Anti-Corruption Measures: A Comparative Survey of Selected National and International Programmes

INTRODUCTION: CORRUPTION AND THE LAWThe term corruption is commonly used todescribe a wide range of social conducts, whichare condemned and rejected by societies allover the world as dishonourable, harmful andevil. As the synonymy word can illustrate, theidea of corruption is associated with somebasic sentiments of rejection: that which is cor-rupt, is also rotten, contaminated, depraved ordegenerate.

Corruption refers to a wide range of irregu-larities, ranging from the granting of simplepersonal favours or lack of objectivity in themaking of a decision, or simple cases of malad-ministration, to severe conspiracies which cansabotage the well being of a nation. Mostimportantly, the monies paid and received asbribes are in most instances the least part of theresulting damage. Bad or wrong decisions andchoices resulting from corruption can cost acountry its development prospects for years tocome, and amount to hundreds of millions ofdollars in wasted efforts or lost opportunities.

Various types of corruption can be distin-guished:

First, there is both economic as well as politi-cal corruption. Economic corruption in thepublic sector has traditionally been the focus ofanti-corruption legislation. Every legal systemin the world has its own and comprehensivehistory of legislation dealing with this classictype of corruption, mostly confined to enact-ments of criminal offences such as bribery.However, political corruption is arguably aconduct that is equally if not more undesirable.An official who disadvantages a citizenbecause he believes that citizen to be opposed

to the political views favoured by himself (orby the government of the day) is as misguidedin the exercise of his discretion as if he hadallowed himself to be influenced by some per-sonal economic benefit. To penalise only theoffering and accepting of economic benefits, isoften seen to be inconsistent and lacking incredibility, where a politically motivatedadministrative bias is tolerated or even encour-aged, sometimes by the same authorities thatare supposed to combat (economic) corruption.

Second, corruption cannot be confined to itsmanifestations in the public sector. Private sec-tor corruption is often the root cause of publicsector corruption. It is normally the private sec-tor that is economically stronger, and in a posi-tion to penetrate even the most determined andupright resistance against corruption in thepublic sector. Before a public servant becomescorrupt and invites a bribe, he must have beeninitially corrupted by someone who will nor-mally not be working as a public servant, butrather in the private sector, and more often thannot, for a foreign or multinational corporation.

Traditionally, private sector corruption hasbeen addressed as a matter of good businessethics and practices and in terms of special leg-islation, such as laws against unfair businesspractices and unfair competition. It has beenwidely held that good business practices areself-regulatory, and are best enforced by themarket forces and competitors themselves, whowould act and enforce good practices in theirown best interests, eliminating those who breakthe rules of business, by competing unfairly,for instance by offering to pay a bribe. It hasalso been held for a long time that the legal

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Anti-Corruption Measures: A ComparativeSurvey of Selected National and

International Programmes

André Thomashausen

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threat of a contract being considered null andvoid under common law, by virtue of animproper (or corrupt) influence or interferenceat its outset, would act as a strong deterrentagainst private sector corruption.

Developments since the end of the 1970sshow, however, that international organisationsand individual states alike have perceived theneed to counter private sector corruption in amore decisive and proactive fashion. The trendtoday is to (a) criminalise corrupt acts of private sector officials, even when committedoutside their national jurisdiction, and (b) toprovide special protection and immunity foremployees reporting malpractices and incidentsof corruption. This paper thus concentrates onfour main parts: • A brief summary of essential general legal

principles that will impact on any measuresdestined to combat corruption.

• An illustration of conventional but neverthe-less innovative criminal law instrumentsdesigned to combat corruption, by way ofreference to legislation adopted in Germanyand Argentina.

• The English example of legislation adoptedto encourage individual resistance againstand reporting of corrupt practices.

• The paper will summarise developments inthe United States (US) and in internationallaw destined to combat corruption by target-ing private sector corruption.

1. FUNDAMENTAL CRIMINAL LAW PRINCIPLESCertain fundamental criminal law principles areshared by all countries of the civilised world.“Civilised world”, in this context, means thosenations which are referred to in article 38 (1)(c) of the Statute of the International Court ofJustice in the Hague, where it is said that “thegeneral principles of law recognised bycivilised nations” are a source of internationallaw. Three fundamental criminal law principlesfigure among these general principles of law:

First, the principle nullum crime sine lege, i.e.the requirement that all aspects of punishment,including preconditions for its imposition as wellas type and severity, must be defined by law.

Second, the principle in dubio pro reo, mean-ing that anyone will be presumed innocent untilproven guilty, beyond reasonable doubt.

Third, the rights of due process and hearing,including the prohibition of special or ad hoc

courts, i.e. essentially the principles of naturaljustice.

The above principles are the achievements ofthe era of enlightenment, following the FrenchRevolution, and are today at the core of allinternational and national human rights stan-dards and instruments. A tragic misunderstand-ing – which has been propagated for some timeat English and South African law schools – isthat continental legal systems would presumean accused person guilty until proven innocent.Such reversing of the burden of proof in crimi-nal proceedings was practised only in the “darkages” of the Catholic Inquisition, and perhaps ithas been the characterisation of Continentalcriminal procedure as “inquisitorial” (as oppos-ed to “accusatorial”) which might account forthis fundamental misunderstanding of moderncriminal procedure law beyond common lawjurisdictions.

In modern times, a presumption of guilt hasbeen practised only in the recently defunct com-munist countries, as well as by various extremistdictatorships, mostly for state security purposes,but also – in the communist world – in the con-text of crimes of “economic sabotage”.

The important conclusion to be drawn fromthe above observations is that the modern dayhuman rights standards and requirements of therule of law impose certain limitations on anycriminal law measures destined to combat cor-ruption. A state of law can only act in accor-dance with the material and formal require-ments of the rule of law. Its moral imperative isthat criminal conduct can only be counteredwith strictly lawful means, however great andsevere the need for enforcement may be. Underno circumstance may the correct notion of jus-tice and fairness in the law be compromised, asthat would impact negatively on the moralauthority and thereby on the effectiveness ofthe administration of justice. In the case of eco-nomic crime, which will often also manifestitself as organised crime, such imperatives cantest the means of a legal system to its very lim-its, calling for ancillary educational, social,political and economic measures.

2. CONVENTIONAL ANTI-CORRUPTION LEGISLATION2.1 Germany2.1.1 BriberyIn Germany, corruption is dealt with, first and

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foremost, in terms of the classic corruptionoffenses. The offenses dealing with “passivebribery” (arts. 331 and 332 of the Penal Code)punish officials who accept bribes, while theoffenses dealing with “active bribery” punishpersons offering, promising or furnishing abribe (arts. 333 and 334 Penal Code). Theobject of the legal protection is in both casesthe confidence of the general public in theobjectiveness and integrity of officials.

The German bribery offenses have been legis-lated with considerably more detail and carethan their counterparts in most common lawcountries. As a result, and provided the offencesare effectively prosecuted, both public serviceand private sector corruption are targeted when-ever an administrative decision is involved.

Both in the cases of “passive” and “active”bribery (as defined above), some important dis-tinctions can be pointed out. First, the law dis-tinguishes between cases where the official actperformed is as such lawful on the one hand,and on the other hand, where, in addition tobeing the consequence of bribery, the officialact as such constitutes a breach of any law orofficial duty, other than the offense of bribery.Evidently, the latter cases provide for moresevere punishment.

A second important group of distinctions pro-vides for immunity from punishment in thosecases where the official has either obtained per-mission to accept a benefit, or where he hasduly reported the circumstances constitutingbribery. This group of exceptions creates astrong incentive to report any attempts or casesof bribery. It also allows for a relatively easydecriminalisation of borderline cases, whichcan be considered acts of mere courtesy orfriendship. In common law countries, in partic-ular in England, this well established legal tech-nique has been introduced but very recentlyunder the somewhat unfortunate heading of“whistleblowing” legislation.

Finally, it can be noted that all briberyoffenses involving judges or arbitrators carry amore severe punishment in Germany – themaximum term of imprisonment in the mostsevere group of cases being 10 years’ imprison-ment.

In addition to the above “classic” briberyoffenses, a number of other provisions inGerman law are designed to deal with corrup-tion.

2.1.2 Forfeiture of benefitsAn important deterrent against corruptioncrimes is the instrument of forfeiture and con-fiscation of the economic gain which has beenobtained by the perpetrator. Forfeiture and con-fiscation are laid down in ss 73-75 of the PenalCode.

S 73 deals with forfeiture and reads as fol-lows:

“Section 73(1) If an unlawful act has been committedand the perpetrator or the accessoryacquired any economic gain for or from theoffence, the court shall order its forfeiture.This rule shall not apply to the extent thatthe victim has a civil claim based on thecrime, satisfaction of which would elimi-nate or reduce the economic gain acquiredby the crime.(2) The forfeiture order shall cover any ben-efits derived from the offence. It may alsoreach objects which the perpetrator or theaccessory had gotten by disposing of theacquired object, or as replacement for itsdestruction, damage or seizure, or on thebasis of some acquired right.(3) If the perpetrator or accessory acted foranother, and this other person received theeconomic gain, the forfeiture order undersubparagraphs (1) and (2) shall be directedagainst him.(4) The forfeiture of an object shall also beordered if it belonged or was owed to athird party who provided the economic gainfor the offence or otherwise with knowledgeof the circumstances of the offence.”

The perpetrator must have committed anunlawful act and thus acquired any economicgain. Economic gain in this context can meanmovable things of any kind, including aircraftsand ships, as well as fixed property, but alsocontractual rights. According to case law, eco-nomic gain means any increase in the value ofassets.

The forfeiture order does not only cover thedirect economic gain but also any benefitsderived from the offence, paragraph (2).

Section 73a of the Penal Code deals with theforfeiture of the replacement value. To theextent that forfeiture of a particular object is notpossible because of its nature, the court shallorder forfeiture of a sum of money equal to themoney of the acquisitions. The court shall make

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such an order in addition to the forfeiture of anobject to the extent that the object’s value fallsshort of the value of what was acquired first.

The effect of forfeiture is as laid down in s 73d of the Penal Code, i.e. the property orother rights in the object are transferred to thestate when the judgment becomes final. Therights of any third parties to the object remainunaffected.

The other specifically economic sanctionagainst corruption crimes is confiscation.Section 74 of the Penal Code provides as fol-lows:

“Section 74(1) Objects which have been producedthrough an intentional crime or which wereused or designed for use in the preparationor commission of it may be confiscated.(2) Confiscation is permissible only if:

1. the objects belong or are owed to theperpetrator or an accessory at the time ofthe judgment, or2. the objects, because of their nature andthe surrounding circumstances, endangersociety, or a danger exists that they willbe used in the commission of unlawfulacts.

(3) Provided the conditions set forth in sub-paragraph (2) number 2 are met, the confis-cation of objects is also permissible wherethe perpetrator acts without guilt.(4) If the confiscation is prescribed or per-mitted by a special provision over andabove that set forth in subparagraph (1), theprovisions of subparagraphs (2) and (3)shall correspondingly apply.”

Any kind of object can be confiscated, not onlythings but also rights, interests in land, or evenclaims. The objects must have been either pro-duced through the crime – producta sceleris –or used or designed for use in the preparation orcommission of the crime – instrumentasceleris. As regards the offenses in office, thebenefit (money) which the government officialrejected can be confiscated because it is not theobject of the criminal offence; the object of theoffenses of ss 333 and 334 Penal Code is thefuture performance of an official act, and assuch it cannot be confiscated since s 74 doesnot apply to the objects of a criminal offence.

2.1.3 ProcedureIn addition to the above characteristics of

German penal law, procedure is of course cru-cial. The most import general feature ofGerman criminal procedure is that which isoften referred to, in common law countries, asthe inquisitorial principle. The German conceptis the ex officio or legality principle, meaningthat all acts and measures of the prosecution (orthe police, acting as agents of the prosecution),are carried out on the basis of own initiative,and that the police and the prosecution do nothave discretion in deciding whether to prose-cute or not.

Thus, whenever there is reasonable indicationthat a criminal offence has been committed, thepolice and the prosecution are under a duty bylaw to conduct an investigation, and if theinvestigation produces reasonable certainty thata crime was committed, the prosecution isobliged to submit an indictment to the compe-tent court. Similarly, the trial court is empow-ered to make any suitable orders, and to lead itsown evidence, and is not dependent on beingpetitioned to do so by either the prosecution orthe accused. Generally, a suspect will have totolerate most measures adopted by the prosecu-tion for the purposes of their investigation, asthe remedies available to resist questioning,seizure of potential evidence, warrants ordetention pending trial, will only protect thesuspect against gross abuses of discretion orsubstantial failure of the prosecution to followprocedures prescribed by law. The protection ofthe rights of a suspect are generally deferred tothe trial stage. To illustrate this, it may help topoint out that a suspect who has been detainedpending trial may demand payment of certainfixed amounts of compensation in the event ofan acquittal.

Finally, it should be noted that the GermanJudicature Act (Gerichtsverfassungsgesetz –GVG) makes special provision for cases involv-ing business offenses. Section 74c (1)(6) GVGprovides that criminal offenses such as, interalia, offering a bribe – s 333 of the Penal Code– and offering a bribe to induce a violation ofduty – s 334 of the Penal Code – shall fallunder the jurisdiction of a particular division ofthe courts (the Division for Economic Offens-es), whenever the prosecution deems that theassessment in law of the offense requires spe-cial knowledge of economic activities or busi-ness transactions.

The special knowledge of and experience in

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business transactions with which the Divisionfor Economic Offenses must be equippedrelates to the particular rules and procedures inbusiness life. The judges of the courts’ Divisionfor Economic Offenses normally have therequired background knowledge about businessactivities and transactions. They will normallyhave acquired special qualifications in book-keeping, accounting or tax law, and will befamiliar with financial statements and balancesheets.

Similarly, the prosecution offices will haveown divisions dealing exclusively with crimesof corruption, and may ad hoc enlist the assis-tance of experts, such as chartered accountantsor tax consultants.

2.2 ArgentinaTurning to Argentina, the first pertinent con-trast is that the country and its legal system didnot benefit – as in the case of Germany – fromdecades of economic, social and political stabil-ity. On the contrary, after a succession of mili-tary and civilian governments since World WarII, Argentina as a nation collapsed economical-ly during the 1980s, when inflation reached anall-time high of more than 4000% a year.Together with financial chaos, the country’shuge foreign debt (rescheduled unsuccessfullyover the years) provoked an ever growing andgrossly inefficient and helpless state apparatus.Under such circumstances, irregularities andcorruptive practices became a way of life.Argentina can thus serve as a pertinent exampleof a nation that was successful in completelyturning around the disastrous direction of itspublic affairs, and attaining an astounding eco-nomic recovery in a matter a few years.

Argentina’s reform administration took officein 1989. A mere three years later, in 1992, eco-nomic growth increased to a net 6% of grossdomestic product (GDP), inflation was con-tained at 17% and the national currency – thepeso – had been stabilised at one to the US dol-lar, with all exchange control regulations hav-ing been lifted. What was the recipe forArgentina’s miracle?

It is clear, more than 10 years on, that the keyto success in 1989 was that the new govern-ment did not hesitate in identifying and con-fronting the country’s two main problems:namely, the disastrous economic situation andthe dismantling of the so-called “culture of cor-

ruption”, manifested especially within the pub-lic sector. At the opening of Parliament on 1May 1990, the newly elected president declaredthat the main obstacle to be overcome by hisadministration would be “a knot in whichbribery, daily thefts, pressure groups andenclaves of feudal privilege are entangled”. Thepresident stated that honesty in the public func-tion was essential to preserve democracy, aswas the trust of the population in the personalcapacity and integrity of public officials. Hefurther qualified administrative corruption as a“truly criminal action” and vowed to equate itstreatment to “treason against the nation”.

In order to curb corruptive practices, the gov-ernment set out, first, to dismantle the “web ofcorruption” by breaking down existing eco-nomic and financial structures, and to reorgan-ise the public sector. To this effect, a combina-tion of measures were adopted: • the progressive re-regulation of the economy • the cutting of government spending and sub-

sidies• the lowering of tariffs in order to increase

trade• an aggressive campaign destined to compel a

wide range of tax-payers – from big enter-prises to ordinary citizens – to comply withthe existing tax legislation, thus reducing analarmingly high level of tax evasion. Specificlegislation was passed to this effect, in termsof which the control office Auditoría Fiscalwithin the Revenue Authority (DirecciónGeneral Impositiva) was given ample powersto investigate tax irregularities.

A crucial part of the government’s economicreform was the privatisation programme,designed to sell a large number of almost bank-rupt and grossly bureaucratic state monopolies,among them, the national oil company, railwaylines, telephones, gas, electric power, water andthe national airline. Furthermore, Parliamentenacted in 1991 the so-called “ConvertibilityLaw” which made the national peso freely con-vertible to the US dollar (on a fixed rate of oneto one), thus ending years of exchange controlregulations in Argentina. The law prohibitedthe National Treasury to print money notbacked by hard-currency reserves or gold.Legislation was also passed to truly and uncon-ditionally encourage foreign investment. Atreaty with Argentina’s most important tradepartner, the US (the Treaty on Reciprocal

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Encouragement and Protection of Investmentsbetween Argentina and the US) was of crucialimportance for restoring private sector confi-dence in the future of the country.

It is clear from these few observations thatArgentina embarked on a most comprehensivepolicy to combat economic decline and corrup-tion, and that specific criminal law reformswere just one of the many interdependent mea-sures within this context. Anti-corruption legis-lation, however, played a crucial part.

2.2.1 Legislation against corruptionAs in the case of Germany, the “classic corrup-tion offences” (such as active and passivebribery) are stipulated in Argentina’s CriminalCode (Código Penal de la Nación – chapters 4to 9 bis, arts 248 to 269).

Chapter 8, art 265 provides for the crime ofBusiness Matters or Transactions which areIncompatible with Public Office.

The provision is rather original and deservesbeing quoted:

“Art 265: A public official who, by himselfor through another person, directly or indi-rectly i.e. by an action carried out to concealthe true action (acto simulado), becomesinvolved personally in any dealings (con-tract or any other business transactions)with the government performed in his offi-cial capacity shall be liable to imprisonmentfor a period of two to six years and suspen-sion from public office for a period of threeto ten years. The same applies to any personentrusted with the custody, conservation,administration or partition of propertybelonging to a third party.”

Chapter 9, arts 266 to 268 provides for the spe-cial crimes of extortion and intimidation com-mitted by public officials, as particularly severeincidents of bribery. The provisions read:

“Art 266: Any public official who illegallydemands from any person (for himself orany other person) a reward, contribution orany other financial benefit, or chargesexcessive fees shall be liable to imprison-ment for a period of one to three years andsuspension from public office from one tofive years.Art 267: If the official falsely relies on orinvokes an administrative order or decisionor a judicial order for the purposes of theabove provision, he shall be liable to

imprisonment for up to four years and sus-pension for up to six years.Art 268: If the public official collects themoney or excessive fees for himself or anyother person he shall be liable to imprison-ment for a period of two to six years andsuspension from public office for life.”

Chapter 9bis is dedicated to yet another groupof special offenses of unlawful or illicit enrich-ment of public officials:

“Art 268(1): (Using confidential informa-tion for own benefit) A public official whouses confidential information made knownto him in his official capacity for his per-sonal profit or benefit shall be liable to thepunishment established in art 256.Art 268(2): (Unjustified substantial enrich-ment/increase in financial resources) Apublic official who, after being dulyrequested to do so, does not or cannot justi-fy the source or origin of a substantialincrease in his financial resources (enrique-cimiento patrimonial apreciable) occurredafter entering in public office shall be liableto imprisonment for a period of two to sixyears and suspension from public office forthree to ten years. The evidence presentedby the accused in order to clarify his finan-cial position shall be kept confidential. If athird party (persona interpuesta) is involv-ed, this person shall be liable to imprison-ment for two to four years.”

The first situation contemplated in this section(art 268(1)) does not require the verification ofan economic benefit. Rather, the offense con-sists in using confidential information to whichthe individual has access in his official capaci-ty, with the purpose of obtaining such econom-ic benefit. A public official who, knowing thatthe implementation of import restrictions forcertain products would push up their pricesinternally, monopolises the market; or the offi-cial who buys real estate property in a certainarea knowing of development projects to beimplemented which would increase the marketvalue of the property, constitute clear examplesof actions contemplated in this article.

Art 268(2) was specifically designed to dealwith the problematic aspect of proof in corrup-tion investigations. Corruption in the publicservice is difficult to prove. Bribery, abuse ofauthority, extortion, embezzlement and othercorruptive practices are frequently carried out

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in subtle, sophisticated ways, through simulatedacts and with third parties acting as intermedi-aries. Furthermore, the use of modern computertechnology for criminal purposes has becomeincreasingly common: offenders can enter com-puter networks and create accounts, movemoney or eliminate existing records of financialobligations.

In order to facilitate a criminal investigationon charges of corruption, art 268(2) has invert-ed the onus probandi where a substantialincrease in the financial resources of a publicofficial is suspected. In this case, it is theaccused who must prove to the court that suchincrease originates in lawful activities or cir-cumstances.

For the purpose of more effective implemen-tation of art 268(2) of the Criminal Codedescribed above, the government enactedDecree-Law No. 1639/89. This regulation madeit compulsory for public officials holding cer-tain – mostly senior rankings – in the Adminis-tration to fill in and submit a comprehensivewritten declaration of personal property andassets, which is to be renewed periodically.

A written declaration must be submitted bythe public official concerned within 30 days ofhis appointment or promotion in public office,or upon termination or discontinuance ofduties. It must contain, in extensive detail, thedescription of the following assets, whereversituated, and whether belonging to the appli-cant, his spouse or minor children. The proper-ty and assets included are: any immovableproperty; any registered movable property(bienes muebles registrables) such as motor-cars, vessels, yachts, aeroplane, etc.; other valu-able movable property such as technical equip-ment and the like, jewellery, art objects or orna-ments, livestock for breeding or farming, etc.,when these assets are of substantial value;stock, share or capital investments; any invest-ments in large or small industries, holdings orother commercial ventures; mortgage bonds,bank credits or loans secured by pledge; per-sonal income, any other earnings and deduc-tions; and particulars and means of livelihoodof the closest relatives of the applicant (pari-entes por consanguinidad en línea recta). Theinformation contained in the declaration ofassets is strictly confidential, and shall be keptin the custody of the State Notary Public Office(Escribanía General de Gobierno).

As a general rule, the information submittedin the declaration must be updated every threeyears. However, in the case of a substantialincrease in the financial resources of either theapplicant, his spouse or closest relatives (asspecified in the regulation), by whatever means,a new declaration must be submitted within 30days.

