33. Posadas, supra note 4, at 381 (footnotes omitted).34. For example, in May of 2006, the OECD adopted guidelines requiring companiesseeking export guarantees from first world governments to declare whether any of their staffhad been charged with or convicted of bribing foreign officials. These guarantees, worthapproximately $60 billion per year, were viewed as a significant factor in closing largeprojects, 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
WHEN IS A BRIBE NOT A BRIBE?calling on thirty-eight State Parties to the OECD Convention to attend tothe roles of agents and third-party intermediaries and to "periodicallyreview policies and approach on small facilitation payments."3 In 2010, theOECD Working Group on Bribery, the committee group in charge of themonitoring process, took the United States to task with its recommendationduring Phase 3 evaluations of the record on anti-corruption efforts,specifically suggesting "further attention [to] policies on and approach tofacilitation payments. ... In taking this position, the OECD mirrored theapproach taken by most US corporations, 87% of which prohibit facilitationpayments as a matter of internal policy.3 7Important to our discussion to follow, the Good Practice Guidance onInternal Controls, Ethics and Compliance, Annex II of theRecommendations and adopted by the OECD in 2010, suggests a number of"good practices for ensuring effective internal controls, ethics andcompliance programmes or measures for the purpose of detecting orpreventing bribery," including specifically recommending that "businessorganizations ... play a leading role in providing anti-bribery information,advice and training to companies, especially small- and medium-sizedenterprises."38 Areas of specific concern include the following familiar listwhich is, "applicable to all directors, officers, and employees, andapplicable 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,039vii) solicitation and extortion ....This list illustrates shared concerns, but does not offer much more35. 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 ONBRIBERY].37. Global Anti-Bribery and Corruption Survey 2011, KPMG, 2011, at 17,23816NSS GlobalABC_Survey.PDF; OECD Calls for End to Facilitating PaymentsException, JONES DAY, Dec. 2009, (placing the figureat 80%).