33 posadas supra note 4 at 381 footnotes omitted 34

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33. Posadas, supra note 4, at 381 (footnotes omitted). 34. For example, in May of 2006, the OECD adopted guidelines requiring companies seeking export guarantees from first world governments to declare whether any of their staff had been charged with or convicted of bribing foreign officials. These guarantees, worth approximately $60 billion per year, were viewed as a significant factor in closing large projects, but were often given without any inquiry into the "clean hands" of the recipient. Michael Peel & Hugh Williamson, OECD Says Companies Must Reveal Record on Bribery, FIN. TIMEs, May 16, 2006, at 8. 118 [Vol. 23:1
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WHEN IS A BRIBE NOT A BRIBE? calling on thirty-eight State Parties to the OECD Convention to attend to the roles of agents and third-party intermediaries and to "periodically review policies and approach on small facilitation payments." 3 In 2010, the OECD Working Group on Bribery, the committee group in charge of the monitoring process, took the United States to task with its recommendation during Phase 3 evaluations of the record on anti-corruption efforts, specifically suggesting "further attention [to] policies on and approach to facilitation payments. ... In taking this position, the OECD mirrored the approach taken by most US corporations, 87% of which prohibit facilitation payments as a matter of internal policy. 3 7 Important to our discussion to follow, the Good Practice Guidance on Internal Controls, Ethics and Compliance, Annex II of the Recommendations and adopted by the OECD in 2010, suggests a number of "good practices for ensuring effective internal controls, ethics and compliance programmes or measures for the purpose of detecting or preventing bribery," including specifically recommending that "business organizations ... play a leading role in providing anti-bribery information, advice and training to companies, especially small- and medium-sized enterprises." 38 Areas of specific concern include the following familiar list which is, "applicable to all directors, officers, and employees, and applicable to all entities over which a company has effective control, including subsidiaries, on, inter alia, the following areas: i) gifts; ii) hospitality, entertainment and expenses; iii) customer travel; iv) political contributions; v) charitable donations and sponsorships; vi) facilitation payments; and ,039 vii) solicitation and extortion .... This list illustrates shared concerns, but does not offer much more 35. Government Agrees to Step Up Fight Against Bribery, OECD, Sept. 12, 2009, . html. 36. Annual Report, OECD WORKING GROUP ON BRIBERY (2010), at 23, [hereinafter OECD WORKING GROUP ON BRIBERY]. 37. Global Anti-Bribery and Corruption Survey 2011, KPMG, 2011, at 17, 23816NSS GlobalABC_Survey.PDF; OECD Calls for End to Facilitating Payments Exception, JONES DAY, Dec. 2009, (placing the figure at 80%).
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