Transparency International med brev til OECD

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Transparency International ser med stor bekymring på utviklingen i USA, etter at håndhevingen av antikorrupsjonslovgivning FCPA og etterforskning av saker er satt på pause.
Vi oppfordrer OECDs arbeidsgruppe til å adressere dette i møtet som pågår i disse dager, og har sendt et åpent brev til gruppen hvor vi tar til orde for skjerpet håndheving av OECD-konvensjonen mot bestikkelser.

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Pause in US enforcement of the FCPA

19 February 2025

Dear Ms. Roussel, dear members of the OECD Working Group on Bribery,

We are writing to you ahead of the upcoming meeting of the OECD Working Group on Bribery (WGB) on 5 - 8 March 2025 to express our deep concern about the US President’s Executive Order of 10 February entitled “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security.”This order was preceded by the US Attorney General’s 5 February Memorandum drastically narrowing the focus of FCPA enforcement from the wide range of cases to date to a limited focus on cases where foreign bribery facilitates the criminal operations of Cartels and Transnational Criminal Organizations (TCOs).

The US executive order emphasizes the importance of protecting for the US and its companies “strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.” It deplores the impediments to “US economic competitiveness” due to FCPA enforcement against American citizens and businesses for “routine business practices.” It aims to eliminate those enforcement “barriers to American commerce abroad.”

We believe that these considerations contradict the letter and spirit of the OECD Anti-Bribery Convention and we urge the OECD WGB to seek explanations from the US delegation at its upcoming meeting in March.

Following the discussion in March, we invite the OECD WGB to immediately initiate a monitoring of the US with respect to (1) changes in US guidance documents in the next three to six months and beyond; (2) changes in US enforcement practices in the next twelve months and beyond; and (3) any further action that could be detrimental to the FCPA or the fight against foreign bribery. The US should be requested to submit relevant information. If the preliminary findings of reviewers continue to provide grounds for concern, we urge the OECD WGB to initiate a HighLevel Mission to the US on this matter.

Indeed, the stated grounds for the executive order are in contravention of Article 5 of the OECD Anti-Bribery Convention which provides that “Investigation and prosecution of the bribery of a foreign public official …shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

The Executive Order and the Memorandum have raised alarm bells around the world at the prospect of the withdrawal of the world’s leading economic power from its enforcement responsibilities against foreign bribery. A global decline in enforcement would take us back to a world where bribe-paying becomes the main factor in government decision-making, destroying value for companies and diverting public money and resources away from the public good.

We also note the following:

1. US suspension of enforcement will not remove the exposure to liability of US businesses, since they will remain subject to enforcement efforts in other countries and also potentially, to pursuits in the US.

2. The suspension of US enforcement will immediately expose US business to increased solicitation of bribes from corrupt officials.

3. The evidence shows that US enforcement is not only against US companies but that almost half of recent FCPA cases have been brought against foreign companies and sizable fines have been imposed on them.

4. The bribery pursued under the FCPA can hardly be described as “routine business practices.” It often involves tens of millions of dollars in bribe payments and causes huge damage to the countries affected, whether Malaysia or Mozambique or other countries around the world.

We urge the WGB to take the steps described above at its next meeting. We also call on all WGB members to step up their enforcement in line with the Convention.

Sign. Francois Valerian/ Chair Transparency International