The non-observance of these regulationsentails administrative sanctions and the initia-tion of administrative proceedings to investi-gate the matter fully. The offender is also crim-inally liable for inaccuracies or omissions in theinformation submitted. A preliminary investi-gation is conducted within the sphere of thecompetent administrative department. If unlaw-ful action is suspected, a specific body, theFiscalía de Investigaciones Administrativas –which is the government’s corruption monitor-ing office – may investigate further and initiatecriminal proceedings based on corruptioncharges.

It is clear that Argentina’s reform administra-tion since 1989 succeeded in modernising exist-ing anti-corruption offences, and in introducingsome very innovative, pragmatic and effectivemeasures to control any unexplained growth inpersonal wealth (directly or indirectly) of pub-lic officials and persons holding a senior publicoffice.

2.2.2 ProcedureRegarding procedure, Argentina went furtherthan, for instance, Germany, by establishingspecial Criminal Courts for EconomicOffenses, which are supported by specific divi-sions of the prosecution authorities entrustedwith the investigation of corruption offenses.

The Argentine Federal Code of CriminalProcedure was extensively amended in July1991, in order to give greater importance tooral and public proceedings. However, and inline with the continental heritage of theArgentine legal system, criminal proceedingsare still essentially “inquisitorial” (as opposedto the accusatorial model of the common law),giving the courts a significantly more activerole than in the common law system. As in thecase of Germany, the criminal court has amplepowers to investigate fully the matter, seek evi-dence and control the nature and objective ofthe entire proceedings.

More specifically, a typical investigation is

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opened ex officio (either by the public prosecu-tor or the judicial police), as a result of a reportfiled by the victim or by any member of thepublic who has witnessed the commission of acrime or simply because the relevant circum-stances are otherwise known (arts 174, 195CCP).

The first phase is primarily written and issecret during the first 10 days, except for theparties and counsel. Its objectives are to verifythe commission of the crime, to gather all nec-essary evidence leading to a possible convic-tion, to find out the identity of the perpetratorsand to dictate all necessary measures to appre-hend the accused and render him liable for anycivil claims (damages) arising out of a criminalconduct. While, to this effect, the previousCode instructed the court to order “all neces-sary measures”, the new legislation providesthat the judge may conduct the investigationhimself or may delegate this power on the pros-ecution (art 196 CCP). Whether it is the courtitself or the prosecution who conducts theinvestigation, it must proceed according to therules established by title III of the Code for theproduction of evidence (“Medios de prueba”,arts 216 et seq CCP). Here, the Code contem-plates the declaration of the accused (declar-ación indagatoria) and the reception of evi-dence, in the form of, among others, testimonialevidence, criminal confession, documentaryevidence, presumptions and circumstantial evi-dence. In general, the court is given amplepowers to investigate the matter fully.

The instruction or investigative period of thecase is concluded when the conclusions submit-ted to the competent court will satisfy the judgeor judges that there is sufficient evidence torule on either transferring the case to the nextstage (oral proceedings, trial) or to declare aprovisional or definitive dismissal (arts 334,346 CCP).

Generally, the function of the trial period(plenario) is to present the case to the trialcourt and to allow the prosecution and thedefend-ant’s counsel to argue their cases. Thecourt must submit the written record of the firststage (instrucción) for consideration and revi-sion by the state prosecutor, who must decidewhether to prosecute and file a formal accusa-tion. If not, the case is dismissed (arts 346 etseq CCP).

Once the indictment has been received, the

court notifies the accused and the prosecutorand fixes a period of 10 days for the parties toexamine the records and offer additional evi-dence such as oral testimony (prueba de testi-gos) and expert witnesses (prueba pericial; arts354, 355 CCP). This opens the trial stage of thecase which comprises three aspects: • the pre-trial measures (actos preliminares)

i.e. examining of records and proof-offering• the debate, which is oral, public, contradicto-

ry and continuous • the sentence or decision (arts 396 et seq

CCP). Trial court decisions may be reviewed by theCourt of Appeals or the Court of Cassation (arts432 et seq) and, in certain circumstances, by theSupreme Court as the court of last resort.

3. THE UK PUBLIC INTEREST DISCLOSURE ACTThe United Kingdom’s (UK’s) Public InterestDisclosure Act (PIDA) 1998 came into effecton 2 July 1999. This Act gives legal protectionto workers who disclose or report malpracticeor wrongdoing by their employers or other thirdparties against dismissal or victimisation.

As summarised by the organisation PublicConcern at Work (see: http://www.pcaw.demon.co.uk/main.html) the Act: • applies to every factory, hospital, Whitehall

department, charity, office, shop and quangoin the UK

• covers workers who raise genuine concernsabout the mistreatment of patients, financialmalpractice, miscarriage of justice, breach ofthe civil service code, abuse in care, dangersto health and safety, risks to the environment,and cover-ups

• protects public interest whistleblowing toregulators, the media and MPs

• guarantees full compensation with thepromise of penalty awards if the whistle-blower is sacked.

The measure – which was supported by govern-ment, opposition and business – is a response torecent disasters and scandals in the UK, such asBristol Royal Infirmary heart operations, NorthWales child abuse, Matrix Churchill, Maxwell,Clapham Rail and Zebrugge. Time and againthe official enquiries revealed that workers hadbeen aware of the real dangers but had been tooscared to sound the alarm.

The Act promotes accountability in the pub-lic, private and voluntary sectors by encourag-

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ing people not to turn a blind eye to malpracticein the workplace and through its strong sanc-tions which will help ensure that organisations: • address the message rather than the messen-

ger • resist the temptation to cover up serious mal-

practice. It does this by promoting public interest as itprotects whistleblowers from dismissal and vic-timisation in the following circumstances:

3.1 MalpracticeThe law applies to people at work raising gen-uine concerns about crime, illegality, (includingnegligence, breach of contract, breach ofadministrative law), miscarriage of justice, dan-ger to health and safety or the environment andthe cover up of any of these. It applies whetheror not the information is confidential andwhether the malpractice is occurring in the UKor overseas.

3.2 Individuals coveredIn addition to employees, it covers trainees,agency staff, contractors, homeworkers andeveryone involved in the National HealthService (NHS).

The usual employment law restrictions onminimum qualifying period and age do notapply to this Bill. It does not cover the genuine-ly self-employed, volunteers, the intelligenceservices, the army or the police. (Note: Thegovernment has undertaken to give the policeequivalent protection.)

3.3 Internal disclosuresA disclosure to a manager or the employer willbe protected if the whistleblower has an honestand reasonable suspicion that the malpracticehas occurred, is occurring or is likely to occur.Where a third party is responsible for the mal-practice, this same test applies to disclosuresmade to him. It also applies where someone inthe NHS or a public body blows the whistle tothe sponsoring department.

3.4 Regulatory disclosuresThe Act makes a special provision for disclo-sures to prescribed bodies. These are likely tobe regulators such as the Health and SafetyExecutive and the Financial Services Authority.Such disclosures will be protected where thewhistleblower meets the tests for internal dis-

closures and, additionally, honestly and reason-ably believes that the information and any alle-gation in it are substantially true.

3.5 Wider disclosuresWider disclosures (e.g. to the police, the media,and non-prescribed regulators) are protected if,in addition to the tests for regulatory disclo-sures, they are reasonable in all the circum-stances and they are not made for personalgain.

There are two parts to this reasonablenesstest. First, unless the whistleblower reasonablybelieved he/she would be victimised, the con-cern must have been raised with the employeror a prescribed regulator. This requirementdoes not apply if the matter is exceptionallyserious. Nor does it apply where there is no pre-scribed regulator and the whistleblower reason-ably believed there would be a cover-up.

If these provisions are met and the tribunal issatisfied that the disclosure was reasonable, thewhistleblower will be protected. In deciding thereasonableness of the disclosure the tribunalwill consider the identity of the person it wasmade to, the seriousness of the concern,whether the risk or danger remains, andwhether it breached a duty of confidence theemployer owed a third party. Where the con-cern has been raised with the employer or aprescribed regulator, the tribunal will also con-sider the reasonableness of their response.

3.6 Full protectionWhere the whistleblower is victimised or dis-missed in breach of the Act he/she can bring aclaim to an employment tribunal for compensa-tion. It is expected that awards will be uncapp-ed and based on the losses he/she suffers.Where a whistleblower is sacked, he/she mayapply for an interim order keeping his/her job.

3.7 Gagging clausesGagging clauses in employment contracts andseverance agreements are void insofar as theyconflict with the Act’s protection.

3.8 Secrecy offencesWhere the information is also covered by theOfficial Secrets Act or another secrecy offence,the whistleblower will lose the protection of thePIDA if a jury has found him/her guilty or if atribunal is satisfied – effectively beyond rea-

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sonable doubt – that he/she committed anoffence. 4. THE US’s FOREIGN CORRUPT PRACTICES ACT(1977) AND THE OECD CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS (1997)When the American Foreign Corrupt PracticesAct (FCPA) became law over 20 years ago itsprovisions were so broad that initially some500 companies admitted violations as part of anamnesty programme. As a result, and fearingconstitutional challenges, the law was largelyignored by regulators and was simply no longerenforced. It was finally amended in 1988 andhas since then become the main precursor of avery similar new international anti-corruptiondrive at the level of the Organisation for Econo-mic Cooperation and Development (OECD).

Since the mid-1990s, the FCPA is beingenforced again in the US, probably in responseto increased public outcries and InternationalMonetary Fund (IMF) and World Bank criti-cism levelled against large-scale corruptionscandals involving American multinational cor-porations and affecting development andhuman rights on an unprecedented scale. In1995, Lockheed paid a nearly $25 million finefor improper payments relating to contracts inEgypt and, for the first time, a businessman wassentenced to jail for violating the Act. InFebruary 1997, the Securities and ExchangeCommission (SEC) pursued its first FCPAcharges in 11 years by enjoining Triton EnergyCorporation and fining it $50 000 for paymentsin Indonesia. However, other corporations, suchas Enron have remained “untouchable”, despitetheir well documented corrupt dealings inIndia’s Maharashtra state (in an extensive 1999report by Africa Watch).

The essential provisions of the FCPA prohib-it any US corporation or person in the employ-ment of such corporation from making pay-ments, directly or indirectly, to foreign govern-ment officials in order to obtain or retain busi-ness. Companies, officers and directors riskexpensive and disruptive investigations, crimi-nal and civil sanctions, and private lawsuits ifthey fail to take the steps necessary to avoidprohibited payments. The US Department ofJustice (DOJ) can bring criminal charges andthe SEC has the authority to impose fines andinjunctions.

Criticism against the Act argues that it pun-ishes some conduct that is hard to distinguishfrom ordinary and legal business transactions.Moreover, what the Act considers illegal forUS companies is often legal, or even taxdeductible, if done by foreign companies. Tothe contrary, US companies and their officialshave become criminally liable in the US fortheir conduct anywhere in the world, accordingto US standards. It is not sufficient for them tojust obey local laws and to follow local custom.The consequences can be severe, and those whofail to act in accordance with the FCPA riskdenunciation in the US by competitors or dis-gruntled own employees.

Understandably, FCPA enforcement has beenmade conditional by the Clinton Administrationupon similar legislation being adopted andenforced by America’s main competitors, themajor European powers and Brazil, which iswhat the OECD Convention on CombatingBribery of Foreign Public Officials in Interna-tional Business Transactions of 1997 is about.Moreover, the original FCPA provisions havebeen considerably “softened” by subsequentamendments of the Act. The FCPA today con-tains two exemptions that make it relativelyeasy for US companies and their officials toavoid prosecution. First, the requirement thatthe bribing official had to have had “reason toknow” that he was bribing a foreign governmentofficial was tightened and now reads that thebribing official must have had “actual knowl-edge” – a requirement that is far more difficultto prove for a prosecuting authority in the US.Second, the exemption of “facilitating pay-ments” (which do not constitute a prohibitedpayment) was considerably widened and nowincludes any payments made to obtain “routine-ly governmental action”, where such action isinterpreted to mean “ordinarily and commonlyperformed actions which do not include govern-mental approvals involving the exercise of dis-cretion by a governmental official” (see B CGeorge, K A Lacey & J Birmele, “On thethreshold of the adoption of global antibriberylegislation” in: 32 (1999) No 1 VanderbiltJournal of Transnational Law, 1-48 at 9).

Measures to curb bribery and corruption havenevertheless been placed firmly on the interna-tional agenda. All 29 OECD countries(Australia, Austria, Belgium, Canada, CzechRepublic, Denmark, Finland, France, Germany,

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Greece, Hungary, Iceland, Ireland, Italy, Japan,Korea, Luxembourg, Mexico, the Netherlands,New Zealand, Norway, Poland, Portugal,Spain, Sweden, Switzerland, Turkey, theUnited Kingdom and the United States) as wellas five non-OECD countries (Argentina, Brazil,Bulgaria, Chile and Slovak Republic) havesigned the OECD Convention on CombatingBribery in International Business Transactionsand are now implementing tough new legisla-tion against transnational bribery.

The Convention represents an important stepin the concerted international effort to crimi-nalise bribery and reduce the rampant corrup-tion in world economies. It aims to stop theflow of bribe money for the purpose of obtain-ing international business deals and to strength-en domestic anti-corruption efforts aimed atraising standards of governance and increasingcivil society participation.

The OECD first put international corruptionon its agenda in 1989 and later evolved twobasic objectives for its work: to fight corruptionin international business; and to help level thecompetitive playing field for all companies.After several years spent analysing the nature ofcorruption in international business and study-ing the measures that countries might take tocombat it, OECD countries agreed in 1994 onan initial Recommendation on Bribery in Inter-national Business Transactions. Subsequently,in May 1996, they adopted a Recommendationon the Tax Deductibility of Bribes to ForeignPublic Officials. In May 1997, a revisedRecommendation on Combating Bribery inInternational Business Transactions was adopt-ed.

Based on the recommendations, but alsoupon on discussions under way since 1995,OECD countries and several non-members,negotiated the 1997 Convention on CombatingBribery of Foreign Public Officials in Interna-tional Business Transactions. The Convention,which came into force on 15 February 1999, isopen to accession by non-OECD membersstates. As mentioned above, the non-membersignatories are Argentina, Brazil, Bulgaria,Chile and the Slovak Republic, and all 29OECD member countries have signed it.

The Convention targets the offering side ofthe bribery transaction. It is essentially an effortto eliminate the “supply” of bribes to foreignofficials, with each country taking responsibili-

ty for the activities of its companies and whathappens on its own territory. The Conventionprovides a broad, clear definition of bribery,requires countries to impose dissuasive sanc-tions, and provides for mutual legal assistance.It also encourages coordination between coun-tries through regular working contact in theOECD Working Group on Bribery and calls onsignatories to carry out a programme of follow-up to monitor and fully implement theConvention.

The aims of the Convention are reinforced bythree OECD recommendations. The 1997Revised Recommendation on CombatingBribery in International Business Transactionssets out measures which countries should takein the fields of accounting, public procurement,and criminalising bribes to foreign public offi-cials.

These measures require companies to main-tain adequate accounting records, adopt internalcompany controls, and undergo external audits.In the area of public procurement, it is recom-mended that companies found guilty of bribingforeign officials be suspended from future pub-lic contract bids. Further, countries shouldcooperate in investigations and other legal pro-ceedings in order to prosecute efficiently casesin which foreign public officials have beenbribed.

The Revised Recommendation also urgesprompt implementation of the 1996Recommendation on Tax Deductibility ofBribes to Foreign Officials which calls oncountries to disallow the deductibility of bribesto foreign public officials. The OECD FiscalCommittee surveys compliance with this instru-ment and recently reported that by the end of1999, there should be no OECD country leftthat allows such tax deductibility.

The 1997 Revised Recommendation onCombating Bribery in International BusinessTransactions also incorporates the proposals ofthe Recommendation to Combat Corruption inAid-Funded Procurement which calls on coun-tries to require anti-corruption provisions inbilateral aid-funded procurement.

Finally, the aims of the Convention are rein-forced by the 1998 Recommendation on Im-proving Ethical Conduct in the Public Service,which calls on countries to take action to ensurewell-functioning institutions and systems forpromoting ethical conduct in the public service,

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and the work of the Financial Action TaskForce on Money Laundering which is an inter-governmental body whose purpose is the devel-opment and promotion of policies to combatmoney laundering.

Detailed information on the status of nationalimplementation of the convention is given inAnnex V below.

CONCLUSIONIt is not an easy task to suggest firm conclu-sions on the basis of a very brief exposition ofthis nature, on a matter as complex as the pre-sent one.

The first observation which comes to mind isthat the comparison between Germany andArgentina shows that under relatively stableand even ideal circumstances, it is perfectlysufficient to rely on the criminalisation of theclassic offensives of active and passive bribery,and to ensure that the prosecution and thecourts are adequately equipped, both in termsof their powers and their actual expertise, todeal with modern crimes of corruption. Theprinciples of inquisitorial criminal procedureoffer obvious advantages in this regard.Incentives to report corruption crimes, includ-ing rewards and state witness privileges arealways effective in respect of crimes whichinvolve greed and more than one perpetrator, asmost commonly the greed of at least one of theperpetrators will cause him to feel disadvan-taged and revengeful. The remarkable success-es of the South African Diamond Branch inpast decades could serve as a model in thisrespect.

The second obvious conclusion is that theexample of Argentina demonstrates how anescalation of crimes of corruption will call forthe enactment of additional and more specificcriminal offenses and procedures. Most remark-able is the recent introduction in Argentina ofspecial auditing procedures at regular intervalsfor the personal finances of public officials.

It must also be borne in mind, however, thatthe success of the Argentine recovery frommaladministration and widespread corruptioncan only be ascribed to a very limited degree tothe legislative measures introduced. The turn-ing around of the nation was achieved mainlyby a concerted economic reform programmewhich reduced substantially the actual opportu-nities for corrupt practices, by actually disman-

tling and breaking down the old and establishedpolitical, economic and personal networks ofinfluence, dependence and control.

Monopolies, whether public or private, andwhether political or economic, are the singlegreatest cause of corruption. Officials operatingwithin a de facto monopoly do not have to fearthe scrutiny of competitors. Where a heavilycentralised and monopolistic economy coin-cides with an equally monopolistic politicalsystem, the country will also lack a sufficientlyindependent and influential public opinion.Where politics are perfectly shielded from pub-lic opinion, one will find that officials are atliberty to misuse their authority for financial orpolitical gain. And where single business enter-prises can dominate their markets, or stateowned conglomerates remain unaccountable tothe public, one will find that very little manage-rial discipline and personal honesty will exist.

If such circumstances are coupled with per-sistent recession, a complete loss of the confi-dence of international business in the country,depreciation rates of the national currency inexcess of the inflation rate, unemployment ofup to 50%, impoverishment of the middle class-es and public servants, widespread insecurityand fear, than there is very little hope that leg-islative measures alone could have an impacton corruption.

A tradition of political domination by oneparticular political elite will normally also con-tribute to a lack of transparency and account-ability and thereby corrupt the very ideal of therule of law. This will normally provokeincreased arbitrariness of the administrationand political domination of the economy.Ultimately, such a trend leads to the destructionof the civic sense of the average citizen, andwill dry up statesmanship at its source, whichare the people.

Where too many citizens remain without aneffective voice for too long, and have no say intheir own future, and no means to express theirconcerns, violence by active minorities andpassive resistance by the masses are theinevitable result.

It is perfectly normal that under such circum-stances the most enterprising and innovativeforces in a country lose their interest in publicaffairs and in the government, and rather spendtheir energies in the pursuit of gain at any cost,or private amusements, or power games with-

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out a common goal or purpose. Under such circumstance, economic recovery

alone cannot restore civic sense and honesty.Improved living conditions as such will not sat-isfy the need for participation in the affairs ofthe community and the nation.

Only an open society, based on free econom-ic and democratic political competition will becapable of overcoming despondency, of restor-ing the faith and civic sense of officials andmanagers alike.

Both the examples of Germany andArgentine have shown that the moral healthi-ness of a society is the first condition for thesuccessful implementation of the laws destinedto deter from and punish corrupt practices. Bothexamples also show that the second condition isa generally unbiased and fair conduct of theadministration, and a non-selective general lawenforcement in respect of all laws includingeven traffic and public order laws – but espe-cially taxation laws – provided a good measure

of fairness and realism has been restored inthose same laws.

Finally, the UK example on “whistleblow-ing” legislation illustrates how a careful combi-nation of procedural measures and enactmentsof legal principles can curb a mentality of cor-ruption and public despondency in regard there-to, while avoiding unnecessary criminalisation.In contrast, the recent South African “OpenDemocracy Bill”, although purporting toachieve similar goals, is an essentially misdi-rected piece of legislation that will protect fur-ther and increase official secrecy under theguise of wishing to combat corruption and mal-administration.

Regarding international developments, theOECD convention is the most important (ofseveral other, unmentioned) modern develop-ments. The OECD convention is open to signa-ture by non-OECD member states, thus allow-ing any country to accede and thereby make aclear and visible statement of its willingness to

(Translations quoted from: JJ Darby, The PenalCode of the Federal Republic of Germany,Littleton/Coll.:London, 1987, p 239).

“Section 331(1) Any government employee or personspecially obligated for a public functionwho demands, permits to be promised tohim or accepts any benefit as the price forhis past or future performance of an officialact shall be punished by up to two years’imprisonment or by fine.(2) A judge or arbitrator who demands, per-mits to be promised to him or accepts any

benefit as the price for his past or futureperformance of a judicial act shall be pun-ished by up to three years’ imprisonment orby fine. The judge is punishable.(3) Conduct falling under subparagraph (1)shall not be punishable if the offender per-mits to be promised to him, or accepts, abenefit which he has not demanded, and thecompetent authorities have, within thescope of their authority, either previouslyapproved the acceptance or, after the bene-ficiary has promptly reported it to them,subsequently granted approval for theacceptance.”

ANNEX I: GERMAN LEGISLATION NOT QUOTED IN TEXT

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ExplanationThe taking of a bribe is the basic form of acrime in office (Jescheck, in: StrafgesetzbuchLeipziger Kommentar, 10th ed, vol 4, 1988,introduction to s 331, no 1). The offender mustbe either a holder of an office (paragraph 1) orsomeone who serves as a public servant, or ajudge or an arbitrator (paragraph 2). The pun-ishable act can be the demand, or the permis-sion to be promised, or the acceptance of anybenefit. The demand can be brought forwardeither in a direct or in an indirect form, as longas the offender makes clear that the benefitwhich he offers to the official shall be the pricefor a past or future performance of any officialact (criminal case law of the Supreme Court ofthe German Reich RGSt 77, 76). It is, however,not necessary that the official gives his assentto the benefit that was offered to him (LeipzigerKommentar, supra, s 331, no 4).

