constituencies, an imple-
mentation of tariffs would bring in revenue for the implementing
countries’ governments, always a welcome side effect.

Finally and most importantly, the nature of the tariffs would
allow the Convention to devise a structure that would appropriately
incentivize non-complying nations to comply. The WGB possesses
the unique expertise to design and implement a sanction
regime.236 The 2009 Recommendation also gives a platform for
better coordination between governments and their constituent
entities–the development of Tarullo’s prosecutorial committee
composed of prosecutors from all Convention countries would be a
worthwhile use of this platform.237 Additionally, the 2009 Recom-
mendation’s mandate to increase coordination with private sector
corporations, who are often the most invested and knowledgeable
of specific instances of corruption when they lose out on a contract
due to bribery, extends the WGB’s reach and capabilities. The
WGB should also continue and increase its use of civil society non-
governmental organizations, particularly TI, to inform it and
should also draw on other organizations from around the world.

The WGB’s unique ability to design, coordinate, monitor, and
adjust a sanction regime could be used to ensure compliance. The

235. See Stalls, supra note 75, at 118–19 (noting the drastic impact economic sanctions
can have on a country).

236. See supra Part II-B(2) (discussing the WGB’s familiarity with OECD member coun-
tries and their history with bribery, and discussing the monitoring and feedback structure,
which could be amended to include trade sanctions if countries fail to comply with the
OECD Convention).

237. See Tarullo, supra note 59, at 702–07.

172 The Geo. Wash. Int’l L. Rev. [Vol. 43

WGB could first impose a tariff at a proportional, perhaps even
minimal, level, which would negate any economic advantage or
incentive achieved through bribery by non-complying countries
and their companies. By eliminating this economic advantage to
companies in non-complying countries, the incentive for compli-
ance becomes much greater. Companies within the country that
do not participate in corrupt bribery schemes will be penalized by
blanket sanctions imposed by the WGB, and are likely to rigorously
advocate for compliance to avoid tariffs. This would also eliminate
the incentive for companies in complying countries to advocate for
noncompliance in order to gain a competitive advantage because
they would be aware than any such advantage gained would be
negated by the imposition of economic tariffs on their exporting
activities. In effect, these sanctions would level the playing field
artificially by offsetting the disadvantages to companies in comply-
ing countries, which is the biggest concern for those companies.

If economic sanctions failed to bring countries into compliance,
either because the benefit of noncompliance is underestimated or
because other incentives were keeping the country from con-
forming, the WGB could increase the tariff level to a punitive level
in order to achieve compliance. Alternatively, or additionally, the
WGB could target specific industries that were especially corrupt,
especially pernicious, or particularly important with a tariff, a trade
barrier, or with export/import quotas. The ability to target sanc-
tions coupled with the collective economic power of Convention
member countries would maximize the effectiveness of these
measures.238

While the political difficulties of implementing sanctioning legis-
lation within particular complying countries should be relatively
easy to overcome, getting this procedural accountability sanction-
ing mechanism adopted by the Convention could be very difficult.
This difficulty is exacerbated by the OECD’s mission and the multi-
lateral efforts of the last 150 years to eliminate tariff barriers. Con-
vention countries are not accustomed to being sanctioned and are
unlikely to be interested in even exposing themselves to the possi-
bility of financial and reputational harm that accompanies sanc-
tions, particularly on an issue that seems benign compared to the
genocidal or nuclear activities that usually provoke sanctions.

238. The power of the Convention collectively and its ability to directly target bribery
would make it distinct from the ineffective sanctioning efforts seen in the last twenty years.
See Stalls, supra note 75, at 146–52.