2021 OECD Anti-Bribery Recommendation

Compliance as a Mitigating Factor in Enforcement Proceedings
and Advantage in Public Procurement
2021 Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions (the 2021 Recommendation),[1] adopted by the Organization for Economic Co-operation and Development (OECD) in late November 2021, supplements and enhances its previously issued 2009Recommendation and complements the OECD Anti-Bribery Convention, by further supporting and strengthening its implementation.

The 2009 Anti – Bribery Recommendation needed to be revised in light of new challenges in the foreign bribery area that have emerged over the last decade and to make sure it reflects the range of trends and good practices in the field of anti-bribery and corruption.

The 2021 Recommendation, which is binding on all parties to the OECD Anti-Bribery Convention, including Israel, is focusing on the following topics: international cooperation, non-trial resolution, demand side of foreign corruption, protection of reporting persons, and data protection, among others.  While all topics equally deserve attention, we would like to highlight the OECD recommendations on introducing incentives for compliance and maintaining adequate accounting and external audit requirements.  

In terms of incentives for compliance, the 2021 Recommendation encourages the law enforcement authorities to consider effective internal controls and compliance programs as a potential mitigating factor in the context of enforcement of foreign bribery and related offences.

Further, the 2021 Recommendation suggests governments to take into account existing compliance programs and other measures of detecting and preventing bribery, when granting public advantages, such as public subsidies, public licenses, procurement contracts, or export credits.  The goal is to incentivize enterprises to develop anti-bribery and corruption compliance programs through incorporating it as a factor in government agencies’ decision-making process.      

With respect to internal controls, ethics and compliance, the 2021 Recommendation urges the member states to encourage companies to develop and adopt adequate internal controls, ethics and compliance programs that will help to detect and prevent bribery and other corrupt conduct. Among the recommendations are: public disclosure(through annual reports or other management statements) of existing anti-corruption measures; creation of audit committees or supervisory boards that would be independent of management; and increased whistleblower protection.  

In light of the adoption of the2021 Recommendation, it may be timely to review and evaluate your existing compliance program and its effective implementation, or to establish and implement an anti-bribery and corruption compliance program, to the extent this has not yet been done.

[1] OECD-LEGAL-0378-en.pdf

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