The official’s permission to be promised anybenefit to him means that he accepts the offermade to him as consideration for the official actwhich he has to perform. It is possible for theoffer and the acceptance to be made explicitlyor tacitly or by implied conduct (RGSt 39, 177).The acceptance of the benefit means the actualacceptance of the benefit, and the official mustaccept such benefit for himself. It is not suffi-cient if he accepts it on behalf of a colleague(criminal case law of the Federal High Court –BGHSt 14, 123, at 127).

Benefit in terms of s 331 can be defined asany financial benefit irrespective of the amountof money that is involved. Even the acceptanceof items of small value qualifies as an accep-tance of a financial benefit, except in thosecases where such items are normally exchangedas a matter of courtesy and not as a kind of ben-efit in terms of s 331 of the Code (Dreher/Tröndle, Strafgesetzbuch, 44th ed. 1988, s 331,no 11).

It is necessary that the government employeeor any other official person performs an officialact which forms part of his duties as an official.If the official performs an act which does notfall within the range of his duties of an official,such act has to be classified as a private act(Letzgus, Der Begriff der Diensthandlung,NStZ 1987, 309-311, at 310). The important cri-terion for an official act is that the act alreadyperformed in the past or to be performed infuture does refer to the official’s duties. If the

official performs an act which does not refer tohis function as a public official, even if such actis performed in the official’s office and duringhis official working hours and by utilising theoffice’s facilities, it has to be classified as a pri-vate act which cannot be penalised in terms of s331 of the Code (Kuhlen, supra, p 438 et seq).

It is irrelevant whether the offender has actu-ally performed the official act or whether hejust intends doing so. Simply, the agreementbetween the official and another person to takea bribe as the price for his past or future perfor-mance of an official act and thus the creation ofthe impression by the official that he is corrupt-ible is sufficient to constitute an offence interms of s 331 of the Code (Kuhlen, supra, at435; Leipziger Kommentar, supra, s 331, no14).

S 331 paragraph (3) of the Code makes spe-cial provision for an approval of the acceptanceof a benefit by the competent authorities. Suchapproval prevents the punishability of theacceptance of a benefit as the price for the per-formance of an official act. If the benefit to bepromised or accepted is, however, only a smalltoken as a form of special appreciation, thenthere is no room for an approval since such“benefits” do not correlate with the perfor-mance of any official acts (Leipziger Kommen-tar, supra, s 331, no 13, 15; Lackner, Strafge-setzbuch, 16th ed. 1985, s 331, no 6a));Schönke/Schröder, supra, s 331, no 48). Onecan think of the following examples: theChristmas present for the postman or the dust-man, the New Year’s present for the trafficpoliceman, the farewell present for the head ofa diplomatic mission. Such gestures are regard-ed as common usage and as such more or lessharmless and not affecting the public interest(Dreher/Tröndle, supra, s 331, no 22, with fur-ther ref. to criminal case law).

The approval in terms of s 331 (3) of theCode is regarded as a legal justification (BGHSt31, 264, at 285).

The taking of a bribe by a judge or an arbitra-tor in terms of paragraph (2) of s 331 of theCode is an aggravated form of crime comparedto the crime stated in paragraph (1). Theoffender has to be either a judge – whichincludes also honorary judges according to s 11(1) 3. of the Code (“ ‘judge’ ... according toGerman law is a professional or honoraryjudge”) – or an arbitrator.

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The compensation to an arbitrator shall bedeemed to be a benefit within the meaning of s331 of the Code only if the arbitrator demands,permits to be promised to him or accepts itfrom one party behind the back of the other, orif it is offered, promised or furnished to him byone party behind the back of the other, s 335aof the Code. That means that the regular com-pensation to an arbitrator is no benefit in termsof s 331 of the Code since the arbitrator is enti-tled to receive compensation according to ss612, 614 of the German Civil Code (LeipzigerKommentar, supra, s 335a no 2, s 331 no 7).Only compensation that is offered or promisedto the arbitrator from one party behind the backand without the knowledge of the other, on topof the compensation to which he is entitled,must be regarded as a benefit in terms of s 331(2) of the Code (Schönke/Schröder, supra, s335a, no 2,3).

The attempt of the offence of s 331 is punish-able only for the aggravated form of the offencein terms of paragraph 2. A judge or arbitratorwho demands any benefit commits an attemptedoffence once he tries to get into contact with theother person (Leipziger Kommentar, supra, s331, no 26). If he tries to contact the other per-son in writing, the letter must at least havereached the addressee before the attempt is com-pleted (Schönke/Schröder, op cit, s 331, no 35).

The joint offender must also be a governmentemployee or a person specially obligated for apublic function, and he must keep the benefitpartially for himself. In addition, the perfor-mance of the particular duty must at least formpart of his own duties (BGHSt 14, 123), other-wise he will only qualify as a participant butnot as a joint offender.

“Section 332(1) Any government employee or personspecially obligated for a public functionwho demands, permits to be promised tohim or accepts any benefit as the price forhis past or future performance of an officialact and who thereby violates or would vio-late the duties of his office shall be pun-ished by imprisonment from six months tofive years and, in less serious cases, by upto three years’ imprisonment or by fine. Theattempt is punishable.(2) A judge or arbitrator who demands, per-mits to be promised to him or accepts any

benefit as the price for his past or futureperformance of a judicial act and who there-by violates or would violate his judicialduties shall be punished by imprisonmentfrom one to ten years and, in less seriouscases, by imprisonment from six months tofive years.(3) If the offender demands, permits to bepromised to him or accepts a benefit as theprice for the future performance of an act, itshall be sufficient for the application of sub-paragraphs (1) and (2) if, in dealing with theother party, he indicated his willingness to:

1. violate his duties in performing the act;or2. to the extent that he has discretion inperforming the act, to permit the benefitto influence him in exercising his discre-tion.”

ExplanationThe criminal offence of corruptibility, i.e. theacceptance of a benefit as the price for the per-formance of an official act and thereby violat-ing the duties of office are aggravated forms ofthe passive bribery offence of s 331 (1) and (2)of the Code. The aggravation is the violation ofthe official’s office duties.

The objective elements of this offence are thesame as for the offence of simple passivebribery, s 331 of the Code, except that the per-formance of the official act must at the sametime violate the duties of the official’s office. Ifit cannot be established whether the act whichthe official had performed in the past did in factviolate the duties of his office, then the princi-ple of in dubio pro reo applies with the effectthat the offender can only be punished for sim-ple passive bribery in terms of s 331 of theCode (Leipziger Kommentar, supra, s 332, no4). If, however, the agreement on the promiseor the acceptance of a benefit relates to thefuture performance of an act, the provision ofparagraph (3) applies. It shall then be sufficientif the offender, in dealing with the other party,indicated his willingness to violate the officeduties by performing the official act. The men-tal reservation of the offender to eventually notviolate his duties in performing the act does notexonerate him (Schönke/Schröder, supra, s332, no 15 et seq, with further references).

The offender must violate the duties of hisoffice. That means that he must act in contra-

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vention of public statutes, statutory rules andorders, administrative regulations, general staffregulations or special directions (LeipzigerKommentar, supra, s 332, no 5). The violationof judicial duties means the violation of the cur-rent law by applying legal provisions incorrect-ly, or by applying invalid provisions or by notapplying legally valid provisions (op cit).

As regards the violation of the duties of theoffice, one has to differentiate between the con-travention against written statutes, rules, oblig-ations or regulations on the one hand and theviolation of duties as far as discretionary deci-sions are concerned. In the latter case the offi-cial acts contrary to his duties if he takes animproper or incorrect decision (LeipzigerKommentar, supra, s 332, no 7).

The offender must be aware of his wrongdo-ing, i.e. he must be aware of the fact that theperformance or non-performance of his actmeans a violation of his office duties. If helacks such awareness, he only commits theoffence of simple passive bribery, s 331 (RGSt56, 403; BGHSt 3, 143).

Only judges and arbitrators can be punishedfor an attempted offence, s 331 (2).

As far as complicity is concerned, the sameconditions as for s 331 apply (BGHSt 14, 123).

“Section 333(1) Whoever offers, promises or furnishesany benefit to a government employee, per-son specially obligated for a public func-tion, or member of the armed forces of theFederal Republic of Germany as paymentfor his future performance of an official dis-cretionary act, shall be punished by up totwo years’ imprisonment or by fine.(2) Whoever offers, promises or furnishesany benefit to a judge or arbitrator as a pay-ment for the future performance of a judi-cial act shall be punished by up to threeyears’ imprisonment or by fine.(3) Conduct falling under subparagraph (1)shall not be punishable if the competentauthorities, within the scope of their author-ity, have either previously approved theacceptance of the benefit by the recipient orsubsequently granted approval after therecipient promptly reported it to them.”

ExplanationThis section was inserted into the Code as a

result of the law reform of 1975. Its provisionsare similar to those of s 331 of the Code, exceptthat s 333 refers to the offence of active briberyand punishes the person who offers, promisesor furnishes any benefit to a governmentemployee as payment for the performance of anofficial act, whereas s 331 punishes the personwho demands, permits to be promised oraccepts any benefit as the price for his perfor-mance of an official act.

In terms of paragraph (1) anybody can be anoffender, even another government employeeor official. The person to be bribed must beeither a government employee, or a person spe-cially obligated for a public function, or amember of the armed forces of the FederalRepublic of Germany.

The offering of the profit corresponds withthe demanding in s 331 of the Code, and thepromising corresponds with the permission tobe promised in s 331 (BGHSt 15, 88). To fur-nish a benefit means to actually grant the bene-fit to the recipient, and thus is comparable tothe acceptance of a benefit in terms of s 331 ofthe Code (Leipziger Kommentar, supra, s 333,no 4). It is not necessary that these three decla-rations are made explicitly, it is sufficient ifthey are expressed through implied conduct(RGSt 26, 424; 47, 68). It is irrelevant whetherthe perpetrator finally succeeds in the sense thatthe official performs an official act, as long asthe perpetrator was determined to offer,promise or furnish any benefit to the govern-ment employee or had already started to bribehim (BGH NJW 1955, 529).

It is not necessary that the offender has directcontact with the official. He can use an inter-mediary who then actually offers, promises orfurnishes the benefit to the governmentemployee. The offender does not have to knowthe identity of the official (Dreher/Tröndle,supra, s 333, no 4).

The definitions of the terms “benefit” and“price” have the same meaning as for s 331 ofthe Code (see above).

The bribe must be offered for the future per-formance of an official discretionary act. Dis-cretionary act means that the official must havea choice between several alternatives when hetakes his decision (Lackner, supra, s 333, no3b)).

According to paragraph (3) the acceptance ofa benefit in terms of paragraph (1) shall not be

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punishable if the competent authorities haveeither previously approved the acceptance ofthe benefit by the recipient or subsequentlygranted approval after the recipient promptlyreported it to them. However, this provision hashardly any practical implication as it is regard-ed as highly unlikely that the authorities willapprove the acceptance of a benefit as a pay-ment for the future performance of official dis-cretionary acts (Leipziger Kommentar, supra, s333, no 8; Schönke/Schröder, supra, s 333, no20). If the offender furnished the benefit to theofficial subject to the approval of its acceptanceby the competent authorities and if he takes thatbenefit back in case of the disapproval by theauthorities, he shall not be punishable (Leip-ziger Kommentar, op cit.). If the offender fur-nished the benefit unconditionally because itwas impossible or unreasonable to obtain theprevious approval of its acceptance, his conductshall not be punishable if the acceptance of thebenefit was in general approvable and theoffender was under the impression that therecipient would try to obtain such approval assoon as possible, irrespective of whether theapproval was granted in the end (Schönke/Schröder, supra, s 333, no 22).

The offender must act wilfully and knowing-ly, and at least with contingent intent (RGSt 23,376; 77, 78).

“Section 334(1) Whoever offers, promises or furnishesany benefit to a government employee, per-son specially obligated for a public func-tion, or member of the armed forces of theFederal Republic of Germany as paymentfor his past or future performance of an offi-cial act, whereby he violated or would vio-late the duties of his office, shall be pun-ished by imprisonment from three monthsto five years and, in less serious cases, byup to two years’ imprisonment or by fine.(2) Whoever offers, promises or furnishesany benefit to a judge or arbitrator as pay-ment for a judicial act:

1. already performed and which violatedhis judicial duties; or2. to be performed in the future andwhich would violate his judicial dutiesshall, in cases falling under number one,be punished by imprisonment from threemonths to five years, and in cases falling

under number two, by imprisonment fromsix months to five years. The attempt ispunishable.

(3) If the offender offers, promises or fur-nishes the benefit as payment for the futureperformance of an act, it shall be sufficientfor the application of subparagraphs (1) and(2) if he attempts to induce the other partyto:

1. violate his duties in performing the act;or2. to the extent that he has discretion inperforming the act, to permit the benefitto influence him in exercising this discre-tion.”

ExplanationS 334 of the Code is the active form of theoffence which is laid down in s 332.

Under this crime anybody can be an offender.The group of people who are the recipients isthe same as under s 333 of the Code (see afore-going section).

The criminal act differs from that of s 333insofar as the act of bribery can relate a past orfuture performance of official and judicial actswhich had violated in the past or would violatein future the duties of the official.

If the benefit relates to a past or simultaneousperformance of an official or judicial act, theviolation of duties must be determined. If theoffender thought erroneously that he would vio-late his duties of office, he is punishable for theattempt which carries a penalty only for thecases of offering a bribe to judges or arbitrators(paragraph 2).

Paragraph (3) is applicable to the future per-formance of an official or judicial act and isthus comparable to paragraph (3) of s 332 ofthe Code.

The offender is punishable in terms of s 334(1) and (2) of the Code if he offers, promises orfurnishes a benefit to an official in an attemptto induce – either explicitly or through impliedconduct – the other party to either violate hisduties in performing a particular official act or,where the official has discretion in performingthe act to permit the benefit to influence theofficial in exercising this discretion. Thus theprovision of s 334 which was also inserted intothe Code as a result of the law reform of 1975confirms the former criminal case law(Leipziger Kommentar, s 334, no 6 with refer-

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ences to the case law). It is not necessary thatthe official at the end performs the official orjudicial act, or that such performance would bein violation of the office duties, or that the offi-cial understood and was aware of the meaningof the offering, promising or furnishing of thebenefit (Leipziger Kommentar, op cit.).

Again the offender must act wilfully andknowingly, but contingent intent is sufficientDreher/Tröndle, supra, s 334, no 7, with furtherreferences to case law).

“Section 335Failing to perform one’s official or judicialduties shall be deemed equivalent to the

performance of them within the meaning ofs 331 to 334.”

ExplanationThis legal provision clarifies the position bystating that a government employee or anyother official mentioned in ss 331-334 of theCode can be offered any benefit as payment notonly for the performance of an official or judi-cial act but also for failing to perform his offi-cial or judicial duties in terms of ss 331-334.This principle which in the past had been estab-lished case law (RGSt 42, 385; BGHSt 9, 245)was codified and inserted into the Code by thecriminal law reform of 1975.

(Translations by S Viejobueno, Abogada,Institute of Foreign and Comparative Law,Unisa).

Art 248: Any public official who dictates reso-lutions or gives orders contrary to theConstitution or the existing national or provin-cial legislation, carries out such resolutions ororders or fails to perform his duty in enforcingthe law shall be punished with imprisonmentfrom two months to two years and limited sus-pension or disqualification from public office(inhabilitación especial).

Art 249: Any public official who illegallyomits, refuses or delays to perform an act with-in his official duties shall be fined and suspend-ed from public office for a period of one monthto one year.

Art 250: A civil guard or civil defense officer(commissioned to keep public order) whorefuses, delays or omits, without legal justifica-tion, to assist a civil authority requesting his aidshall be liable to imprisonment for a term ofone month to two years and limited suspensionfrom public office.

Art 251: A public official who, in his capacityas such, requests the assistance of the lawenforcement forces to elude the execution of aduly authorised order of an administrative orjudicial authority shall be liable to imprison-ment from one month to four years and suspen-sion from public office for a limited period.

Art 252: A public official who relinquishes hisoffice prior to his resignation being acceptedshall be fined and suspended for a limited peri-od, if the Administration (public service) hassuffered any damage or loss as a consequencethereof.

Art 253: Any public official who appoints topublic office a person who does not complywith the necessary legal requirements shall befined and suspended from public office for aperiod of six months to two years. The sameapplies to the person having accepted theappointment.

Art 254: Any person who destroys or damagesa public seal affixed by the administrativeauthority which is intended to preserve or iden-tify property shall be liable to imprisonment

ANNEX II: ARGENTINE LEGISLATION NOT QUOTED IN TEXT

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from six months to one year. If the accused is apublic official acting wilfully he shall also besuspended from public office for a limited peri-od.

Art 255: Any person who wilfully retains,destroys, damages or in any way conceals anyobject or piece of evidence, records or officialdocuments which are entrusted to a public offi-cial or any other person in terms of an adminis-trative order duly authorised shall be liable forimprisonment for a period of one month to fouryears. If the property had been entrusted to theaccused, he shall be suspended from publicoffice for a limited period.

Art 256: (Simple passive bribery) A publicofficial who directly or indirectly receives,accepts or permits to be promised to him(directly or indirectly) money or any othervaluable asset or benefit in respect of anythingto be done or omitted to be done by him in hisofficial capacity, or to use his authority to influ-ence another public official to do or refrainfrom doing something in his official capacityshall be punished with imprisonment for a peri-od of six months to six years and suspensionfrom public office from three to ten years.

Art 257: A judge who accepts or permits to bepromised to him money or any other benefit topronounce judgment, to delay or omit sentenceor any other resolution in a case under his juris-diction shall be liable to imprisonment fromfour to twelve years and suspension from pub-lic office for life (inhabilitación absoluta y per-petua).

Art 258: (Active bribery; offering of a bribe)Any person who offers or gives directly or indi-rectly money or any other valuable asset orbenefit to a public official pursuant to art 256above shall be liable to imprisonment from twomonths to six years. The Code aggravates thepunishment if the recipient of the bribery is ajudge (two to six years’ imprisonment).

Art 259: Any official who receives or acceptsgifts, donations, contributions or any other ben-efit (dádivas) given to him in his official capac-ity while in office shall be liable to imprison-ment from two months to two years and sus-pension from public office for a period of one

to six years. The person offering the gift or ben-efit shall be punished with imprisonment fromone month to one year.

Art 260: (Arbitrary handling of public funds)Any public official who administers publicfunds or monies with a direction that themonies shall be applied to a certain purpose,and contrary to the direction applies the fundsto any other purpose (within the administration)shall be liable to suspension for a period ofthree months to three years. If any loss or dam-age is caused to the Administration by hisaction, the accused shall be fined with a sumequivalent to 20% to 50% of the funds affected.

Art 261: (Embezzlement of public funds) Apublic official who takes property or fundsentrusted to him for custody, collection oradministration with the intention of unlawfullyappropriating it to himself shall be liable toimprisonment for a period of two to ten yearsand suspension from public office for life. Thesame punishment shall be imposed on any pub-lic official who benefits personally from worksor services paid for with public funds.

Art 262: A public official who, by his negli-gent behaviour, causes or permits a third partyto embezzle or misappropriate public fundsshall be fined with an amount equivalent to20% to 60% of the funds affected.

Art 263: Those administering or in charge ofthe custody of property or assets belonging topublic schools or charity organisations, as wellas persons acting as administrators or custodi-ans of attached or sequestrated goods or assetsare subject to the regulations of the provisionsset out above.

Art 264: Any public official who unlawfully orwithout justification delays or obstructs pay-ments duly authorised shall be suspended frompublic office for a period of one to six months.The same punishment shall be imposed on apublic official who, after being legally requiredto do so, refuses to hand over or deliver fundsor other property entrusted to him for adminis-tration or custody.

Art 265: A public official who, by himself orthrough another person, directly or indirectly

Public Interest Disclosure Act 1998 1998 Chapter 23

Arrangement of sectionsSection

1. Protected disclosures2. Right not to suffer detriment3. Complaints to employment tribunal4. Limit on amount of compensation5. Unfair dismissal6. Redundancy7. Exclusion of restrictions on right not to

be unfairly dismissed8. Compensation for unfair dismissal9. Interim relief

10. Crown employment11. National security12. Work outside Great Britain13. Police officers14. Remedy for infringement of rights15. Interpretative provisions of 1996 Act16. Dismissal of those taking part in unoffi-

cial industrial action17. Corresponding provision for Northern

Ireland18. Short title, interpretation, commence-

ment and extent

An Act to protect individuals who make certaindisclosures of information in the public interest;to allow such individuals to bring action inrespect of victimisation; and for connected pur-poses.

[2nd July 1998]

BE IT ENACTED by the Queen’s most

Excellent Majesty, by and with the advice andconsent of the Lords Spiritual and Temporal,and Commons, in this present Parliamentassembled, and by the authority of the same, asfollows:–

Protected disclosures1. After Part IV of the Employment Rights Act1996 (in this Act referred to as “the 1996 Act”)there is inserted –

“PART IVAPROTECTED DISCLOSURES43A. – In this Act a “protecteddisclosure” means a qualifyingdisclosure (as defined by section43B) which is made by a workerin accordance with any of sections43C to 43H.43B. – (1) In this Part a “qualify-ing disclosure” means any disclo-sure of information which, in thereasonable belief of the workermaking the disclosure, tends toshow one or more of the following–

(a) that a criminal offence hasbeen committed, is being com-mitted or is likely to be commit-ted,(b) that a person has failed, isfailing or is likely to fail to com-ply with any legal obligation towhich he is subject,(c) that a miscarriage of justicehas occurred, is occurring or islikely to occur,

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i.e. by an action carried out to conceal the trueaction (acto simulado), becomes involved per-sonally in any dealings (contract or any otherbusiness transactions) with the government per-formed in his official capacity shall be liable toimprisonment for a period of two to six years

and suspension from public office for a periodof three to ten years.

The same applies to any person entrustedwith the custody, conservation, administrationor partition of property belonging to a thirdparty.

Meaning of “protected disclosure”.

Disclosuresqualifyingfor protec-tion.

ANNEX III: UNITED KINGDOM PUBLIC INTEREST DISCLOSURE ACT

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(d) that the health or safety ofany individual has been, is beingor is likely to be endangered,(e) that the environment hasbeen, is being or is likely to bedamaged, or(f) that information tending toshow any matter falling withinany one of the preceding para-graphs has been, is being or islikely to be deliberately con-cealed.

