FOR COUNTERING BRIBERY – MARCH 2013
OVERVIEW DOCUMENT
INTRODUCTION
Transparency International is issuing for comment a revised version of the 2009 Business Principles for Countering Bribery. The revised draft of the Business Principles is available for comment from 25 March 2013 to 27 May 2013. All interested parties are invited to provide feedback on the proposed revisions to the Business Principles.
BACKGROUND
The Business Principles were originally published in 2003 after a consensus-based development process which involved public consultation. The Business Principles were drafted in collaboration with a multi-stakeholder steering committee comprised of leading multinationals and stakeholders drawn from academia, trade unions and business ethics experts. The aim of the Business Principles is to provide guidance to companies in developing or benchmarking best-practice anti-bribery programmes. Although, the membership of the Steering Committeehas changed over the years it has remained closely involved in efforts to disseminate and maintain the Business Principles. Members of the Steering Committee have provided considered input in this consultation draft.
The primary aim of the current revisions is to maintain the ‘gold-standard’ status of the Business Principles and, where feasible, align them to the private sector provisions of the United Nations Convention against Corruption (UNCAC) and to other similar leading codes.
The publication of the revised Business Principles is planned for September 2013.
SIGNIFICANT PROPOSED CHANGES TO THE BUSINESS PRINCIPLES FOR COUNTERING BRIBERY
This current revision of the Business Principles is part of periodic review process to ensure that they remain current in the light of changing anti-bribery laws and evolving corporate practice. In this round of revisions, a broadening of the scope of the Business Principles was initially considered but it was felt that the narrow focus on bribery was a major strength of the Business Principles and that this should be maintained, at least for the foreseeable future.
A new Commentary will be drafted by Transparency International to accompany the revised Business Principles upon publication. Although the focus on bribery has been maintained, the revised the Business Principles now include new clauses as well as revised language on the following topics.
Risk assessment
In view of the growing importance of risk assessment in anti-bribery good practice guidance and the emphasis on the topic in the UK Bribery Act, it was agreed that the clause in the 2009 Business Principles did not reflect current good practice and it was agreed that a new, separate section on Risk Assessment should be created.
Conflicts of interest
Conflicts of interest do not necessarily involve improper or corrupt behaviour but they can arise when a director, employee or contracted third party breaches his or her duty to the enterprise by acting in a manner which serves private his or her own private interests rather than those of the enterprise. In view of the importance of monitoring and managing conflicts of interests, the Steering Committee decided it was important to introduce this topic into the Business Principles. Additionally, conflicts of interest are covered in UNCAC and in the 2011 edition of the ICC Rules on Combating Corruption.
Cooperation with authorities
Asection is also being added to the Business Principles on cooperation with authorities to align the Business Principles with Article 39 of UNCAC which stipulates that:
1. Each State Party shall take such measures as may be necessary to encourage, in accordance with its domestic law, cooperation between national investigating and prosecuting authorities and entities of the private sector, in particular financial institutions, relating to matters involving the commission of offences established in accordance with this Convention.
2. Each State Party shall consider encouraging its nationals and other persons with a habitual residence in its territory to report to the national investigating and prosecuting authorities the commission of an offence established in accordance with this Convention.
Facilitation payments
In the 2009 edition of the Business Principles, the clause dealing with facilitation payments recognised that facilitation payments were bribes and that the enterprise “should work to identify and eliminate them.’ In the light of changing corporate practice and the absence of exceptions for facilitation payments in new bribery legislation such as the UK Bribery Act, the language of the Business Principles should be amended to advocate full prohibition of facilitation payments by the enterprise.
Business relationships
Sub-section 6.2 on Business relationships has been re-organised and enhanced to highlight the steps an enterprise should take with respect to business partners. The clauses now provide clearer guidance on managing relationships with business partners when the enterprise has effective control over the partner and when it does not.
Lobbyists
lobbyists in view of the risks they pose to the enterprise. However, as it is standard corporate practice to treat lobbyists as any other type of intermediary, albeit a high-risk one, it was agreed that specific references to lobbyists should be added to clauses covering intermediaries.
Communication and Reporting
Standards of corporate transparency are evolving and greater emphasis is now being placed on public reporting. A number of initiatives that are currently in force or that are being proposed, such as the Extractive Industries Transparency Initiative (EITI), the Dodd-Frank Wall Street Reform Act in the US and proposed EU Directives on Transparency and Accounting are requiring more comprehensive reporting by multinationals. This includes Transparency International’s own surveys and advocacy on corporate reporting as well as its joint work with the United Nation’s Global compact in developing the Reporting Guidance on the 10thPrinciple Against Corruption. For this reason, the Business Principles now include a specific reference to ‘reporting’ in Section 6 and encourage enterprises to report on a country basis as well as to be more transparent about their organisational structures by reporting on material holdings, subsidiaries, affiliates, joint ventures and related entities.
Miscellaneous
In addition to new provisions, additional edits were made to the existing text to further clarify this existing or to update language which may have evolved since the Business Principles were first published. An example is the change from ‘interested parties’ to ‘stakeholders’ throughout the document. All additions and edits to the 2009 version can be seen in the tracked version of the Business Principles.
HOW TO RESPOND
Transparency International invites all interested stakeholders to provide responses to a short questionnaire. Feel free to address any or all of the questions on the questionnaire. The final section provides the opportunity to comment on any topics that you believe have not been adequately addressed by the questions.
Responses and comments should be submitted in English and forwarded via email to:
Susan Côté-Freeman at
Or by post to the following address:
c/o Susan Côté-Freeman
Transparency International Secretariat
Alt-Moabit 96
10559 Berlin
Germany
Please note that responses will be disclosed only in aggregated form. The names of all respondents will be published but will not be linked to their individual responses.
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TRANSPARENCY INTERNATIONAL
CONSULTATION ON THE REVISED BUSINESS PRINCIPLES FOR COUNTERING BRIBERY – 2013 EDITION
25 MARCH TO 27 MAY 2013