Gutterman
9
Each Party shall take such measures as may be necessary to establish that it is a
criminal offence under its law for any person intentionally to offer, promise or
give any undue pecuniary or other advantage, whether directly or through
intermediaries, to a foreign public official, for that official or for a third party, in
order that the official act or refrain from acting in relation to the performance of
official duties, in order to obtain or retain business or other improper advantage in
the conduct of international business.
19
The precision of the Convention’s provisions is further evident through separate
articles on Responsibility of Legal Persons, Sanctions, Jurisdiction, Statute of
Limitations, and other measures, which establish signatories’ obligations through
concrete formulations that effectively narrow the scope for reasonable interpretation. The
Convention’s article on Enforcement, furthermore, explicitly states that in their
investigation and prosecution of the bribery of a foreign public official, Parties “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.”
20
Delegation: Formal Follow-Up Mechanism
In addition to its high levels of obligation and precision, the Convention contains
a strong measure of delegation, through its inclusion of a formal peer-review mechanism
to monitor and enforce compliance. Under the heading “Monitoring and Follow-up”, the
Convention’s Article 12 stipulates that “the Parties shall co-operate in carrying out a
programme of systematic follow-up to monitor and promote the full implementation of
this Convention.”
21
Under the framework of the OECD Working Group on Bribery in International
Business Transactions (hereafter referred to as the Working Group or the Group), the
Convention’s monitoring and enforcement mechanism consists of a two-phase peer-
review of the implementation steps taken by participating countries. Phase 1 monitoring
evaluates whether the legal texts through which participants implement the Convention
meet the required standard. The purpose of Phase 2 is to study the structures put in place
to enforce the implementing laws and rules, and to assess their application in practice.
19
OECD 2000, 244.
20
OECD 2000, 245.
21
OECD 2000, 247.
Convention