(2) For the purposes of subsection(1), it is immaterial whether therelevant failure occurred, occursor would occur in the UnitedKingdom or elsewhere, andwhether the law applying to it isthat of the United Kingdom or ofany other country or territory.(3) A disclosure of information isnot a qualifying disclosure if theperson making the disclosure com-mits an offence by making it.(4) A disclosure of information inrespect of which a claim to legalprofessional privilege (or, inScotland, to confidentiality asbetween client and professionallegal adviser) could be maintainedin legal proceedings is not a quali-fying disclosure if it is made by aperson to whom the informationhad been disclosed in the course ofobtaining legal advice.(5) In this Part “the relevant fail-ure”, in relation to a qualifyingdisclosure, means the matterfalling within paragraphs (a) to (f)of subsection (1).43C. – (1) A qualifying disclosureis made in accordance with thissection if the worker makes thedisclosure in good faith –

(a) to his employer, or(b) where the worker reasonablybelieves that the relevant failurerelates solely or mainly to –

(i) the conduct of a person otherthan his employer, or(ii) any other matter for which aperson other than his employerhas legal responsibility,

to that other person.(2) A worker who, in accordancewith a procedure whose use byhim is authorised by his employer,makes a qualifying disclosure to aperson other than his employer, isto be treated for the purposes ofthis Part as making the qualifyingdisclosure to his employer.43D. – A qualifying disclosure ismade in accordance with this sec-tion if it is made in the course ofobtaining legal advice.43E. – A qualifying disclosure ismade in accordance with this sec-tion if –

(a) the worker’s employer is – (i) an individual appointedunder any enactment by aMinister of the Crown, or(ii) a body any of whose mem-bers are so appointed, and

(b) the disclosure is made ingood faith to a Minister of theCrown.

43F. – (1) A qualifying disclosureis made in accordance with thissection if the worker –

(a) makes the disclosure in goodfaith to a person prescribed by anorder made by the Secretary ofState for the purposes of this sec-tion, and(b) reasonably believes –

(i) that the relevant failure fallswithin any description of mat-ters in respect of which thatperson is so prescribed, and(ii) that the information dis-closed, and any allegation con-tained in it, are substantiallytrue.

(2) An order prescribing personsfor the purposes of this sectionmay specify persons or descrip-tions of persons, and shall specifythe descriptions of matters inrespect of which each person, orpersons of each description, is orare prescribed.43G. – (1) A qualifying disclosureis made in accordance with thissection if –

Disclosureto employeror otherresponsibleperson.

Disclosureto legaladviser.

Disclosureto Ministerof theCrown.

Disclosureto prescribedperson.

Disclosurein othercases.

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(a) the worker makes the disclo-sure in good faith,(b) he reasonably believes thatthe information disclosed, andany allegation contained in it, aresubstantially true,(c) he does not make the disclo-sure for purposes of personalgain,(d) any of the conditions in sub-section (2) is met, and(e) in all the circumstances of thecase, it is reasonable for him tomake the disclosure.

(2) The conditions referred to insubsection (1)(d) are –

(a) that, at the time he makes thedisclosure, the worker reason-ably believes that he will be sub-jected to a detriment by hisemployer if he makes a disclo-sure to his employer or in accor-dance with section 43F,(b) that, in a case where no per-son is prescribed for the purposesof section 43F in relation to therelevant failure, the worker rea-sonably believes that it is likelythat evidence relating to the rele-vant failure will be concealed ordestroyed if he makes a disclo-sure to his employer, or(c) that the worker has previous-ly made a disclosure of substan-tially the same information –

(i) to his employer, or(ii) in accordance with section43F.

(3) In determining for the purpos-es of subsection (1)(e) whether itis reasonable for the worker tomake the disclosure, regard shallbe had, in particular, to –

(a) the identity of the person towhom the disclosure is made,(b) the seriousness of the rele-vant failure,(c) whether the relevant failure iscontinuing or is likely to occur inthe future,(d) whether the disclosure ismade in breach of a duty of con-fidentiality owed by the employ-

er to any other person,(e) in a case falling within sub-section (2)(c)(i) or (ii), anyaction which the employer or theperson to whom the previous dis-closure in accordance with sec-tion 43F was made has taken ormight reasonably be expected tohave taken as a result of the pre-vious disclosure, and(f) in a case falling within sub-section (2)(c)(i), whether in mak-ing the disclosure to the employ-er the worker complied with anyprocedure whose use by him wasauthorised by the employer.

(4) For the purposes of this sectiona subsequent disclosure may beregarded as a disclosure of sub-stantially the same information asthat disclosed by a previous dis-closure as mentioned in subsection(2)(c) even though the subsequentdisclosure extends to informationabout action taken or not taken byany person as a result of the previ-ous disclosure.43H. – (1) A qualifying disclosureis made in accordance with thissection if –

(a) the worker makes the disclo-sure in good faith,(b) he reasonably believes thatthe information disclosed, andany allegation contained in it, aresubstantially true,(c) he does not make the disclo-sure for purposes of personalgain,(d) the relevant failure is of anexceptionally serious nature, and(e) in all the circumstances of thecase, it is reasonable for him tomake the disclosure.

(2) In determining for the purpos-es of subsection (1)(e) whether itis reasonable for the worker tomake the disclosure, regard shallbe had, in particular, to the identi-ty of the person to whom the dis-closure is made.43J. – (1) Any provision in an

Disclosureof excep-tionally serious failure.

Contractualduties ofconfiden-tiality.

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agreement to which this sectionapplies is void insofar as it pur-ports to preclude the worker frommaking a protected disclosure.(2) This section applies to anyagreement between a worker andhis employer (whether a worker’scontract or not), including anagreement to refrain from institut-ing or continuing any proceedingsunder this Act or any proceedingsfor breach of contract.43K. – (1) For the purposes of thisPart “worker” includes an individ-ual who is not a worker as definedby section 230(3) but who –

(a) works or worked for a personin circumstances in which –

(i) he is or was introduced orsupplied to do that work by athird person, and(ii) the terms on which he is orwas engaged to do the work areor were in practice substantiallydetermined not by him but bythe person for whom he worksor worked, by the third personor by both of them,

(b) contracts or contracted with aperson, for the purposes of thatperson’s business, for the execu-tion of work to be done in aplace not under the control ormanagement of that person andwould fall within section230(3)(b) if for “personally” inthat provision there were substi-tuted “(whether personally orotherwise)”,(c) works or worked as a personproviding general medical ser-vices, general dental services,general ophthalmic services orpharmaceutical services in accor-dance with arrangements made –

(i) by a Health Authority undersection 29, 35, 38 or 41 of theNational Health Service Act1977, or(ii) by a Health Board undersection 19, 25, 26 or 27 of theNational Health Service(Scotland) Act 1978, or

(d) is or was provided with workexperience provided pursuant toa training course or programmeor with training for employment(or with both) otherwise than –

(i) under a contract of employ-ment, or(ii) by an educational establish-ment on a course run by thatestablishment;

and any reference to a worker’scontract, to employment or to aworker being “employed” shallbe construed accordingly.

(2) For the purposes of this Part“employer” includes –

(a) in relation to a worker fallingwithin paragraph (a) of subsec-tion (1), the person who substan-tially determines or determinedthe terms on which he is or wasengaged,(b) in relation to a worker fallingwithin paragraph (c) of that sub-section, the authority or boardreferred to in that paragraph, and(c) in relation to a worker fallingwithin paragraph (d) of that sub-section, the person providing thework experience or training.

(3) In this section “educationalestablishment” includes any uni-versity, college, school or othereducational establishment.43L. – (1) In this Part – “qualifying disclosure” has themeaning given by section 43B;“the relevant failure”, in relationto a qualifying disclosure, has the meaning given by section43B(5).(2) In determining for the purpos-es of this Part whether a personmakes a disclosure for purposes ofpersonal gain, there shall be disre-garded any reward payable by orunder any enactment.(3) Any reference in this Part tothe disclosure of information shallhave effect, in relation to any casewhere the person receiving theinformation is already aware of it,

Extensionof meaningof “work-er” etc. forPart IVA.

Other inter-pretativeprovisions.

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as a reference to bringing theinformation to his attention.

Right not to suffer detriment2. After section 47A of the 1996 Act there isinserted –

47B. – (1) A worker has the rightnot to be subjected to any detri-ment by any act, or any deliberatefailure to act, by his employerdone on the ground that the work-er has made a protected disclosure.(2) Except where the worker is anemployee who is dismissed in cir-cumstances in which, by virtue ofsection 197, Part X does not applyto the dismissal, this section doesnot apply where –

(a) the worker is an employee,and(b) the detriment in questionamounts to dismissal (within themeaning of that Part).

(3) For the purposes of this sec-tion, and of sections 48 and 49 sofar as relating to this section,“worker”, “worker’s contract”,“employment” and “employer”have the extended meaning givenby section 43K.”

Complaints to employment tribunal3. In section 48 of the 1996 Act (complaints toemployment tribunals), after subsection (1)there is inserted –

“(1A) A worker may present a complaint toan employment tribunal that he has beensubjected to a detriment in contravention ofsection 47B.”

Limit on amount of compensation4. – (1) Section 49 of the 1996 Act (remedies)is amended as follows.(2) At the beginning of subsection (2) there isinserted “Subject to subsection (6)”.(3) After subsection (5) there is inserted –

“(6) Where – (a) the complaint is made under section48(1A),(b) the detriment to which the worker issubjected is the termination of his work-er’s contract, and(c) that contract is not a contract ofemployment,

any compensation must not exceed the com-pensation that would be payable underChapter II of Part X if the worker had beenan employee and had been dismissed for thereason specified in section 103A.”

Unfair dismissal5. After section 103 of the 1996 Act there isinserted –

103A. An employee who is dis-missed shall be regarded for thepurposes of this Part as unfairlydismissed if the reason (or, if morethan one, the principal reason) forthe dismissal is that the employeemade a protected disclosure.”

Redundancy6. After subsection (6) of section 105 of the1996 Act (redundancy) there is inserted –

“(6A) This subsection applies if the reason(or, if more than one, the principal reason)for which the employee was selected fordismissal was that specified in section103A.”

Exclusion of restrictions on right not to beunfairly dismissed7. – (1) In subsection (3) of section 108 of the1996 Act (cases where qualifying period ofemployment not required), after paragraph (f)there is inserted –

“(ff) section 103A applies,”(2) In subsection (2) of section 109 of the 1996Act (disapplication of upper age limit), afterparagraph (f) there is inserted –

“(ff) section 103A applies,”.

Compensation for unfair dismissal8. – (1) In section 112(4) of the 1996 Act (com-pensation for unfair dismissal) after “sections118 to 127A” there is inserted “or in accor-dance with regulations under section 127B”.(2) In section 117 of that Act (enforcement oforder for reinstatement or re-engagement) –

(a) in subsection (2) after “section 124”there is inserted “and to regulations undersection 127B”, and(b) in subsection (3) after “and (2)” there isinserted “and to regulations under section127B”.

(3) In section 118 of that Act (general provi-sions as to unfair dismissal), at the beginning of

“Protecteddisclosure.

“Protecteddisclosures.

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subsection (1) there is inserted “Subject to reg-ulations under section 127B,”.(4) After section 127A of the 1996 Act there isinserted –

127B. – (1) This section applieswhere the reason (or, if more thanone, the principal reason) –

(a) in a redundancy case, forselecting the employee for dis-missal, or

(b) otherwise, for the dismissal,is that specified in section 103A.

(2) The Secretary of State may byregulations provide that where thissection applies any award of com-pensation for unfair dismissalunder section 112(4) or 117(1) or117(3) shall, instead of being cal-culated in accordance with theprovisions of sections 117 to127A, consist of one or moreawards calculated in such manneras may be prescribed by the regu-lations.(3) Regulations under this sectionmay, in particular, apply any ofthe provisions of sections 117 to127A with such modifications asmay be specified in the regula-tions.”

Interim relief9. In sections 128(1)(b) and 129(1) of the 1996Act (which relate to interim relief) for “or 103”there is substituted “, 103 or 103A”.

Crown employment10. In section 191 of the 1996 Act (Crownemployment), in subsection (2) after paragraph(a) there is inserted –

“(aa) Part IVA,”.

National security11. – (1) Section 193 of the 1996 Act (nationalsecurity) is amended as follows.(2) In subsection (2) after paragraph (b) there isinserted –

“(bb) Part IVA,(bc) in Part V, section 47B,”.

(3) After subsection (3) of that section there isinserted –

“(4) Part IVA and sections 47B and 103A

do not have effect in relation to employ-ment for the purposes of the SecurityService, the Secret Intelligence Service orthe Government Communications Head-quarters.”

Work outside Great Britain12. – (1) Section 196 of the 1996 Act (employ-ment outside Great Britain) is amended as fol-lows.(2) After subsection (3) there is inserted –

“(3A) Part IVA and section 47B do notapply to employment where under theworker’s contract he ordinarily works out-side Great Britain.”

(3) In subsection (5), after “subsections (2)”there is inserted “, (3A)”.

Police officers13. In section 200 of the 1996 Act (police offi-cers), in subsection (1) (which lists provisionsof the Act which do not apply to employmentunder a contract of employment in police ser-vice, or to persons engaged in such employ-ment)–

(a) after “Part III” there is inserted “, PartIVA”, and(b) after “47” there is inserted “, 47B”.

Remedy for infringement of rights14. In section 205 of the 1996 Act (remedy forinfringement of certain rights) after subsection(1) there is inserted –

“(1A) In relation to the right conferred bysection 47B, the reference in subsection (1)to an employee has effect as a reference to aworker.”

Interpretative provisions of 1996 Act15. – (1) At the end of section 230 of the 1996Act (employees, workers, etc.) there is inserted–

“(6) This section has effect subject to sec-tions 43K and 47B(3); and for the purposesof Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s con-tract” and, in relation to a worker, “employ-er”, “employment” and “employed” havethe extended meaning given by section43K.”

(2) In section 235 of the 1996 Act (other defini-tions) after the definition of “position” there isinserted –

“Dismissalas a result ofprotecteddisclosure.

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“”protected disclosure” has the meaninggiven by section 43A,”.

Dismissal of those taking part in unofficialindustrial action16. – (1) In section 237 of the Trade Union andLabour Relations (Consolidation) Act 1992(dismissal of those taking part in unofficialindustrial action), in subsection (1A) (whichprovides that the exclusion of the right to complain of unfair dismissal does not apply incertain cases) –

(a) for “or 103” there is substituted “, 103 or103A”, and(b) for “and employee representativecases)” there is substituted “employee representative and protected disclosurecases)”.

Corresponding provision for NorthernIreland17. An Order in Council under paragraph1(1)(b) of Schedule 1 to the Northern IrelandAct 1974 (legislation for Northern Ireland inthe interim period) which states that it is madeonly for purposes corresponding to those of thisAct –

(a) shall not be subject to paragraph 1(4)

and (5) of that Schedule (affirmative resolu-tion of both Houses of Parliament), but(b) shall be subject to annulment in pur-suance of a resolution of either House ofParliament.

Short title, interpretation, commencementand extent18. – (1) This Act may be cited as the PublicInterest Disclosure Act 1998.(2) In this Act “the 1996 Act” means theEmployment Rights Act 1996.(3) Subject to subsection (4), this Act shallcome into force on such day or days as theSecretary of State may by order made by statu-tory instrument appoint, and different days maybe appointed for different purposes.(4) The following provisions shall come intoforce on the passing of this Act –

(a) section 1 so far as relating to the powerto make an order under section 43F of the1996 Act,(b) section 8 so far as relating to the powerto make regulations under section 127B ofthe 1996 Act,(c) section 17, and(d) this section.

The Foreign Corrupt Practices ActCurrent through Pub. L. 105-366 (November 10, 1998)United States Code Annotated Title 15. Commerce and Trade Chapter 2B –Securities Exchanges(Anti-Bribery Provisions)

§§ 78m. Periodical and other reports (a) Reports by issuer of security; contents Every issuer of a security registered pursuant tosection 78l of this title shall file with the

Commission, in accordance with such rules andregulations as the Commission may prescribeas necessary or appropriate for the proper pro-tection of investors and to ensure fair dealing inthe security –

(1) such information and documents (andsuch copies thereof) as the Commissionshall require to keep reasonably current theinformation and documents required to beincluded in or filed with an application orregistration statement filed pursuant to sec-tion 78l of this title, except that the

ANNEX IV: UNITED STATES FOREIGN CORRUPT PRACTICES ACT

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Commission may not require the filing ofany material contract wholly executedbefore July 1, 1962. (2) such annual reports (and such copiesthereof), certified if required by the rulesand regulations of the Commission by inde-pendent public accountants, and such quar-terly reports (and such copies thereof), asthe Commission may prescribe. Every issuer of a security registered on anational securities exchange shall also file aduplicate original of such information, doc-uments, and reports with the exchange.

(b) Form of report; books, records, and inter-nal accounting; directives

(1) The Commission may prescribe, inregard to reports made pursuant to this chap-ter, the form or forms in which the requiredinformation shall be set forth, the items ordetails to be shown in the balance sheet andthe earning statement, and the methods to befollowed in the preparation of reports, in theappraisal or valuation of assets and liabilities,in the determination of depreciation anddepletion, in the differentiation of recurringand nonrecurring income, in the differentia-tion of investment and operating income, andin the preparation, where the Commissiondeems it necessary or desirable, of separateand/or consolidated balance sheets or incomeaccounts of any person directly or indirectlycontrolling or controlled by the issuer, or anyperson under direct or indirect common con-trol with the issuer; but in the case of thereports of any person whose methods ofaccounting are prescribed under the provi-sions of any law of the United States, or anyrule or regulation thereunder, the rules andregulations of the Commission with respectto reports shall not be inconsistent with therequirements imposed by such law or rule orregulation in respect of the same subject mat-ter (except that such rules and regulations ofthe Commission may be inconsistent withsuch requirements to the extent that theCommission determines that the public inter-est or the protection of investors so requires). (2) Every issuer which has a class of securi-ties registered pursuant to section 78l of thistitle and every issuer which is required tofile reports pursuant to section 78o(d) ofthis title shall –

(A) make and keep books, records, andaccounts, which, in reasonable detail, accu-rately and fairly reflect the transactions anddispositions of the assets of the issuer; and (B) devise and maintain a system of inter-nal accounting controls sufficient to pro-vide reasonable assurances that –

(i) transactions are executed in accor-dance with management’s general orspecific authorisation; (ii) transactions are recorded as necessary (I) to permit preparation offinancial statements in conformity withgenerally accepted accounting princi-ples or any other criteria applicable tosuch statements, and (II) to maintainaccountability for assets; (iii) access to assets is permitted only inaccordance with management’s generalor specific authorisation; and (iv) the recorded accountability forassets is compared with the existingassets at reasonable intervals andappropriate action is taken with respectto any differences.

(3) (A)With respect to matters concerning thenational security of the United States, noduty or liability under paragraph (2) ofthis subsection shall be imposed upon anyperson acting in cooperation with thehead of any Federal department or agencyresponsible for such matters if such act incooperation with such head of a depart-ment or agency was done upon the specif-ic, written directive of the head of suchdepartment or agency pursuant to Presi-dential authority to issue such directives.Each directive issued under this para-graph shall set forth the specific facts andcircumstances with respect to which theprovisions of this paragraph are to beinvoked. Each such directive shall, unlessrenewed in writing, expire one year afterthe date of issuance. (B) Each head of a Federal department oragency of the United States who issues adirective pursuant to this paragraph shallmaintain a complete file of all such direc-tives and shall, on October 1 of each year,transmit a summary of matters covered bysuch directives in force at any time duringthe previous year to the Permanent SelectCommittee on Intelligence of the House

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of Representatives and the SelectCommittee on Intelligence of the Senate.

(4) No criminal liability shall be imposedfor failing to comply with the requirementsof paragraph (2) of this subsection except asprovided in paragraph (5) of this subsection. (5) No person shall knowingly circumventor knowingly fail to implement a system ofinternal accounting controls or knowinglyfalsify any book, record, or accountdescribed in paragraph (2). (6) Where an issuer which has a class ofsecurities registered pursuant to section 78lof this title or an issuer which is required tofile reports pursuant to section 78o(d) ofthis title holds 50 per centum or less of thevoting power with respect to a domestic orforeign firm, the provisions of paragraph (2)require only that the issuer proceed in goodfaith to use its influence, to the extent rea-sonable under the issuer’s circumstances, tocause such domestic or foreign firm todevise and maintain a system of internalaccounting controls consistent with para-graph (2). Such circumstances include therelative degree of the issuer’s ownership ofthe domestic or foreign firm and the lawsand practices governing the business opera-tions of the country in which such firm islocated. An issuer which demonstrates goodfaith efforts to use such influence shall beconclusively presumed to have compliedwith the requirements of paragraph (2). (7) For the purpose of paragraph (2) of thissubsection, the terms “reasonable assur-ances” and “reasonable detail” mean suchlevel of detail and degree of assurance aswould satisfy prudent officials in the con-duct of their own affairs.

(c) Alternative reports If in the judgment of the Commission anyreport required under subsection (a) of this sec-tion is inapplicable to any specified class orclasses of issuers, the Commission shall requirein lieu thereof the submission of such reports ofcomparable character as it may deem applicableto such class or classes of issuers.

(d) Reports by persons acquiring more thanfive per centum of certain classes of securities

(1) Any person who, after acquiring directlyor indirectly the beneficial ownership of any

equity security of a class which is registeredpursuant to section 78l of this title, or anyequity security of an insurance companywhich would have been required to be soregistered except for the exemption con-tained in section 78l(g)(2)(G) of this title, orany equity security issued by a closed-endinvestment company registered under theInvestment Company Act of 1940 [> 15U.S.C.A. S 80a-1 et seq.] or any equitysecurity issued by a Native Corporation pur-suant to section 1629c(d)(6) of Title 43, isdirectly or indirectly the beneficial owner ofmore than 5 per centum of such class shall,within ten days after such acquisition, sendto the issuer of the security at its principalexecutive office, by registered or certifiedmail, send to each exchange where the secu-rity is traded, and filed with the Commis-sion, a statement containing such of the fol-lowing information, and such additionalinformation, as the Commission may byrules and regulations, prescribe as necessaryor appropriate in the public interest or forthe protection of investors –

(A) the background, and identity, resi-dence, and citizenship of, and the natureof such beneficial ownership by, suchperson and all other persons by whom oron whose behalf the purchases have beenor are to be effected; (B) the source and amount of the funds orother consideration used or to be used inmaking the purchases, and if any part ofthe purchase price is represented or is tobe represented by funds or other consider-ation borrowed or otherwise obtained forthe purpose of acquiring, holding, or trad-ing such security, a description of thetransaction and the names of the partiesthereto, except that where a source offunds is a loan made in the ordinarycourse of business by a bank, as definedin section 78c(a)(6) of this title, if the per-son filing such statement so requests, thename of the bank shall not be made avail-able to the public; (C) if the purpose of the purchases orprospective purchases is to acquire con-trol of the business of the issuer of thesecurities, any plans or proposals whichsuch persons may have to liquidate suchissuer, to sell its assets to or merge it with

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any other persons, or to make any othermajor change in its business or corporatestructure; (D) the number of shares of such securitywhich are beneficially owned, and thenumber of shares concerning which thereis a right to acquire, directly or indirectly,by (i) such person, and (ii) by each asso-ciate of such person, giving the back-ground, identity, residence, and citizen-ship of each such associate; and (E) information as to any contracts,arrangements, or understandings with anyperson with respect to any securities ofthe issuer, including but not limited totransfer of any of the securities, joint ven-tures, loan or option arrangements, putsor calls, guaranties of loans, guarantiesagainst loss or guaranties of profits, division of losses or profits, or the givingor withholding of proxies, naming thepersons with whom such contracts,arrangements, or understandings havebeen entered into, and giving the detailsthereof.

