The United Nations Convention Against Corruption and legal frameworks for

corporate integrity

International legal instruments / standards

• UNCAC • OECD Convention on Bribery of Foreign Public

officials • CoE Conventions (civil and criminal law against

corruption)

Standards / best practices • G20 high level principles on transparency and integrity

in the private sector

1. CRIMINALIZATION OF CORRUPTION AND LAW ENFORCEMENT RELATED TO THE PRIVATE SECTOR

UNCAC - Criminalization – law enforcement

• Bribery of national public officials (article 15),• Bribery of foreign public officials (article 16), • Bribery in the private sector (article 21)• Embezzlement of property in the private sector

(article 22)• Liability of legal persons (article 26)• Protection of reporting persons (article 33)

• Article 39. Cooperation between national • Authorities and the private sector

Art 21: bribery in

the private sector

Art 26: liability of

legal persons

Art 33 whistleblowers protection

Art 15-16 bribery & bribery of

foreignofficials

Address the Active Bribery gap!

The promise, offering or giving, to a public official, directly or indirectly,of an undue advantage, for the official himself or herself or anotherperson or entity, in order that the official act or refrain from acting in theexercise of his or her official duties;

1. State Party shall[..] establish as a criminal offence,[..], the promise, offering or giving to a foreign public official or an official of a public international organization, [..], of an undue advantage, [..], in order that the official act or refrain from acting in the exercise of his or her official duties, in order to obtain or retain business or other undue advantage in relation to the conduct of international business.

For local businesses:- Due diligence requirements if working with third

parties abroad - Local businesses may engage liability of foreign

partners

Art 16. Bribery of foreign public officials

Bribery of foreign public officials – why it matters

• UNCAC review: In the majority of the countries of the region either not penalised or penalised but not enforced

Crime typologies (foreign bribery cases)

• Payments to government officials in the form of money, non-cash gifts and services, to obtain undue advantage

• Abuse of hospitality and entertainment • Facilitation payments disguised as charitable donations

• Concealed utilisation of sales agents – e.g. through sub contracting local companies (which did not pass the Company’s internal diligence requirements).

• Hiring consultants for improper services

• Falsification of books and records to conceal payments

Private sector corruption

• The promise, offering or giving (or solicitation) , directly or indirectly, of an undue advantage to any person who directs or works, in any capacity, for a private sector entity, for the person himself or herself or for another person, in order that he or she, in breach of his or her duties, act or refrain from acting;

• The big absent !

Art 26. Liability of legal persons

1.Each State Party shall adopt such measures [..] to establish the liability of legal persons for participation in the offences established in accordance with this Convention.

2. [..] the liability may be criminal, civil or administrative.

3. [..] shall be without prejudice to the criminal liability of the natural persons

4. Each State Party shall ensure that legal persons held liable [..] are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.

- Civil liability- Criminal liability - Administrative liability

Sanctions: • pecuniary penalty, forfeiture • publication of an extract of the judgement, • partial or total loss of tax incentives and benefits • Debarment from entering public tenders• cancellation of authorizations, deprivation of business licenses • prohibition of capital increases, and temporary prohibitions from

engaging in commercial or other activities,• dissolution

• UNCAC requires establishment of protection of reporting persons mechanisms

• Legal framework• Institutions to receive complaints And ensure protection • Responsibility of the private sec.

Whistleblowers protection

Range of protective measures / good practices (amongst others)

• Guarantee of confidentiality

• Significant penalties for retaliation

• Reversal (either wholly or in part) of the burden of proof

• Protection against civil or criminalliability

• Compensation for damages and retaliation

• Physical protection

2. PREVENTION OF CORRUPTION IN THE PRIVATE SECTOR

UNCAC Art.12 – Prevention of corruption in the private sector

Each State Party shall take measures, • to enhance accounting and auditing standards in

the private sector

• provide effective, proportionate and dissuasive civil, administrative or criminal penalties for failure to comply with such measures.

UNCAC Art.12

Promoting: • cooperation between law enforcement agencies and private

entities• the development of standards and procedures to safeguard the

integrity of private enterprises• private sector transparency (beneficial ownership)Preventing:• the misuse of procedures regulating private entities such as

subsidies and licences.• conflicts of interest involving former public officials

Ensuring that private enterprises have sufficient auditing controls

Critical areas:

• Intermediaries

• Gifts – hospitality

• Request for payments for routine actions

• Political contributions and charities

UNODC Tools http://thefightagainstcorruption.org/

E- learning courses on anti corruption https://www.unodc.org/elearning/

Thematic tools and publicationshttps://www.unodc.org/unodc/en/corruption/publications.html

For more information:

www.unodc.org/corruption

www.track.unodc.org

Francesco ChecchiAnti Corruption Adviser UNODC, Regional Centre for Southeast Asia and the Pacific

Francesco.checchi@unodc.org