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
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%).