(2) If any material change occurs in thefacts set forth in the statements to the issuerand the exchange, and in the statement filedwith the Commission, an amendment shallbe transmitted to the issuer and theexchange and shall be filed with theCommission, in accordance with such rulesand regulations as the Commission mayprescribe as necessary or appropriate in thepublic interest or for the protection ofinvestors. (3) When two or more persons act as a part-nership, limited partnership, syndicate, orother group for the purpose of acquiring,holding, or disposing of securities of anissuer, such syndicate or group shall bedeemed a “person” for the purposes of thissubsection. (4) In determining, for purposes of this sub-section, any percentage of a class of anysecurity, such class shall be deemed to con-sist of the amount of the outstanding securi-ties of such class, exclusive of any securi-ties of such class held by or for the accountof the issuer or a subsidiary of the issuer. (5) The Commission, by rule or regulationor by order, may permit any person to file inlieu of the statement required by paragraph

(1) of this subsection or the rules and regu-lations thereunder, a notice stating the nameof such person, the number of shares of anyequity securities subject to paragraph (1)which are owned by him, the date of theiracquisition and such other information asthe Commission may specify, if it appearsto the Commission that such securities wereacquired by such person in the ordinarycourse of his business and were notacquired for the purpose of and do not havethe effect of changing or influencing thecontrol of the issuer nor in connection withor as a participant in any transaction havingsuch purpose or effect. (6) The provisions of this subsection shallnot apply to –

(A) any acquisition or offer to acquiresecurities made or proposed to be madeby means of a registration statementunder the Securities Act of 1933 [> 15U.S.C.A. 77a et seq.]; (B) any acquisition of the beneficial own-ership of a security which, together withall other acquisitions by the same personof securities of the same class during thepreceding twelve months, does notexceed 2 per centum of that class; (C) any acquisition of an equity securityby the issuer of such security; (D) any acquisition or proposed acquisi-tion of a security which the Commission,by rules or regulations or by order, shallexempt from the provisions of this sub-section as not entered into for the purposeof, and not having the effect of, changingor influencing the control of the issuer orotherwise as not comprehended withinthe purposes of this subsection.

(e) Purchase of securities by issuer (1) It shall be unlawful for an issuer whichhas a class of equity securities registeredpursuant to section 78l of this title, or whichis a closed-end investment company regis-tered under the Investment Company Act of1940 [> 15 U.S.C.A. S 80a-1 et seq.], topurchase any equity security issued by it ifsuch purchase is in contravention of suchrules and regulations as the Commission, inthe public interest or for the protection ofinvestors, may adopt (A) to define acts andpractices which are fraudulent, deceptive, or

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manipulative, and (B) to prescribe meansreasonably designed to prevent such actsand practices. Such rules and regulationsmay require such issuer to provide holdersof equity securities of such class with suchinformation relating to the reasons for suchpurchase, the source of funds, the numberof shares to be purchased, the price to bepaid for such securities, the method of pur-chase, and such additional information, asthe Commission deems necessary or appro-priate in the public interest or for the protec-tion of investors, or which the Commissiondeems to be material to a determinationwhether such security should be sold. (2) For the purpose of this subsection, apurchase by or for the issuer or any personcontrolling, controlled by, or under com-mon control with the issuer, or a purchasesubject to control of the issuer or any suchperson, shall be deemed to be a purchase bythe issuer. The Commission shall havepower to make rules and regulations imple-menting this paragraph in the public interestand for the protection of investors, includ-ing exemptive rules and regulations cover-ing situations in which the Commissiondeems it unnecessary or inappropriate that apurchase of the type described in this para-graph shall be deemed to be a purchase bythe issuer for purposes of some or all of theprovisions of paragraph (1) of this subsec-tion. (3) At the time of filing such statement asthe Commission may require by rule pur-suant to paragraph (1) of this subsection, theperson making the filing shall pay to theCommission a fee of 1/50 of 1 per centumof the value of securities proposed to bepurchased. The fee shall be reduced withrespect to securities in an amount equal toany fee paid with respect to any securitiesissued in connection with the proposedtransaction under section 6(b) of theSecurities Act of 1933 [15 U.S.C.A. S77f(b) ], or the fee paid under that sectionshall be reduced in an amount equal to thefee paid to the Commission in connectionwith such transaction under this paragraph.

(f) Reports by institutional investment managers

(1) Every institutional investment manager

which uses the mails, or any means orinstrumentality of interstate commerce inthe course of its business as an institutionalinvestment manager and which exercisesinvestment discretion with respect toaccounts holding equity securities of a classdescribed in subsection (d)(1) of this sectionhaving an aggregate fair market value onthe last trading day in any of the precedingtwelve months of at least $100,000,000 orsuch lesser amount (but in no case less than$10,000,000) as the Commission, by rule,may determine, shall file reports with theCommission in such form, for such periods,and at such times after the end of such peri-ods as the Commission, by rule, may pre-scribe, but in no event shall such reports befiled for periods longer than one year orshorter than one quarter. Such reports shallinclude for each such equity security heldon the last day of the reporting period byaccounts (in aggregate or by type as theCommission, by rule, may prescribe) withrespect to which the institutional investmentmanager exercises investment discretion(other than securities held in amounts whichthe Commission, by rule, determines to beinsignificant for purposes of this subsec-tion), the name of the issuer and the title,class, CUSIP number, number of shares orprincipal amount, and aggregate fair marketvalue of each such security. Such reportsmay also include for accounts (in aggregateor by type) with respect to which the institutional investment manager exercisesinvestment discretion such of the followinginformation as the Commission, by rule,prescribes –

(A) the name of the issuer and the title,class, CUSIP number, number of sharesor principal amount, and aggregate fairmarket value or cost or amortised cost ofeach other security (other than an exempt-ed security) held on the last day of thereporting period by such accounts; (B) the aggregate fair market value orcost or amortised cost of exempted secu-rities (in aggregate or by class) held onthe last day of the reporting period bysuch accounts; (C) the number of shares of each equitysecurity of a class described in subsection(d)(1) of this section held on the last day

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of the reporting period by such accountswith respect to which the institutionalinvestment manager possesses sole orshared authority to exercise the votingrights evidenced by such securities; (D) the aggregate purchases and aggre-gate sales during the reporting period ofeach security (other than an exemptedsecurity) effected by or for such accounts;and (E) with respect to any transaction orseries of transactions having a marketvalue of at least $500,000 or such otheramount as the Commission, by rule, maydetermine, effected during the reportingperiod by or for such accounts in anyequity security of a class described insubsection (d)(1) of this section –

(i) the name of the issuer and the title,class, and CUSIP number of the securi-ty; (ii) the number of shares or principalamount of the security involved in thetransaction; (iii) whether the transaction was a pur-chase or sale; (iv) the per share price or prices atwhich the transaction was effected; (v) the date or dates of the transaction; (vi) the date or dates of the settlementof the transaction; (vii) the broker or dealer through whomthe transaction was effected; (viii) the market or markets in whichthe transaction was effected; and (ix) such other related information asthe Commission, by rule, may pre-scribe.

(2) The Commission, by rule or order, mayexempt, conditionally or unconditionally,any institutional investment manager orsecurity or any class of institutional invest-ment managers or securities from any or allof the provisions of this subsection or therules thereunder. (3) The Commission shall make available tothe public for a reasonable fee a list of allequity securities of a class described in sub-section (d)(1) of this section, updated noless frequently than reports are required tobe filed pursuant to paragraph (1) of thissubsection. The Commission shall tabulatethe information contained in any report filed

pursuant to this subsection in a mannerwhich will, in the view of the Commission,maximise the usefulness of the informationto other Federal and State authorities andthe public. Promptly after the filing of anysuch report, the Commission shall make theinformation contained therein convenientlyavailable to the public for a reasonable feein such form as the Commission, by rule,may prescribe, except that the Commission,as it determines to be necessary or appropri-ate in the public interest or for the protec-tion of investors, may delay or prevent pub-lic disclosure of any such information inaccordance with section 552 of Title 5.Notwithstanding the preceding sentence,any such information identifying the securi-ties held by the account of a natural personor an estate or trust (other than a businesstrust or investment company) shall not bedisclosed to the public. (4) In exercising its authority under thissubsection, the Commission shall determine(and so state) that its action is necessary orappropriate in the public interest and for theprotection of investors or to maintain fairand orderly markets or, in granting anexemption, that its action is consistent withthe protection of investors and the purposesof this subsection. In exercising suchauthority the Commission shall take suchsteps as are within its power, including con-sulting with the Comptroller General of theUnited States, the Director of the Office ofManagement and Budget, the appropriateregulatory agencies, Federal and Stateauthorities which, directly or indirectly,require reports from institutional investmentmanagers of information substantially simi-lar to that called for by this subsection,national securities exchanges, and regis-tered securities associations, (A) to achieveuniform, centralised reporting of informa-tion concerning the securities holdings ofand transactions by or for accounts withrespect to which institutional investmentmanagers exercise investment discretion,and (B) consistently with the objective setforth in the preceding subparagraph, toavoid unnecessarily duplicative reportingby, and minimise the compliance burden on,institutional investment managers. Federalauthorities which, directly or indirectly,

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require reports from institutional investmentmanagers of information substantially simi-lar to that called for by this subsection shallcooperate with the Commission in the per-formance of its responsibilities under thepreceding sentence. An institutional invest-ment manager which is a bank, the depositsof which are insured in accordance with theFederal Deposit Insurance Act [> 12U.S.C.A. S 1811 et seq.], shall file with theappropriate regulatory agency a copy ofevery report filed with the Commission pur-suant to this subsection. (5) (A) For purposes of this subsection theterm “institutional investment manager”includes any person, other than a naturalperson, investing in or buying and sellingsecurities for its own account, and any per-son exercising investment discretion withrespect to the account of any other person.

(B) The Commission shall adopt suchrules as it deems necessary or appropriateto prevent duplicative reporting pursuantto this subsection by two or more institu-tional investment managers exercisinginvestment discretion with respect to thesame amount.

(g) Statement of equity security ownership (1) Any person who is directly or indirectlythe beneficial owner of more than 5 per cen-tum of any security of a class described insubsection (d)(1) of this section shall sendto the issuer of the security and shall filewith the Commission a statement settingforth, in such form and at such time as theCommission may, by rule, prescribe –

(A) such person’s identity, residence, andcitizenship; and (B) the number and description of theshares in which such person has an inter-est and the nature of such interest.

(2) If any material change occurs in thefacts set forth in the statement sent to theissuer and filed with the Commission, anamendment shall be transmitted to theissuer and shall be filed with the Commis-sion, in accordance with such rules and reg-ulations as the Commission may prescribeas necessary or appropriate in the publicinterest or for the protection of investors. (3) When two or more persons act as a part-nership, limited partnership, syndicate, or

other group for the purpose of acquiring,holding, or disposing of securities of anissuer, such syndicate or group shall bedeemed a “person” for the purposes of thissubsection. (4) In determining, for purposes of this sub-section, any percentage of a class of anysecurity, such class shall be deemed to con-sist of the amount of the outstanding securi-ties of such class, exclusive of any securi-ties of such class held by or for the accountof the issuer or a subsidiary of the issuer. (5) In exercising its authority under thissubsection, the Commission shall take suchsteps as it deems necessary or appropriate inthe public interest or for the protection ofinvestors (A) to achieve centralised report-ing of information regarding ownership, (B)to avoid unnecessarily duplicative reportingby and minimise the compliance burden onpersons required to report, and (C) to tabu-late and promptly make available the infor-mation contained in any report filed pur-suant to this subsection in a manner whichwill, in the view of the Commission, max-imise the usefulness of the information toother Federal and State agencies and thepublic. (6) The Commission may, by rule or order,exempt, in whole or in part, any person orclass of persons from any or all of thereporting requirements of this subsection asit deems necessary or appropriate in thepublic interest or for the protection ofinvestors.

(h) Large trader reporting (1) Identification requirements for largetraders: For the purpose of monitoring theimpact on the securities markets of securi-ties transactions involving a substantial vol-ume or a large fair market value or exercisevalue and for the purpose of otherwise as-sisting the Commission in the enforcementof this chapter, each large trader shall –

(A) provide such information to theCommission as the Commission may byrule or regulation prescribe as necessaryor appropriate, identifying such largetrader and all accounts in or throughwhich such large trader effects such trans-actions; and (B) identify, in accordance with such

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rules or regulations as the Commissionmay prescribe as necessary or appropri-ate, to any registered broker or dealer byor through whom such large trader direct-ly or indirectly effects securities transac-tions, such large trader and all accountsdirectly or indirectly maintained withsuch broker or dealer by such large traderin or through which such transactions areeffected.

(2) Recordkeeping and reporting require-ments for brokers and dealers: Every regis-tered broker or dealer shall make and keepfor prescribed periods such records as theCommission by rule or regulation pre-scribes as necessary or appropriate in thepublic interest, for the protection ofinvestors, or otherwise in furtherance of thepurposes of this chapter, with respect tosecurities transactions that equal or exceedthe reporting activity level effected directlyor indirectly by or through such registeredbroker or dealer of or for any person thatsuch broker or dealer knows is a large trad-er, or any person that such broker or dealerhas reason to know is a large trader on thebasis of transactions in securities effectedby or through such broker or dealer. Suchrecords shall be available for reporting tothe Commission, or any self-regulatoryorganisation that the Commission shall designate to receive such reports, on themorning of the day following the day thetransactions were effected, and shall bereported to the Commission or a self-regula-tory organisation designated by the Com-mission immediately upon request by theCommission or such a self-regulatoryorganisation. Such records and reports shallbe in a format and transmitted in a mannerprescribed by the Commission (including,but not limited to, machine readable form). (3) Aggregation rules: The Commissionmay prescribe rules or regulations govern-ing the manner in which transactions andaccounts shall be aggregated for the purposeof this subsection, including aggregation onthe basis of common ownership or control. (4) Examination of broker and dealerrecords: All records required to be madeand kept by registered brokers and dealerspursuant to this subsection with respect totransactions effected by large traders are

subject at any time, or from time to time, tosuch reasonable periodic, special, or otherexaminations by representatives of theCommission as the Commission deems nec-essary or appropriate in the public interest,for the protection of investors, or otherwisein furtherance of the purposes of this chap-ter. (5) Factors to be considered in Commissionactions: In exercising its authority underthis subsection, the Commission shall takeinto account –

(A) existing reporting systems; (B) the costs associated with maintaininginformation with respect to transactionseffected by large traders and reportingsuch information to the Commission orself-regulatory organisations; and (C) the relationship between the UnitedStates and international securities mar-kets.

(6) Exemptions: The Commission, by rule,regulation, or order, consistent with the pur-poses of this chapter, may exempt any per-son or class of persons or any transaction orclass of transactions, either conditionally orupon specified terms and conditions or forstated periods, from the operation of thissubsection, and the rules and regulationsthereunder. (7) Authority of Commission to limit dis-closure of information: Notwithstandingany other provision of law, the Commissionshall not be compelled to disclose any infor-mation required to be kept or reported underthis subsection. Nothing in this subsectionshall authorise the Commission to withholdinformation from Congress, or prevent theCommission from complying with a requestfor information from any other Federaldepartment or agency requesting informa-tion for purposes within the scope of itsjurisdiction, or complying with an order of acourt of the United States in an actionbrought by the United States or theCommission. For purposes of section 552 ofTitle 5, this subsection shall be considered astatute described in subsection (b)(3)(B) ofsuch section 552. (8) Definitions: For purposes of this subsec-tion –

(A) the term “large trader” means everyperson who, for his own account or an

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account for which he exercises invest-ment discretion, effects transactions forthe purchase or sale of any publicly trad-ed security or securities by use of anymeans or instrumentality of interstatecommerce or of the mails, or of any facil-ity of a national securities exchange,directly or indirectly by or through a reg-istered broker or dealer in an aggregateamount equal to or in excess of the identi-fying activity level; (B) the term “publicly traded security”means any equity security (including anoption on individual equity securities, andan option on a group or index of suchsecurities) listed, or admitted to unlistedtrading privileges, on a national securitiesexchange, or quoted in an automatedinterdealer quotation system; (C) the term “identifying activity level”means transactions in publicly tradedsecurities at or above a level of volume,fair market value, or exercise value asshall be fixed from time to time by theCommission by rule or regulation, speci-fying the time interval during which suchtransactions shall be aggregated; (D) the term “reporting activity level”means transactions in publicly tradedsecurities at or above a level of volume,fair market value, or exercise value asshall be fixed from time to time by theCommission by rule, regulation, or order,specifying the time interval during whichsuch transactions shall be aggregated; and

(E) the term “person” has the meaninggiven in section 78c(a)(9) of this title andalso includes two or more persons acting asa partnership, limited partnership, syndi-cate, or other group, but does not include aforeign central bank.

§§ 78dd-1. Prohibited foreign trade practicesby issuers (a) Prohibition It shall be unlawful for any issuer which has aclass of securities registered pursuant to section78l of this title or which is required to filereports under section 78o(d) of this title, or forany officer, director, employee, or agent ofsuch issuer or any stockholder thereof acting onbehalf of such issuer, to make use of the mailsor any means or instrumentality of interstate

commerce corruptly in furtherance of an offer,payment, promise to pay, or authorisation ofthe payment of any money, or offer, gift,promise to give, or authorisation of the givingof anything of value to –

(1) any foreign official for purposes of – (A) (i) influencing any act or decision ofsuch foreign official in his official capaci-ty, (ii) inducing such foreign official to door omit to do any act in violation of thelawful duty of such official, or (iii) secur-ing any improper advantage; or (B) inducing such foreign official to usehis influence with a foreign governmentor instrumentality thereof to affect orinfluence any act or decision of such gov-ernment or instrumentality,

in order to assist such issuer in obtaining orretaining business for or with, or directingbusiness to, any person; (2) any foreign political party or officialthereof or any candidate for foreign politicaloffice for purposes of –

(A) (i) influencing any act or decision ofsuch party, official, or candidate in its orhis official capacity, (ii) inducing suchparty, official, or candidate to do or omitto do an act in violation of the lawful dutyof such party, official, or candidate, or(iii) securing any improper advantage; or (B) inducing such party, official, or can-didate to use its or his influence with aforeign government or instrumentalitythereof to affect or influence any act ordecision of such government or instru-mentality,

in order to assist such issuer in obtaining orretaining business for or with, or directingbusiness to, any person; or (3) any person, while knowing that all or aportion of such money or thing of value willbe offered, given, or promised, directly orindirectly, to any foreign official, to anyforeign political party or official thereof, orto any candidate for foreign political office,for purposes of –

(A) (i) influencing any act or decision ofsuch foreign official, political party, partyofficial, or candidate in his or its officialcapacity, (ii) inducing such foreign offi-cial, political party, party official, or can-didate to do or omit to do any act in viola-tion of the lawful duty of such foreign

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official, political party, party official, orcandidate, or (iii) securing any improperadvantage; or (B) inducing such foreign official, politi-cal party, party official, or candidate touse his or its influence with a foreigngovernment or instrumentality thereof toaffect or influence any act or decision ofsuch government or instrumentality,

in order to assist such issuer in obtaining orretaining business for or with, or directingbusiness to, any person.

(b) Exception for routine governmental action Subsections (a) and (g) of this section shall notapply to any facilitating or expediting paymentto a foreign official, political party, or partyofficial the purpose of which is to expedite orto secure the performance of a routine govern-mental action by a foreign official, politicalparty, or party official.

(c) Affirmative defenses It shall be an affirmative defense to actionsunder subsection (a) or (g) of this section that –

(1) the payment, gift, offer, or promise ofanything of value that was made, was law-ful under the written laws and regulations ofthe foreign official’s, political party’s, partyofficial’s, or candidate’s country; or (2) the payment, gift, offer, or promise ofanything of value that was made, was a rea-sonable and bona fide expenditure, such astravel and lodging expenses, incurred by oron behalf of a foreign official, party, partyofficial, or candidate and was directly relat-ed to –

(A) the promotion, demonstration, orexplanation of products or services; or (B) the execution or performance of acontract with a foreign government oragency thereof.

(d) Guidelines by Attorney General Not later than one year after August 23, 1988,the Attorney General, after consultation withthe Commission, the Secretary of Commerce,the United States Trade Representative, theSecretary of State, and the Secretary of theTreasury, and after obtaining the views of allinterested persons through public notice andcomment procedures, shall determine to whatextent compliance with this section would be

enhanced and the business community wouldbe assisted by further clarification of the pre-ceding provisions of this section and may,based on such determination and to the extentnecessary and appropriate, issue –

(1) guidelines describing specific types ofconduct, associated with common types ofexport sales arrangements and business contracts, which for purposes of the Depart-ment of Justice’s present enforcement poli-cy, the Attorney General determines wouldbe in conformance with the preceding pro-visions of this section; and (2) general precautionary procedures whichissuers may use on a voluntary basis to con-form their conduct to the Department ofJustice’s present enforcement policy regard-ing the preceding provisions of this section. The Attorney General shall issue the guide-lines and procedures referred to in the pre-ceding sentence in accordance with the pro-visions of subchapter II of chapter 5 of Title5 and those guidelines and procedures shallbe subject to the provisions of chapter 7 ofthat title.

(e) Opinions of Attorney General (1) The Attorney General, after consultationwith appropriate departments and agenciesof the United States and after obtaining theviews of all interested persons through pub-lic notice and comment procedures, shallestablish a procedure to provide responsesto specific inquiries by issuers concerningconformance of their conduct with theDepartment of Justice’s present enforce-ment policy regarding the preceding provi-sions of this section. The Attorney Generalshall, within 30 days after receiving such arequest, issue an opinion in response to thatrequest. The opinion shall state whether ornot certain specified prospective conductwould, for purposes of the Department ofJustice’s present enforcement policy, vio-late the preceding provisions of this section.Additional requests for opinions may befiled with the Attorney General regardingother specified prospective conduct that isbeyond the scope of conduct specified inprevious requests. In any action broughtunder the applicable provisions of this sec-tion, there shall be a rebuttable presumptionthat conduct, which is specified in a request

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by an issuer and for which the AttorneyGeneral has issued an opinion that suchconduct is in conformity with theDepartment of Justice’s present enforce-ment policy, is in compliance with the pre-ceding provisions of this section. Such apresumption may be rebutted by a prepon-derance of the evidence. In considering thepresumption for purposes of this paragraph,a court shall weight all relevant factors,including but not limited to whether theinformation submitted to the AttorneyGeneral was accurate and complete andwhether it was within the scope of the con-duct specified in any request received bythe Attorney General. The Attorney Generalshall establish the procedure required bythis paragraph in accordance with the provi-sions of subchapter II of chapter 5 of Title 5and that procedure shall be subject to theprovisions of chapter 7 of that title. (2) Any document or other material whichis provided to, received by, or prepared inthe Department of Justice or any otherdepartment or agency of the United Statesin connection with a request by an issuerunder the procedure established under para-graph (1), shall be exempt from disclosureunder section 552 of Title 5 and shall not,except with the consent of the issuer, bemade publicly available, regardless ofwhether the Attorney General responds tosuch a request or the issuer withdraws suchrequest before receiving a response. (3) Any issuer who has made a request tothe Attorney General under paragraph (1)may withdraw such request prior to the timethe Attorney General issues an opinion inresponse to such request. Any request sowithdrawn shall have no force or effect. (4) The Attorney General shall, to the maxi-mum extent practicable, provide timelyguidance concerning the Department ofJustice’s present enforcement policy withrespect to the preceding provisions of thissection to potential exporters and smallbusinesses that are unable to obtain spe-cialised counsel on issues pertaining to suchprovisions. Such guidance shall be limitedto responses to requests under paragraph (1)concerning conformity of specified prospec-tive conduct with the Department ofJustice’s present enforcement policy regard-

ing the preceding provisions of this sectionand general explanations of complianceresponsibilities and of potential liabilitiesunder the preceding provisions of this sec-tion.

(f) Definitions For purposes of this section:

(1) (A) The term “foreign official” means anyofficer or employee of a foreign govern-ment or any department, agency, orinstrumentality thereof, or of a publicinternational organisation, or any personacting in an official capacity for or onbehalf of any such government or depart-ment, agency, or instrumentality, or for oron behalf of any such public internationalorganisation. (B) For purposes of subparagraph (A), theterm “public international organisation”means –

(i) an organisation that is designated byExecutive Order pursuant to section 1of the International OrganisationsImmunities Act (22 U.S.C. §§ 288); or (ii) any other international organisationthat is designated by the President byExecutive order for the purposes of thissection, effective as of the date of pub-lication of such order in the FederalRegister.

(2) (A) A person’s state of mind is “know-ing” with respect to conduct, a circum-stance, or a result if –

(i) such person is aware that such per-son is engaging in such conduct, thatsuch circumstance exists, or that suchresult is substantially certain to occur;or (ii) such person has a firm belief thatsuch circumstance exists or that suchresult is substantially certain to occur.

(B) When knowledge of the existence ofa particular circumstance is required foran offense, such knowledge is establishedif a person is aware of a high probabilityof the existence of such circumstance,unless the person actually believes thatsuch circumstance does not exist.

(3) (A) The term “routine governmentalaction” means only an action which isordinarily and commonly performed by aforeign official in –

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(i) obtaining permits, licenses, or otherofficial documents to qualify a personto do business in a foreign country; (ii) processing governmental papers,such as visas and work orders; (iii) providing police protection, mailpick-up and delivery, or schedulinginspections associated with contractperformance or inspections related totransit of goods across country; (iv) providing phone service, powerand water supply, loading and unload-ing cargo, or protecting perishableproducts or commodities from deterio-ration; or (v) actions of a similar nature.

(B) The term “routine governmentalaction” does not include any decision bya foreign official whether, or on whatterms, to award new business to or tocontinue business with a particular party,or any action taken by a foreign officialinvolved in the decision-making processto encourage a decision to award newbusiness to or continue business with aparticular party.

(g) Alternative Jurisdiction (1) It shall also be unlawful for any issuerorganised under the laws of the UnitedStates, or a State, territory, possession, orcommonwealth of the United States or apolitical subdivision thereof and which hasa class of securities registered pursuant tosection 12 of this title or which is requiredto file reports under section 15(d) of thistitle, or for any United States person that isan officer, director, employee, or agent ofsuch issuer or a stockholder thereof actingon behalf of such issuer, to corruptly do anyact outside the United States in furtheranceof an offer, payment, promise to pay, orauthorisation of the payment of any money,or offer, gift, promise to give, or authorisa-tion of the giving of anything of value toany of the persons or entities set forth inparagraphs (1), (2), and (3) of this subsec-tion (a) of this section for the purposes setforth therein, irrespective of whether suchissuer or such officer, director, employee,agent, or stockholder makes use of the mailsor any means or instrumentality of interstatecommerce in furtherance of such offer, gift,

payment, promise, or authorisation. (2) As used in this subsection, the term“United States person” means a national ofthe United States (as defined in section 101of the Immigration and Nationality Act (8U.S.C. §§ 1101)) or any corporation, part-nership, association, joint-stock company,business trust, unincorporated organisation,or sole proprietorship organised under thelaws of the United States or any State, terri-tory, possession, or commonwealth of theUnited States, or any political subdivisionthereof.

§§ 78dd-2. Prohibited foreign trade practicesby domestic concerns (a) Prohibition It shall be unlawful for any domestic concern,other than an issuer which is subject to section78dd-1 of this title, or for any officer, director,employee, or agent of such domestic concern orany stockholder thereof acting on behalf ofsuch domestic concern, to make use of themails or any means or instrumentality of inter-state commerce corruptly in furtherance of anoffer, payment, promise to pay, or authorisationof the payment of any money, or offer, gift,promise to give, or authorisation of the givingof anything of value to –

(1) any foreign official for purposes of – (A) (i) influencing any act or decision ofsuch foreign official in his official capaci-ty, (ii) inducing such foreign official to door omit to do any act in violation of thelawful duty of such official, or (iii) secur-ing any improper advantage; or (B) inducing such foreign official to usehis influence with a foreign governmentor instrumentality thereof to affect orinfluence any act or decision of such gov-ernment or instrumentality,

in order to assist such domestic concern inobtaining or retaining business for or with,or directing business to, any person; (2) any foreign political party or officialthereof or any candidate for foreign politicaloffice for purposes of –

(A) (i) influencing any act or decision ofsuch party, official, or candidate in its orhis official capacity, (ii) inducing suchparty, official, or candidate to do or omitto do an act in violation of the lawful dutyof such party, official, or candidate, or

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(iii) securing any improper advantage; or (B) inducing such party, official, or can-didate to use its or his influence with aforeign government or instrumentalitythereof to affect or influence any act ordecision of such government or instru-mentality,

in order to assist such domestic concern inobtaining or retaining business for or with,or directing business to, any person; (3) any person, while knowing that all or aportion of such money or thing of value willbe offered, given, or promised, directly orindirectly, to any foreign official, to anyforeign political party or official thereof, orto any candidate for foreign political office,for purposes of –

(A) (i) influencing any act or decision ofsuch foreign official, political party, partyofficial, or candidate in his or its officialcapacity, (ii) inducing such foreign offi-cial, political party, party official, or can-didate to do or omit to do any act in viola-tion of the lawful duty of such foreignofficial, political party, party official, orcandidate, or (iii) securing any improperadvantage; or (B) inducing such foreign official, politi-cal party, party official, or candidate touse his or its influence with a foreigngovernment or instrumentality thereof toaffect or influence any act or decision ofsuch government or instrumentality,

in order to assist such domestic concern inobtaining or retaining business for or with,or directing business to, any person.

(b) Exception for routine governmental action Subsections (a) and (i) of this section shall notapply to any facilitating or expediting paymentto a foreign official, political party, or partyofficial the purpose of which is to expedite orto secure the performance of a routine govern-mental action by a foreign official, politicalparty, or party official.

(c) Affirmative defenses It shall be an affirmative defense to actionsunder subsection (a) or (i) of this section that –

(1) the payment, gift, offer, or promise ofanything of value that was made, was law-ful under the written laws and regulations ofthe foreign official’s, political party’s, party

official’s, or candidate’s country; or (2) the payment, gift, offer, or promise ofanything of value that was made, was a rea-sonable and bona fide expenditure, such astravel and lodging expenses, incurred by oron behalf of a foreign official, party, partyofficial, or candidate and was directly relat-ed to –

(A) the promotion, demonstration, orexplanation of products or services; or (B) the execution or performance of acontract with a foreign government oragency thereof.

(d) Injunctive relief (1) When it appears to the Attorney Generalthat any domestic concern to which this sec-tion applies, or officer, director, employee,agent, or stockholder thereof, is engaged, orabout to engage, in any act or practice con-stituting a violation of subsection (a) or (i)of this section, the Attorney General may,in his discretion, bring a civil action in anappropriate district court of the UnitedStates to enjoin such act or practice, andupon a proper showing, a permanent injunc-tion or a temporary restraining order shallbe granted without bond. (2) For the purpose of any civil investiga-tion which, in the opinion of the AttorneyGeneral, is necessary and proper to enforcethis section, the Attorney General or hisdesignee are empowered to administer oathsand affirmations, subpoena witnesses, takeevidence, and require the production of anybooks, papers, or other documents whichthe Attorney General deems relevant ormaterial to such investigation. The atten-dance of witnesses and the production ofdocumentary evidence may be requiredfrom any place in the United States, or anyterritory, possession, or commonwealth ofthe United States, at any designated place ofhearing. (3) In case of contumacy by, or refusal toobey a subpoena issued to, any person, theAttorney General may invoke the aid of anycourt of the United States within the juris-diction of which such investigation or pro-ceeding is carried on, or where such personresides or carries on business, in requiringthe attendance and testimony of witnessesand the production of books, papers, or

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other documents. Any such court may issuean order requiring such person to appearbefore the Attorney General or his designee,there to produce records, if so ordered, or togive testimony touching the matter underinvestigation. Any failure to obey suchorder of the court may be punished by suchcourt as a contempt thereof.

All process in any such case may be served inthe judicial district in which such personresides or may be found. The Attorney Generalmay make such rules relating to civil investiga-tions as may be necessary or appropriate toimplement the provisions of this subsection.

(e) Guidelines by Attorney General Not later than 6 months after August 23, 1988,the Attorney General, after consultation with theSecurities and Exchange Commission, theSecretary of Commerce, the United States TradeRepresentative, the Secretary of State, and theSecretary of the Treasury, and after obtainingthe views of all interested persons through pub-lic notice and comment procedures, shall deter-mine to what extent compliance with this sec-tion would be enhanced and the business com-munity would be assisted by further clarificationof the preceding provisions of this section andmay, based on such determination and to theextent necessary and appropriate, issue –

(1) guidelines describing specific types ofconduct, associated with common types ofexport sales arrangements and business contracts, which for purposes of the Department of Justice’s present enforce-ment policy, the Attorney General deter-mines would be in conformance with thepreceding provisions of this section; and (2) general precautionary procedures whichdomestic concerns may use on a voluntarybasis to conform their conduct to theDepartment of Justice’s present enforce-ment policy regarding the preceding provi-sions of this section.

The Attorney General shall issue the guidelinesand procedures referred to in the preceding sen-tence in accordance with the provisions of sub-chapter II of chapter 5 of Title 5 and thoseguidelines and procedures shall be subject tothe provisions of chapter 7 of that title.

(f) Opinions of Attorney General (1) The Attorney General, after consultation

with appropriate departments and agenciesof the United States and after obtaining theviews of all interested persons through pub-lic notice and comment procedures, shallestablish a procedure to provide responsesto specific inquiries by domestic concernsconcerning conformance of their conductwith the Department of Justice’s presentenforcement policy regarding the precedingprovisions of this section. The AttorneyGeneral shall, within 30 days after receivingsuch a request, issue an opinion in responseto that request. The opinion shall statewhether or not certain specified prospectiveconduct would, for purposes of theDepartment of Justice’s present enforce-ment policy, violate the preceding provi-sions of this section. Additional requests foropinions may be filed with the AttorneyGeneral regarding other specified prospec-tive conduct that is beyond the scope ofconduct specified in previous requests. Inany action brought under the applicable pro-visions of this section, there shall be arebuttable presumption that conduct, whichis specified in a request by a domestic con-cern and for which the Attorney Generalhas issued an opinion that such conduct is inconformity with the Department of Justice’spresent enforcement policy, is in compli-ance with the preceding provisions of thissection. Such a presumption may berebutted by a preponderance of the evi-dence. In considering the presumption forpurposes of this paragraph, a court shallweigh all relevant factors, including but notlimited to whether the information submit-ted to the Attorney General was accurateand complete and whether it was within thescope of the conduct specified in anyrequest received by the Attorney General.The Attorney General shall establish theprocedure required by this paragraph inaccordance with the provisions of subchap-ter II of chapter 5 of Title 5 and that proce-dure shall be subject to the provisions ofchapter 7 of that title. (2) Any document or other material whichis provided to, received by, or prepared inthe Department of Justice or any otherdepartment or agency of the United Statesin connection with a request by a domesticconcern under the procedure established

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under paragraph (1), shall be exempt fromdisclosure under section 552 of Title 5 andshall not, except with the consent of thedomestic concern, be made publicly avail-able, regardless of whether the AttorneyGeneral responds to such a request or thedomestic concern withdraws such requestbefore receiving a response. (3) Any domestic concern who has made arequest to the Attorney General under para-graph (1) may withdraw such request priorto the time the Attorney General issues anopinion in response to such request. Anyrequest so withdrawn shall have no force oreffect. (4) The Attorney General shall, to the maxi-mum extent practicable, provide timelyguidance concerning the Department ofJustice’s present enforcement policy withrespect to the preceding provisions of thissection to potential exporters and smallbusinesses that are unable to obtain spe-cialised counsel on issues pertaining to suchprovisions. Such guidance shall be limitedto responses to requests under paragraph (1)concerning conformity of specified prospec-tive conduct with the Department ofJustice’s present enforcement policy regard-ing the preceding provisions of this sectionand general explanations of complianceresponsibilities and of potential liabilitiesunder the preceding provisions of this sec-tion.

(g) Penalties (1) (A) Any domestic concern that is not a

natural person and that violates subsec-tion (a) or (i) of this section shall be finednot more than $2,000,000. (B) Any domestic concern that is not anatural person and that violates subsec-tion (a) or (i) of this section shall be sub-ject to a civil penalty of not more than$10,000 imposed in an action brought bythe Attorney General.

(2) (A) Any natural person that is an officer,director, employee, or agent of a domesticconcern, or stockholder acting on behalfof such domestic concern, who willfullyviolates subsection (a) or (i) of this sec-tion shall be fined not more than$100,000 or imprisoned not more than 5years, or both.

(B) Any natural person that is an officer,director, employee, or agent of a domesticconcern, or stockholder acting on behalfof such domestic concern, who violatessubsection (a) or (i) of this section shallbe subject to a civil penalty of not morethan $10,000 imposed in an actionbrought by the Attorney General.

(3) Whenever a fine is imposed under para-graph (2) upon any officer, director, em-ployee, agent, or stockholder of a domesticconcern, such fine may not be paid, directlyor indirectly, by such domestic concern.

(h) Definitions For purposes of this section:

(1) The term “domestic concern” means – (A) any individual who is a citizen,national, or resident of the United States;and (B) any corporation, partnership, associa-tion, joint-stock company, business trust,unincorporated organisation, or sole pro-prietorship which has its principal placeof business in the United States, or whichis organised under the laws of a State ofthe United States or a territory, posses-sion, or commonwealth of the UnitedStates.

(2) (A) The term “foreign official” meansany officer or employee of a foreign gov-ernment or any department, agency, orinstrumentality thereof, or of a publicinternational organisation, or any personacting in an official capacity for or onbehalf of any such government or depart-ment, agency, or instrumentality, or for oron behalf of any such public internationalorganisation. (B) For purposes of subparagraph (A), theterm “public international organisation”means –

(i) an organisation that has been desig-nated by Executive order pursuant toSection 1 of the InternationalOrganisations Immunities Act (22U.S.C. §§ 288); or (ii) any other international organisationthat is designated by the President byExecutive order for the purposes of thissection, effective as of the date of pub-lication of such order in the FederalRegister.

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(3) (A) A person’s state of mind is “know-ing” with respect to conduct, a circum-stance, or a result if –

(i) such person is aware that such per-son is engaging in such conduct, thatsuch circumstance exists, or that suchresult is substantially certain to occur;or (ii) such person has a firm belief thatsuch circumstance exists or that suchresult is substantially certain to occur.

(B) When knowledge of the existence ofa particular circumstance is required foran offense, such knowledge is establishedif a person is aware of a high probabilityof the existence of such circumstance,unless the person actually believes thatsuch circumstance does not exist.

(4) (A) The term “routine governmentalaction” means only an action which isordinarily and commonly performed by aforeign official in –

(i) obtaining permits, licenses, or otherofficial documents to qualify a personto do business in a foreign country; (ii) processing governmental papers,such as visas and work orders; (iii) providing police protection, mailpick-up and delivery, or schedulinginspections associated with contractperformance or inspections related totransit of goods across country; (iv) providing phone service, powerand water supply, loading and unload-ing cargo, or protecting perishableproducts or commodities from deterio-ration; or (v) actions of a similar nature.

(B) The term “routine governmentalaction” does not include any decision bya foreign official whether, or on whatterms, to award new business to or tocontinue business with a particular party,or any action taken by a foreign officialinvolved in the decision-making processto encourage a decision to award newbusiness to or continue business with aparticular party.

(5) The term “interstate commerce” meanstrade, commerce, transportation, or commu-nication among the several States, orbetween any foreign country and any Stateor between any State and any place or ship

outside thereof, and such term includes theintrastate use of –

(A) a telephone or other interstate meansof communication, or (B) any other interstate instrumentality.

(i) Alternative jurisdiction (1) It shall also be unlawful for any UnitedStates person to corruptly do any act outsidethe United States in furtherance of an offer,payment, promise to pay, or authorisation ofthe payment of any money, or offer, gift,promise to give, or authorisation of the giv-ing of anything of value to any of the per-sons or entities set forth in paragraphs (1),(2), and (3) of subsection (a), for the pur-poses set forth therein, irrespective ofwhether such United States person makesuse of the mails or any means or instrumen-tality of interstate commerce in furtheranceof such offer, gift, payment, promise, orauthorisation. (2) As used in this subsection, a “UnitedStates person” means a national of theUnited States (as defined in section 101 ofthe Immigration and Nationality Act (8U.S.C. §§ 1101)) or any corporation, part-nership, association, joint-stock company,business trust, unincorporated organisation,or sole proprietorship organised under thelaws of the United States or any State, terri-tory, possession, or commonwealth of theUnited States, or any political subdivisionthereof.

§§ 78dd-3. Prohibited foreign trade practicesby persons other than issuers or domesticconcerns (a) Prohibition It shall be unlawful for any person other thanan issuer that is subject to section 30A of theSecurities Exchange Act of 1934 or a domesticconcern, as defined in section 104 of this Act,or for any officer, director, employee, or agentof such person or any stockholder thereof act-ing on behalf of such person, while in the terri-tory of the United States, corruptly to make useof the mails or any means or instrumentality ofinterstate commerce or to do any other act infurtherance of an offer, payment, promise topay, or authorisation of the payment of anymoney, or offer, gift, promise to give, or autho-risation of the giving of anything of value to –

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(1) any foreign official for purposes of – (A) (i) influencing any act or decision ofsuch foreign official in his official capaci-ty, (ii) inducing such foreign official to door omit to do any act in violation of thelawful duty of such official, or (iii) secur-ing any improper advantage; or (B) inducing such foreign official to usehis influence with a foreign governmentor instrumentality thereof to affect orinfluence any act or decision of such gov-ernment or instrumentality,

in order to assist such person in obtaining orretaining business for or with, or directingbusiness to, any person; (2) any foreign political party or officialthereof or any candidate for foreign politicaloffice for purposes of –

(A) (i) influencing any act or decision ofsuch party, official, or candidate in its orhis official capacity, (ii) inducing suchparty, official, or candidate to do or omitto do an act in violation of the lawful dutyof such party, official, or candidate, or(iii) securing any improper advantage; or (B) inducing such party, official, or can-didate to use its or his influence with aforeign government or instrumentalitythereof to affect or influence any act ordecision of such government or instru-mentality,

in order to assist such person in obtaining orretaining business for or with, or directingbusiness to, any person; or (3) any person, while knowing that all or aportion of such money or thing of value willbe offered, given, or promised, directly orindirectly, to any foreign official, to anyforeign political party or official thereof, orto any candidate for foreign political office,for purposes of –

(A) (i) influencing any act or decision ofsuch foreign official, political party, partyofficial, or candidate in his or its officialcapacity, (ii) inducing such foreign offi-cial, political party, party official, or can-didate to do or omit to do any act in viola-tion of the lawful duty of such foreignofficial, political party, party official, orcandidate, or (iii) securing any improperadvantage; or (B) inducing such foreign official, politi-cal party, party official, or candidate to

use his or its influence with a foreigngovernment or instrumentality thereof toaffect or influence any act or decision ofsuch government or instrumentality,

in order to assist such person in obtaining orretaining business for or with, or directingbusiness to, any person.

(b) Exception for routine governmental action Subsection (a) of this section shall not apply toany facilitating or expediting payment to a for-eign official, political party, or party official thepurpose of which is to expedite or to secure theperformance of a routine governmental actionby a foreign official, political party, or partyofficial.

(c) Affirmative defenses It shall be an affirmative defense to actionsunder subsection (a) of this section that –

(1) the payment, gift, offer, or promise ofanything of value that was made, was law-ful under the written laws and regulations ofthe foreign official’s, political party’s, partyofficial’s, or candidate’s country; or (2) the payment, gift, offer, or promise ofanything of value that was made, was a rea-sonable and bona fide expenditure, such astravel and lodging expenses, incurred by oron behalf of a foreign official, party, partyofficial, or candidate and was directly relat-ed to –

(A) the promotion, demonstration, orexplanation of products or services; or (B) the execution or performance of acontract with a foreign government oragency thereof.

(d) Injunctive relief (1) When it appears to the Attorney Generalthat any person to which this sectionapplies, or officer, director, employee,agent, or stockholder thereof, is engaged, orabout to engage, in any act or practice con-stituting a violation of subsection (a) of thissection, the Attorney General may, in hisdiscretion, bring a civil action in an appro-priate district court of the United States toenjoin such act or practice, and upon aproper showing, a permanent injunction or atemporary restraining order shall be grantedwithout bond. (2) For the purpose of any civil investiga-

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tion which, in the opinion of the AttorneyGeneral, is necessary and proper to enforcethis section, the Attorney General or hisdesignee are empowered to administer oathsand affirmations, subpoena witnesses, takeevidence, and require the production of anybooks, papers, or other documents whichthe Attorney General deems relevant ormaterial to such investigation. The atten-dance of witnesses and the production ofdocumentary evidence may be requiredfrom any place in the United States, or anyterritory, possession, or commonwealth ofthe United States, at any designated place ofhearing. (3) In case of contumacy by, or refusal toobey a subpoena issued to, any person, theAttorney General may invoke the aid of anycourt of the United States within the juris-diction of which such investigation or pro-ceeding is carried on, or where such personresides or carries on business, in requiringthe attendance and testimony of witnessesand the production of books, papers, orother documents. Any such court may issuean order requiring such person to appearbefore the Attorney General or his designee,there to produce records, if so ordered, or togive testimony touching the matter underinvestigation. Any failure to obey suchorder of the court may be punished by suchcourt as a contempt thereof. (4) All process in any such case may beserved in the judicial district in which suchperson resides or may be found. TheAttorney General may make such rulesrelating to civil investigations as may benecessary or appropriate to implement theprovisions of this subsection.

(e) Penalties (1) (A) Any juridical person that violates sub-

section (a) of this section shall be finednot more than $2,000,000. (B) Any juridical person that violates sub-section (a) of this section shall be subjectto a civil penalty of not more than$10,000 imposed in an action brought bythe Attorney General.

(2) (A) Any natural person who willfully vio-lates subsection (a) of this section shall befined not more than $100,000 or impris-oned not more than 5 years, or both.

(B) Any natural person who violates sub-section (a) of this section shall be subjectto a civil penalty of not more than$10,000 imposed in an action brought bythe Attorney General.

(3) Whenever a fine is imposed under para-graph (2) upon any officer, director,employee, agent, or stockholder of a person,such fine may not be paid, directly or indi-rectly, by such person.

(f) Definitions For purposes of this section:

(1) The term “person,” when referring to anoffender, means any natural person otherthan a national of the United States (asdefined in 8 U.S.C. §§ 1101) or any corporation, partnership, association,joint-stock company, business trust, unincorporated organisation, or sole pro-prietorship organised under the law of aforeign nation or a political subdivisionthereof.

(2) (A) The term “foreign official” means anyofficer or employee of a foreign govern-ment or any department, agency, orinstrumentality thereof, or of a publicinternational organisation, or any personacting in an official capacity for or onbehalf of any such government or depart-ment, agency, or instrumentality, or for oron behalf of any such public internationalorganisation. (B) For purposes of subparagraph (A), theterm “public international organisation”means –

(i) an organisation that has been desig-nated by Executive Order pursuant toSection 1 of the InternationalOrganisations Immunities Act (22U.S.C. §§ 288); or (ii) any other international organisationthat is designated by the President byExecutive order for the purposes of thissection, effective as of the date of pub-lication of such order in the FederalRegister.

(3) (A) A person’s state of mind is “know-ing” with respect to conduct, a circum-stance, or a result if –

(i) such person is aware that such per-son is engaging in such conduct, thatsuch circumstance exists, or that such

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result is substantially certain to occur;or (ii) such person has a firm belief that such circumstance exists or thatsuch result is substantially certain tooccur.

(B) When knowledge of the existence ofa particular circumstance is required foran offense, such knowledge is establishedif a person is aware of a high probabilityof the existence of such circumstance,unless the person actually believes thatsuch circumstance does not exist.

(4) (A) The term “routine governmentalaction” means only an action which isordinarily and commonly performed by aforeign official in –

(i) obtaining permits, licenses, or otherofficial documents to qualify a personto do business in a foreign country; (ii) processing governmental papers,such as visas and work orders; (iii) providing police protection, mailpick-up and delivery, or schedulinginspections associated with contractperformance or inspections related totransit of goods across country; (iv) providing phone service, powerand water supply, loading and unload-ing cargo, or protecting perishableproducts or commodities from deterio-ration; or (v) actions of a similar nature.

(B) The term “routine governmentalaction” does not include any decision bya foreign official whether, or on whatterms, to award new business to or tocontinue business with a particular party,or any action taken by a foreign officialinvolved in the decision-making processto encourage a decision to award newbusiness to or continue business with aparticular party.

(5) The term “interstate commerce” meanstrade, commerce, transportation, or commu-nication among the several States, orbetween any foreign country and any Stateor between any State and any place or shipoutside thereof, and such term includes theintrastate use of –

(A) a telephone or other interstate meansof communication, or (B) any other interstate instrumentality.

§§ 78ff. Penalties (a) Willful violations; false and misleadingstatements Any person who willfully violates any provi-sion of this chapter (other than section 78dd-1of this title), or any rule or regulation thereun-der the violation of which is made unlawful orthe observance of which is required under theterms of this chapter, or any person who will-fully and knowingly makes, or causes to bemade, any statement in any application, report,or document required to be filed under thischapter or any rule or regulation thereunder orany undertaking contained in a registrationstatement as provided in subsection (d) of sec-tion 78o of this title, or by any self-regulatoryorganisation in connection with an applicationfor membership or participation therein or tobecome associated with a member thereof,which statement was false or misleading withrespect to any material fact, shall upon convic-tion be fined not more than $1,000,000, orimprisoned not more than 10 years, or both,except that when such person is a person otherthan a natural person, a fine not exceeding$2,500,000 may be imposed; but no personshall be subject to imprisonment under this sec-tion for the violation of any rule or regulation ifhe proves that he had no knowledge of suchrule or regulation.

(b) Failure to file information, documents, orreports Any issuer which fails to file information, docu-ments, or reports required to be filed under sub-section (d) of section 78o of this title or any ruleor regulation thereunder shall forfeit to theUnited States the sum of $100 for each andevery day such failure to file shall continue.Such forfeiture, which shall be in lieu of anycriminal penalty for such failure to file whichmight be deemed to arise under subsection (a) ofthis section, shall be payable into the Treasury ofthe United States and shall be recoverable in acivil suit in the name of the United States.

(c) Violations by issuers, officers, directors,stockholders, employees, or agents of issuers

(1) (A) Any issuer that violates subsection (a)or (g) of section 30A of this title shall befined not more than $2,000,000. (B) Any issuer that violates subsection (a)or (g) of section 30A of this title shall be

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subject to a civil penalty of not more than$10,000 imposed in an action brought bythe Commission.

(2) (A) Any officer, director, employee, oragent of an issuer, or stockholder actingon behalf of such issuer, who willfullyviolates subsection (a) or (g) of section30A of this title shall be fined not morethan $100,000, or imprisoned not morethan 5 years, or both. (B) Any officer, director, employee, or

agent of an issuer, or stockholder actingon behalf of such issuer, who violatessubsection (a) or (g) of section 30A ofthis title shall be subject to a civil penaltyof not more than $10,000 imposed in anaction brought by the Commission.

(3) Whenever a fine is imposed under para-graph (2) upon any officer, director,employee, agent, or stockholder of anissuer, such fine may not be paid, directly orindirectly, by such issuer.

PreambleThe Parties,Considering that bribery is a widespread phe-nomenon in international business transactions,including trade and investment, which raisesserious moral and political concerns, under-mines good governance and economic develop-ment, and distorts international competitiveconditions;

Considering that all countries share a respon-sibility to combat bribery in international busi-ness transactions;

Having regard to the Revised Recommen-dation on Combating Bribery in InternationalBusiness Transactions, adopted by the Councilof the Organisation for Economic Cooperationand Development (OECD) on 23 May 1997,C(97)123/FINAL, which, inter alia, called for

effective measures to deter, prevent and combatthe bribery of foreign public officials in con-nection with international business transactions,in particular the prompt criminalisation of suchbribery in an effective and coordinated mannerand in conformity with the agreed common ele-ments set out in that Recommendation and withthe jurisdictional and other basic legal princi-ples of each country;

Welcoming other recent developments whichfurther advance international understanding andcooperation in combating bribery of public offi-cials, including actions of the United Nations,the World Bank, the International MonetaryFund, the World Trade Organisation, theOrganisation of American States, the Councilof Europe and the European Union;

Welcoming the efforts of companies, busi-

ANNEX V: ORGANISATION FOR ECONOMIC COOPERATION AND DEVELOPMENT CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS

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ness organisations and trade unions as well asother non-governmental organisations to com-bat bribery;

Recognising the role of governments in theprevention of solicitation of bribes from indi-viduals and enterprises in international businesstransactions;

Recognising that achieving progress in thisfield requires not only efforts on a nationallevel but also multilateral cooperation, monitor-ing and follow-up;

Recognising that achieving equivalenceamong the measures to be taken by the Partiesis an essential object and purpose of the Con-vention, which requires that the Convention beratified without derogations affecting thisequivalence;

Have agreed as follows:

Article 1 – The Offence of Bribery ofForeign Public Officials 1. Each Party shall take such measures as may

be necessary to establish that it is a criminaloffence under its law for any person inten-tionally to offer, promise or give any unduepecuniary or other advantage, whetherdirectly or through intermediaries, to a for-eign public official, for that official or for athird party, in order that the official act orrefrain from acting in relation to the perfor-mance of official duties, in order to obtainor retain business or other improper advan-tage in the conduct of international busi-ness.

2. Each Party shall take any measures neces-sary to establish that complicity in, includ-ing incitement, aiding and abetting, orauthorisation of an act of bribery of a for-eign public official shall be a criminaloffence. Attempt and conspiracy to bribe aforeign public official shall be criminaloffences to the same extent as attempt andconspiracy to bribe a public official of thatParty.

3. The offences set out in paragraphs 1 and 2above are hereinafter referred to as “briberyof a foreign public official”.

4. For the purpose of this Convention: a. “foreign public official” means anyperson holding a legislative, administra-tive or judicial office of a foreign country,whether appointed or elected; any personexercising a public function for a foreign

country, including for a public agency orpublic enterprise; and any official oragent of a public international organisa-tion; b. “foreign country” includes all levelsand subdivisions of government, fromnational to local; c. “act or refrain from acting in relation tothe performance of official duties”includes any use of the public official’sposition, whether or not within the offi-cial’s authorised competence.

Article 2 – Responsibility of Legal Persons Each Party shall take such measures as may benecessary, in accordance with its legal princi-ples, to establish the liability of legal personsfor the bribery of a foreign public official.

Article 3 – Sanctions 1. The bribery of a foreign public official shall

be punishable by effective, proportionateand dissuasive criminal penalties. The rangeof penalties shall be comparable to thatapplicable to the bribery of the Party’s ownpublic officials and shall, in the case of nat-ural persons, include deprivation of libertysufficient to enable effective mutual legalassistance and extradition.

2. In the event that, under the legal system of aParty, criminal responsibility is not applica-ble to legal persons, that Party shall ensurethat legal persons shall be subject to effec-tive, proportionate and dissuasive non-crim-inal sanctions, including monetary sanc-tions, for bribery of foreign public officials.

3. Each Party shall take such measures as maybe necessary to provide that the bribe andthe proceeds of the bribery of a foreign pub-lic official, or property the value of whichcorresponds to that of such proceeds, aresubject to seizure and confiscation or thatmonetary sanctions of comparable effect areapplicable.

4. Each Party shall consider the imposition ofadditional civil or administrative sanctionsupon a person subject to sanctions for thebribery of a foreign public official.

Article 4 – Jurisdiction 1. Each Party shall take such measures as may

be necessary to establish its jurisdictionover the bribery of a foreign public official

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when the offence is committed in whole orin part in its territory.

2. Each Party which has jurisdiction to prose-cute its nationals for offences committedabroad shall take such measures as may benecessary to establish its jurisdiction to doso in respect of the bribery of a foreign pub-lic official, according to the same princi-ples.

3. When more than one Party has jurisdictionover an alleged offence described in thisConvention, the Parties involved shall, atthe request of one of them, consult with aview to determining the most appropriatejurisdiction for prosecution.

4. Each Party shall review whether its currentbasis for jurisdiction is effective in the fightagainst the bribery of foreign public offi-cials and, if it is not, shall take remedialsteps.

Article 5 – Enforcement Investigation and prosecution of the bribery ofa foreign public official shall be subject to theapplicable rules and principles of each Party.They shall not be influenced by considerationsof national economic interest, the potentialeffect upon relations with another State or theidentity of the natural or legal persons involved.

Article 6 – Statute of Limitations Any statute of limitations applicable to theoffence of bribery of a foreign public officialshall allow an adequate period of time for theinvestigation and prosecution of this offence.

Article 7 – Money Laundering Each Party which has made bribery of its ownpublic official a predicate offence for the pur-pose of the application of its money launderinglegislation shall do so on the same terms for thebribery of a foreign public official, withoutregard to the place where the bribery occurred.

Article 8 – Accounting 1. In order to combat bribery of foreign public

officials effectively, each Party shall takesuch measures as may be necessary, withinthe framework of its laws and regulationsregarding the maintenance of books andrecords, financial statement disclosures, andaccounting and auditing standards, to pro-hibit the establishment of off-the-books

accounts, the making of off-the-books orinadequately identified transactions, therecording of non-existent expenditures, theentry of liabilities with incorrect identifica-tion of their object, as well as the use offalse documents, by companies subject tothose laws and regulations, for the purposeof bribing foreign public officials or of hid-ing such bribery.

2. Each Party shall provide effective, propor-tionate and dissuasive civil, administrativeor criminal penalties for such omissions andfalsifications in respect of the books,records, accounts and financial statementsof such companies.

Article 9 – Mutual Legal Assistance 1. Each Party shall, to the fullest extent possi-

ble under its laws and relevant treaties andarrangements, provide prompt and effectivelegal assistance to another Party for the pur-pose of criminal investigations and proceed-ings brought by a Party concerning offenceswithin the scope of this Convention and fornon-criminal proceedings within the scopeof this Convention brought by a Partyagainst a legal person. The requested Partyshall inform the requesting Party, withoutdelay, of any additional information or doc-uments needed to support the request forassistance and, where requested, of the sta-tus and outcome of the request for assis-tance.

2. Where a Party makes mutual legal assis-tance conditional upon the existence of dualcriminality, dual criminality shall bedeemed to exist if the offence for which theassistance is sought is within the scope ofthis Convention.

3. A Party shall not decline to render mutuallegal assistance for criminal matters withinthe scope of this Convention on the groundof bank secrecy.

Article 10 – Extradition 1. Bribery of a foreign public official shall be

deemed to be included as an extraditableoffence under the laws of the Parties and theextradition treaties between them.

2. If a Party which makes extradition condi-tional on the existence of an extraditiontreaty receives a request for extraditionfrom another Party with which it has no

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extradition treaty, it may consider thisConvention to be the legal basis for extradi-tion in respect of the offence of bribery of aforeign public official.

3. Each Party shall take any measures neces-sary to assure either that it can extradite itsnationals or that it can prosecute its nation-als for the offence of bribery of a foreignpublic official. A Party which declines arequest to extradite a person for bribery of aforeign public official solely on the groundthat the person is its national shall submitthe case to its competent authorities for thepurpose of prosecution.

4. Extradition for bribery of a foreign publicofficial is subject to the conditions set out inthe domestic law and applicable treaties andarrangements of each Party. Where a Partymakes extradition conditional upon theexistence of dual criminality, that conditionshall be deemed to be fulfilled if the offencefor which extradition is sought is within thescope of Article 1 of this Convention.

Article 11 – Responsible Authorities For the purposes of Article 4, paragraph 3, onconsultation, Article 9, on mutual legal assis-tance and Article 10, on extradition, each Partyshall notify to the Secretary-General of theOECD an authority or authorities responsiblefor making and receiving requests, which shallserve as channel of communication for thesematters for that Party, without prejudice toother arrangements between Parties.

Article 12 – Monitoring and Follow-Up The Parties shall cooperate in carrying out aprogramme of systematic follow-up to monitorand promote the full implementation of thisConvention. Unless otherwise decided by con-sensus of the Parties, this shall be done in theframework of the OECD Working Group onBribery in International Business Transactionsand according to its terms of reference, or with-in the framework and terms of reference of anysuccessor to its functions, and Parties shall bearthe costs of the programme in accordance withthe rules applicable to that body.

Article 13 – Signature and Accession 1. Until its entry into force, this Convention

shall be open for signature by OECD mem-bers and by non-members which have been

invited to become full participants in itsWorking Group on Bribery in InternationalBusiness Transactions.

2. Subsequent to its entry into force, thisConvention shall be open to accession byany non-signatory which is a member of theOECD or has become a full participant inthe Working Group on Bribery in Inter-national Business Transactions or any suc-cessor to its functions. For each such non-signatory, the Convention shall enter intoforce on the sixtieth day following the dateof deposit of its instrument of accession.

Article 14 – Ratification and Depositary 1. This Convention is subject to acceptance,

approval or ratification by the Signatories,in accordance with their respective laws.

2. Instruments of acceptance, approval, ratifi-cation or accession shall be deposited withthe Secretary-General of the OECD, whoshall serve as Depositary of thisConvention.

Article 15 – Entry into Force 1. This Convention shall enter into force on

the sixtieth day following the date uponwhich five of the ten countries which havethe ten largest export shares (see annex),and which represent by themselves at leastsixty per cent of the combined total exportsof those ten countries, have deposited theirinstruments of acceptance, approval, or rati-fication. For each signatory depositing itsinstrument after such entry into force, theConvention shall enter into force on the six-tieth day after deposit of its instrument.

2. If, after 31 December 1998, the Conventionhas not entered into force under paragraph 1above, any signatory which has depositedits instrument of acceptance, approval orratification may declare in writing to theDepositary its readiness to accept entry intoforce of this Convention under this para-graph 2. The Convention shall enter intoforce for such a signatory on the sixtiethday following the date upon which suchdeclarations have been deposited by at leasttwo signatories. For each signatory deposit-ing its declaration after such entry intoforce, the Convention shall enter into forceon the sixtieth day following the date ofdeposit.

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Article 16 – Amendment Any Party may propose the amendment of thisConvention. A proposed amendment shall besubmitted to the Depositary which shall com-municate it to the other Parties at least sixtydays before convening a meeting of the Partiesto consider the proposed amendment. Anamendment adopted by consensus of theParties, or by such other means as the Partiesmay determine by consensus, shall enter intoforce sixty days after the deposit of an instru-ment of ratification, acceptance or approval byall of the Parties, or in such other circumstances

as may be specified by the Parties at the time ofadoption of the amendment.

Article 17 – Withdrawal A Party may withdraw from this Convention bysubmitting written notification to the Deposit-ary. Such withdrawal shall be effective oneyear after the date of the receipt of the notifica-tion. After withdrawal, cooperation shall con-tinue between the Parties and the Party whichhas withdrawn on all requests for assistance orextradition made before the effective date ofwithdrawal which remain pending.

The Convention was adopted 21 November1997, by all OECD member countries(Australia, Austria, Belgium, Canada, CzechRepublic, Denmark, Finland, France,Germany, Greece, Hungary, Iceland, Ireland,Italy, Japan, Korea, Luxembourg, Mexico, theNetherlands, New Zealand, Norway, Poland,Portugal, Spain, Sweden, Switzerland, Turkey,United Kingdom, United States) and five non-member countries (Argentina, Brazil, Bulgaria,Chile and the Slovak Republic). Signature ofthe Convention took place in Paris on 17December 1997. The signatories have sincethen began implementing the Convention bypassing the required national legislation andmaking amendments to their national criminaljustice laws and Penal Codes.

A set of official commentaries was alsoissued by the OECD in regard to theConvention and is reproduced hereafter:

Commentaries on the Convention onCombating Bribery of Officials inInternational Business Transactions.Adopted by the Negotiating Conference on21 November 1997

GeneralThis Convention deals with what, in the law ofsome countries, is called “active corruption” or“active bribery”, meaning the offence commit-

ted by the person who promises or gives thebribe, as contrasted with “passive bribery”, theoffence committed by the official who receivesthe bribe. The Convention does not utilise theterm “active bribery” simply to avoid it beingmisread by the non-technical reader as imply-ing that the briber has taken the initiative andthe recipient is a passive victim. In fact, in anumber of situations, the recipient will haveinduced or pressured the briber and will havebeen, in that sense, the more active.

This Convention seeks to assure a functionalequivalence among the measures taken by theParties to sanction bribery of foreign publicofficials, without requiring uniformity orchanges in fundamental principles of a Party’slegal system.

Article 1. The Offence of Bribery of ForeignPublic OfficialsRe paragraph 1: Article 1 establishes a standard to be met byParties, but does not require them to utilise itsprecise terms in defining the offence undertheir domestic laws. A Party may use variousapproaches to fulfil its obligations, providedthat conviction of a person for the offence doesnot require proof of elements beyond thosewhich would be required to be proved if theoffence were defined as in this paragraph. Forexample, a statute prohibiting the bribery of

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agents generally which does not specificallyaddress bribery of a foreign public official, anda statute specifically limited to this case, couldboth comply with this Article. Similarly, astatute which defined the offence in terms ofpayments “to induce a breach of the official’sduty” could meet the standard provided that itwas understood that every public official had aduty to exercise judgement or discretion impar-tially and this was an “autonomous” definitionnot requiring proof of the law of the particularofficial’s country.

It is an offence within the meaning of para-graph 1 to bribe to obtain or retain business orother improper advantage whether or not thecompany concerned was the best qualified bid-der or was otherwise a company which couldproperly have been awarded the business.

“Other improper advantage” refers to some-thing to which the company concerned was notclearly entitled, for example, an operating per-mit for a factory which fails to meet the statuto-ry requirements.

The conduct described in paragraph 1 is anoffence whether the offer or promise is made orthe pecuniary or other advantage is given onthat person’s own behalf or on behalf of anyother natural person or legal entity.

It is also an offence irrespective of, inter alia,the value of the advantage, its results, percep-tions of local custom, the tolerance of such pay-ments by local authorities, or the alleged neces-sity of the payment in order to obtain or retainbusiness or other improper advantage.

It is not an offence, however, if the advantagewas permitted or required by the written law orregulation of the foreign public official’s coun-try, including case law.

Small “facilitation” payments do not consti-tute payments made “to obtain or retain busi-ness or other improper advantage” within themeaning of paragraph 1 and, accordingly, arealso not an offence. Such payments, which, insome countries, are made to induce public offi-cials to perform their functions, such as issuinglicenses or permits, are generally illegal in theforeign country concerned. Other countries canand should address this corrosive phenomenonby such means as support for programmes ofgood governance. However, criminalisation byother countries does not seem a practical oreffective complementary action.

Under the legal system of some countries, an

advantage promised or given to any person, inanticipation of his or her becoming a foreignpublic official, falls within the scope of theoffences described in Article 1, paragraph 1 or2. Under the legal system of many countries, itis considered technically distinct from theoffences covered by the present Convention.However, there is a commonly shared concernand intent to address this phenomenon throughfurther work.

Re paragraph 2: The offences set out in paragraph 2 are under-stood in terms of their normal content in nation-al legal systems. Accordingly, if authorisation,incitement, or one of the other listed acts,which does not lead to further action, is notitself punishable under a Party’s legal system,then the Party would not be required to make itpunishable with respect to bribery of a foreignpublic official.

Re paragraph 4: “Public function” includes any activity in thepublic interest, delegated by a foreign country,such as the performance of a task delegated byit in connection with public procurement.

13. A “public agency” is an entity constitutedunder public law to carry out specific tasks inthe public interest.

A “public enterprise” is any enterprise,regardless of its legal form, over which a gov-ernment, or governments, may, directly or indi-rectly, exercise a dominant influence. This isdeemed to be the case, inter alia, when the gov-ernment or governments hold the majority ofthe enterprise’s subscribed capital, control themajority of votes attaching to shares issued bythe enterprise or can appoint a majority of themembers of the enterprise’s administrative ormanagerial body or supervisory board.

An official of a public enterprise shall bedeemed to perform a public function unless theenterprise operates on a normal commercialbasis in the relevant market, i.e., on a basiswhich is substantially equivalent to that of aprivate enterprise, without preferential subsi-dies or other privileges.

In special circumstances, public authoritymay in fact be held by persons (e.g., politicalparty officials in single party states) not formal-ly designated as public officials. Such persons,through their de facto performance of a public

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function, may, under the legal principles ofsome countries, be considered to be foreignpublic officials.

“Public international organisation” includesany international organisation formed by states,governments, or other public internationalorganisations, whatever the form of organisationand scope of competence, including, for exam-ple, a regional economic integration organisa-tion such as the European Communities.

“Foreign country” is not limited to states, butincludes any organised foreign area or entity,such as an autonomous territory or a separatecustoms territory.

One case of bribery which has been contem-plated under the definition in paragraph 4.c iswhere an executive of a company gives a bribeto a senior official of a government, in orderthat this official use his office – though actingoutside his competence – to make another offi-cial award a contract to that company.

Article 2. Responsibility of Legal PersonsIn the event that, under the legal system of aParty, criminal responsibility is not applicableto legal persons, that Party shall not be requiredto establish such criminal responsibility.

Article 3. SanctionsRe paragraph 3: The “proceeds” of bribery are the profits orother benefits derived by the briber from thetransaction or other improper advantageobtained or retained through bribery.

The term “confiscation” includes forfeiturewhere applicable and means the permanentdeprivation of property by order of a court orother competent authority. This paragraph iswithout prejudice to rights of victims.

Paragraph 3 does not preclude setting appro-priate limits to monetary sanctions.

Re paragraph 4: Among the civil or administrative sanctions,other than non-criminal fines, which might beimposed upon legal persons for an act ofbribery of a foreign public official are: exclu-sion from entitlement to public benefits or aid;temporary or permanent disqualification fromparticipation in public procurement or from thepractice of other commercial activities; placingunder judicial supervision; and a judicial wind-ing-up order.

Article 4. JurisdictionRe paragraph 1: The territorial basis for jurisdiction should beinterpreted broadly so that an extensive physi-cal connection to the bribery act is not required.

Re paragraph 2: Nationality jurisdiction is to be establishedaccording to the general principles and condi-tions in the legal system of each Party. Theseprinciples deal with such matters as dual crimi-nality. However, the requirement of dual crimi-nality should be deemed to be met if the act isunlawful where it occurred, even if under a dif-ferent criminal statute. For countries whichapply nationality jurisdiction only to certaintypes of offences, the reference to “principles”includes the principles upon which such selec-tion is based.

Article 5. EnforcementArticle 5 recognises the fundamental nature ofnational regimes of prosecutorial discretion. Itrecognises as well that, in order to protect theindependence of prosecution, such discretion isto be exercised on the basis of professionalmotives and is not to be subject to improperinfluence by concerns of a political nature.Article 5 is complemented by paragraph 6 ofthe Annex to the 1997 OECD RevisedRecommendation on Combating Bribery inInternational Business Transactions,C(97)123/FINAL (hereinafter, “1997 OECDRecommendation”), which recommends, interalia, that complaints of bribery of foreign pub-lic officials should be seriously investigated bycompetent authorities and that adequateresources should be provided by national gov-ernments to permit effective prosecution ofsuch bribery. Parties will have accepted thisRecommendation, including its monitoring andfollow-up arrangements.

Article 7. Money LaunderingIn Article 7, “bribery of its own public official”is intended broadly, so that bribery of a foreignpublic official is to be made a predicate offencefor money laundering legislation on the sameterms, when a Party has made either active orpassive bribery of its own public official suchan offence. When a Party has made only pas-sive bribery of its own public officials a predi-cate offence for money laundering purposes,

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this article requires that the laundering of thebribe payment be subject to money launderinglegislation.

Article 8. AccountingArticle 8 is related to section V of the 1997OECD Recommendation, which all Parties willhave accepted and which is subject to follow-up in the OECD Working Group on Bribery inInternational Business Transactions. This para-graph contains a series of recommendationsconcerning accounting requirements, indepen-dent external audit and internal company con-trols the implementation of which will beimportant to the overall effectiveness of thefight against bribery in international business.However, one immediate consequence of theimplementation of this Convention by theParties will be that companies which arerequired to issue financial statements disclosingtheir material contingent liabilities will need totake into account the full potential liabilitiesunder this Convention, in particular its Articles3 and 8, as well as other losses which mightflow from conviction of the company or itsagents for bribery. This also has implicationsfor the execution of professional responsibili-ties of auditors regarding indications of briberyof foreign public officials. In addition, theaccounting offences referred to in Article 8 willgenerally occur in the company’s home coun-try, when the bribery offence itself may havebeen committed in another country, and thiscan fill gaps in the effective reach of theConvention.

Article 9. Mutual Legal AssistanceParties will have also accepted, through para-graph 8 of the Agreed Common Elementsannexed to the 1997 OECD Recommendation,to explore and undertake means to improve theefficiency of mutual legal assistance.

Re paragraph 1: Within the framework of paragraph 1 of Article9, Parties should, upon request, facilitate orencourage the presence or availability of per-sons, including persons in custody, who con-sent to assist in investigations or participate inproceedings. Parties should take measures to beable, in appropriate cases, to transfer temporari-ly such a person in custody to a Party request-ing it and to credit time in custody in the

requesting Party to the transferred person’s sen-tence in the requested Party. The Parties wish-ing to use this mechanism should also takemeasures to be able, as a requesting Party, tokeep a transferred person in custody and returnthis person without necessity of extradition pro-ceedings.

Re paragraph 2: Paragraph 2 addresses the issue of identity ofnorms in the concept of dual criminality.Parties with statutes as diverse as a statute pro-hibiting the bribery of agents generally and astatute directed specifically at bribery of for-eign public officials should be able to cooperatefully regarding cases whose facts fall within thescope of the offences described in thisConvention.

Article 10. Extradition Re paragraph 2: A Party may consider this Convention to be alegal basis for extradition if, for one or morecategories of cases falling within thisConvention, it requires an extradition treaty.For example, a country may consider it a basisfor extradition of its nationals if it requires anextradition treaty for that category but does notrequire one for extradition of non-nationals.

Article 12. Monitoring and Follow-UpThe current terms of reference of the OECDWorking Group on Bribery which are relevantto monitoring and follow-up are set out inSection VIII of the 1997 OECD Recommenda-tion. They provide for:

i) receipt of notifications and other informa-tion submitted to it by the [participating]countries; ii) regular reviews of steps taken by [partic-ipating] countries to implement theRecommendation and to make proposals, asappropriate, to assist [participating] coun-tries in its implementation; these reviewswill be based on the following complemen-tary systems:

– a system of self evaluation, where [par-ticipating] countries’ responses on thebasis of a questionnaire will provide abasis for assessing the implementation ofthe Recommendation; – a system of mutual evaluation, whereeach [participating] country will be exam-

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ined in turn by the Working Group onBribery, on the basis of a report whichwill provide an objective assessment ofthe progress of the [participating] countryin implementing the Recommendation.

iii) examination of specific issues relating tobribery in international business transac-tions; ... v) provision of regular information to thepublic on its work and activities and onimplementation of the Recommendation.

The costs of monitoring and follow-up will, forOECD Members, be handled through the nor-mal OECD budget process. For non-membersof the OECD, the current rules create an equiv-alent system of cost sharing, which is describedin the Resolution of the Council ConcerningFees for Regular Observer Countries and Non-Member Full Participants in OECD SubsidiaryBodies, C(96)223/FINAL.

The follow-up of any aspect of theConvention which is not also a follow-up of the1997 OECD Recommendation or any otherinstrument accepted by all the participants inthe OECD Working Group on Bribery will becarried out by the Parties to the Conventionand, as appropriate, the participants party toanother, corresponding instrument.

Article 13. Signature and AccessionThe Convention will be open to non-memberswhich become full participants in the OECDWorking Group on Bribery in InternationalBusiness Transactions. Full participation bynon-members in this Working Group is encour-aged and arranged under simple procedures.Accordingly, the requirement of full participa-tion in the Working Group, which follows fromthe relationship of the Convention to otheraspects of the fight against bribery in interna-tional business, should not be seen as an obsta-cle by countries wishing to participate in thatfight. The Council of the OECD has appealedto non-members to adhere to the 1997 OECDRecommendation and to participate in anyinstitutional follow-up or implementationmechanism, i.e., in the Working Group. Thecurrent procedures regarding full participationby non-members in the Working Group may befound in the Resolution of the Council concern-ing the Participation of Non-MemberEconomies in the Work of Subsidiary Bodies of

the Organisation, C(96)64/REV1/FINAL. Inaddition to accepting the Revised Recommend-ation of the Council on Combating Bribery, afull participant also accepts the Recommend-ation on the Tax Deductibility of Bribes ofForeign Public Officials, adopted on 11 April1996, C(96)27/FINAL.

Steps Taken and Planned Future Actions byeach Participating Country to Ratify andImplement the Convention on CombatingBribery of Foreign Public Officials inInternational Business Transactions(Source: http://www.oecd.org/daf/nocorruption/annex2.htm)

The following countries have deposited theirinstruments of ratification/acceptance of theConvention with the Secretary-General of theOECD:• Australia (18 October 1999) • Austria (20 May 1999) • Belgium (27 July 1999) • Bulgaria (22 December 1998) • Canada (17 December 1998) • Germany (10 November 1998) • Greece (5 February 1999) • Finland (10 December 1998) • Hungary (4 December 1998) • Iceland (17 August 1998) • Japan (13 October 1998) • Korea (4 January 1999) • Mexico (27 May 1999) • Norway (18 December 1998) • Slovakia (24 September 1999) • Sweden (7 June 1999) • United Kingdom (14 December 1998) • United States (8 December 1998)

ArgentinaThe text of the Convention in Spanish has beenfinalised. Ministerial consultations are underway on the amendments to the Penal Code. Thedraft bills to ratify and implement the Conven-tion are expected to be sent to Parliament inSeptember 1999.

Australia Legislation to implement the Convention hasbeen passed by the Australian Parliament andreceived Royal Assent on 17 June 1999. Thelegislation will come into effect on or before 17December 1999.

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AustriaThe legislation implementing the Conventionhas been in force in Austria since 1 October1998. The First Chamber of Parliament passedthe bill for ratification on 24 March 1999. Theratification process was finalised and the instru-ment of ratification deposited with the OECDSecretariat on 24 May 1999.

Belgium Ratification and implementation of the Con-vention involve two different steps. The ratifi-cation bill was adopted by Parliament on 22April and it received royal sanction on 9 June1999. The instrument of ratification shall soonbe deposited with the OECD Secretariat. Withrespect to revision of penal law to comply withthe obligations under the Convention, the leg-islative proposal was passed by Parliament atthe beginning of February 1999, was publishedon 23 March and entered into force on 3 April.

Brazil The Brazilian government has adopted a twotrack approach concerning implementation andratification of the Chamber of Deputies. Thetext of the Convention for ratification is alsounder examination by the Chamber ofDeputies. Once approved by the Chamber, bothtexts shall go to the Senate and to the Presidentfor signature. It is hoped that the procedures forimplementation and ratification will be com-pleted by the end of 1999 or early 2000. Atdomestic level, bribery is a predicate offence ofmoney laundering.

Bulgaria Bulgaria ratified the Convention on 3 June1998 and deposited its instrument of ratificationon 22 December 1998. A Law on Amendmentto the Penal Code was passed by Parliament on15 January 1999 and came into force on 29January 1999. An explanation of the term of“foreign public official”, in line with the termsof the Convention, has been incorporated intoArt. 93 of the Penal Code and a new paragraph2 to Article 304 of the Code has been inserted.The text of the Convention was published in theofficial state Gazette on 6 July 1999 and is nowconsidered part of the domestic legislation.

Canada The new legislation was adopted by the Senate

on 3 December 1998 and by the House on 7December 1999 and received Royal Assent on10 December 1998. The Convention was rati-fied on 17 December 1998. The law came intoforce at the same time as the Convention on 14February 1999.

Chile The draft law for ratification and implementa-tion of the Convention was presented to theChamber of Deputies on 5 January 1999 inorder to inform the commission for externalrelations. It is expected that the bill will beapproved by Parliament in the last quarter of1999, before the Presidential elections.

Czech Republic The draft amendment to the Criminal Code wasadopted by Parliament and came into force on 1July 1999. Regarding ratification, the draft lawis being discussed by Parliament and is expect-ed to be approved in the Fall 1999.

Denmark Denmark has prepared draft legislation on bothratification and implementation of theConvention. The Government submitted this toParliament in Spring 1999. The draft legislationwill be resubmitted to Parliament after theSummer recess. The bill is expected to beadopted and to come into force in the Fall 1999.The draft legislation is now publicly available,including on the Internet.

Finland The legislation for ratification and implement-ing legislation were approved by Parliament on9 October 1998 and Finland deposited itsinstrument of ratification on 10 December1998. The amended Penal Code entered intoforce on 1 January 1999. The Conventionentered into force internally on 15 February1999.

France The Council of Ministers (Conseil desMinistres) has approved the drafts on ratifica-tion and implementing legislation, after consid-eration by the State Council (Conseil d’Etat),and submitted them to Parliament. The ratifica-tion law was adopted on 25 May 1999. Theimplementing legislation will be resubmitted toParliament after the Summer recess. The ratifi-

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cation process is expected to be completed bythe end of 1999.

Germany Germany ratified the Convention on 10November 1998. The implementing legislationcontained in the Act on CombatingInternational Bribery of 10 September 1998entered into force together with the Conventionon 15 February 1999.

Greece The Convention was ratified by Parliament on5 November 1998. The implementing legisla-tion was passed by Parliament the same day.Greece deposited its instrument of ratificationon 5 February 1999.

Hungary The texts of ratification of the Convention andimplementing legislation (the Amendment ofthe Criminal Code) were submitted toParliament in May 1998. The texts for ratifica-tion were approved on 29 September 1998 andHungary deposited its instrument of ratificationon 4 December 1998. The Amendment of theCriminal Code was passed in December 1998and came into force on 1 March 1999.

IcelandThe Icelandic government deposited its instru-ment of ratification on 17 August 1998 and theimplementing legislation was passed byParliament on 22 December 1998.

Ireland The government has approved the drafting oflegislation to enable ratification of the OECDConvention on Bribery. The current law, inlarge measure, meets the requirements of theConvention. There are, however, one or twoareas where additional legislation has been con-sidered necessary and these issues are beingaddressed in the legislative proposals. In themeantime, copies of the Convention were laidbefore the Dail in May 1999. It is anticipatedthat the Bill, to be known as the Prevention ofCorruption Bill, will be published in late 1999.

ItalyOn 24 March 1999 the Italian Chamber ofDeputies approved the bill for the ratificationand enforcement of the OECD Convention,

together with various EU instruments againstfraud and corruption. The Chamber has amend-ed the bill reinforcing the framework forimposing non-criminal sanctions against legalpersons under Art. 3.2 of the Convention, anew feature in the Italian legal system. Thegovernment has been delegated to introducethese sanctions – including fines up to Euro 1.5million – within six months from the finalapproval of the bill. The bill is currently beingexamined by the Senate, which is expected topass it as soon as possible.

JapanOn 10 April 1998, the government of Japan for-mally submitted the Convention on CombatingBribery of Foreign Public Officials in Interna-tional Business Transactions, along with itsimplementing legislation (amendments to theUnfair Competition Prevention Law) to theNational Diet. The National Diet approved theconclusion of the Convention on 22 May 1998.The implementing legislation was adopted on18 September 1998. The instrument of accep-tance was deposited on 13 October 1998.

Korea The Korean government formally submitted thebill to ratify the Convention along with itsimplementing legislation to the NationalAssembly in October 1998. Both bills wereapproved by the National Assembly on 17December 1998. Korea deposited its instrumentof ratification on 4 January 1999. Korea’simplementing legislation – the Act on Prevent-ing Bribery of Foreign Public Officials inInternational Business Transactions – went intoeffect on 15 February 1999, at the time of theentry into force of the OECD Convention.

Luxembourg The draft bill to ratify and implement theConvention will be submitted in October 1999to the Conseil d’Etat. It is expected that the leg-islative procedure will be completed end 1999or early 2000.

MexicoThe Convention was approved by the MexicanSenate as an international treaty on 22 April1999; on 12 May, the promulgation decree waspublished in the Official Gazette of theFederation (DOF). The implementing legisla-

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tion was approved by the two Chambers inCongress at the end of April, as part of a com-prehensive package of reforms to the Criminalcode in Mexico. The respective decree was pro-mulgated in the DOF on 17 May 1999. Theinstrument of ratification was deposited withthe OECD Secretariat on 27 May 1999.

Netherlands Bills to ratify and implement the Conventionwere sent to Parliament in April 1999. ThreeEU treaties were submitted at the same time.The Convention needs to be ratified by theKingdom of the Netherlands which includes theNetherlands Antilles and Aruba. Both chambersof Parliament will have to approve the bills.

New Zealand The New Zealand government has approved thepolicy to amend New Zealand law to enable itto ratify the Convention. Drafting instructionsfor the necessary legislative amendments havebeen issued and drafts of the proposed legisla-tion are currently being reviewed by officialsfor introduction to Parliament in the nearfuture. Passage of the requisite implementinglegislation and ratification is expected by theend of 1999.

NorwayAfter consultation with the relevant private andpublic authorities, at the end of May 1998, thegovernment submitted to Parliament the bills toratify and implement the Convention. Theamendments to the Penal Code were passed on27 October 1998 and came into force on 1January 1999. The instrument of ratificationwas deposited on 18 December 1998.

PolandThe Ministry of Justice has finalised a draftimplementing law. Interministerial consulta-tions have been held since February 1999. Thedraft bill will have to be submitted to theCouncil of Ministers before the ratification andimplementation procedure can be finalised.

PortugalThe ratification procedure has almost beencompleted, the Convention having been submit-ted to Parliament and currently under review bythe specialised committees. The Portuguesecompetent authorities within the Ministry of

Justice are finalising the draft legislation need-ed to alter the criminal legislation currently inforce in order to implement the OECDConvention. A copy of the draft legislation willbe provided to the OECD Secretariat and theBribery Working Group as soon as it is madepublicly available.

Slovak RepublicSlovak Parliament approved the ratification ofthe Convention on February 11, 1999. Theimplementing legislation (Criminal Codeamendment and Act on Banks amendmentimplementing Article 9 of the Convention) isunder discussion by Parliament. The draftamendment of the Criminal Code, which alsoincludes provisions implementing the CriminalLaw Convention of the Council of Europe, isexpected to enter into force in August 1999.The draft amendment of the Banking Act isforeseen to be approved by Parliament endSeptember 1999. The completion of the wholeprocess (ratification and implementation) isexpected to take place at the end of October1999. The instrument of ratification should thenbe deposited with the OECD.

Spain The draft legislation for ratification, asapproved by the Council of Ministers, was sub-mitted to Parliament in the Fall 1998. Sincethen, Parliament has given permission to gov-ernment to ratify the Convention. As to imple-menting legislation, a draft text has beenapproved by the Council of Ministers afterbeing reviewed by the General Law Council on29 January 1999. The text of the implementinglegislation has been sent to Parliament. The billwill be examined in the next Fall session.

SwedenThe bill embracing the necessary amendmentsof Swedish legislation in order to be able to rat-ify and implement the Convention was passedby Parliament on 25 March 1999. The instru-ment of ratification was deposited with theOECD on 8 June 1999. The implementing leg-islation entered into force on 1 July 1999.

Switzerland The draft law, based on the results of consulta-tions among cantons and other interested par-ties, has been signed by the Minister of Justice

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and was submitted to Parliament on 19 April1999. Parliament has taken up debates on thedraft in the Summer of 1999. It is expected thatthe law will be approved before the end of theyear. The Convention will be ratified as soon asthe bill enters into force.

Turkey The draft bill to ratify the Convention has beensubmitted to Parliament. The interministerialconsultations on the text to implement theConvention have been completed. A bill is nowbeing drafted and should be sent to Parliamentover the Summer.

United KingdomThe United Kingdom deposited its instrumentof ratification on 14 December 1998. Althoughinternal consultations have confirmed that thescope of existing laws allows the UnitedKingdom to meet the requirements of theConvention, the UK is currently consideringthe formulation of a new public statute on cor-ruption. A public discussion document on pro-posals for new legislation on corruption isexpected to be published before the end of theyear.

Steps are being taken to bring the ChannelIsles and the Isle of Man within the scope of theConvention. Whilst these territories have indi-cated their willingness to do this, they need to

enact new legislation to ensure their domesticlaws match the provisions of the Convention.

Also, the process to bring UK’s overseas ter-ritories under the scope of the Convention isbeginning. This will involve a bilateral consul-tative process with each territory. The intentionis for these territories to adhere to the Conven-tion via the UK’s own ratification. The territo-ries will not adhere individually.

In relation to the overseas territories, a WhitePaper entitled Partnership for Progress waspublished on 17 March 1999. One element ofthis refers to the requirement for the overseasterritories to match the best international stan-dards in financial regulations and stipulatesthat, by the end of 1999, they will be requiredto meet, in full, international standards onmoney laundering, transparency and coopera-tion with law enforcement authorities and inde-pendent financial regulations.

United States On 31 July 1998 the Senate approved both theConvention and the implementing legislation.Congress completed action on implementinglegislation in October 1998. The implementinglegislation was signed by the President on 10November 1998; the ratification instrument wassigned by the President on 20 November 1998.The US deposited its instrument of ratificationwith the OECD on 8 December 1998.