International Criminal Law
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international business corruption, was rightly seen by US corporations and their
foreign subsidiaries as placing them at an onerous disadvantage against their
international competitors who were not susceptible to such laws.
US-led efforts to achieve global normative consensus on the international
criminalisation of foreign bribery prompted various organisations to confront this
issue for the first time. In 1975, the General Assembly of the UN passed Resolution
3514, condemning bribery by transnational and multinational corporations and the
United Nations Economic and Security Council directed ECOSOC to formulate a
code of conduct regarding payments in international trade. Although an ad hoc
Working Group on Corrupt Practices was established and produced a draft
Agreement on Corrupt Practices, lack of support from developed nations eventually
shelved this project. At the same time, the OECD established a Committee on
International Investment and Multinational Enterprises (CIME) with the purpose
of drafting a relevant code of conduct. On 21 June 1975, the OECD Ministerial
Conference adopted a Declaration on International Investment that prohibited the
solicitation and payment of bribes to foreign officials, as well as other unlawful
political contributions.
162
However, it was not until 1994, and the adoption by the
OECD Council of a Recommendation on Bribery in International Business
Transactions,
163
that mounting pressure had paved the way for establishing concrete
normative guidelines on international corruption. This Recommendation called upon
OECD Member States to deter bribery through their national legislation and practice,
especially by amendment of any tax laws that permit or favour bribery and further
urged them to facilitate international co-operation. CIME was designated as a
monitoring body, ordered to review the status of the Recommendation after three
years. On the instigation of the US, the OECD Council adopted, on 11 April 1996, a
Recommendation calling upon States to re-examine their laws on tax deductibility
concerning bribes paid to foreign public officials, which were often listed as
commissions or fees, preferably by treating such bribes as illegal.
164
In accordance
with its mandate, on 23 May 1997, CIME submitted a Revised Recommendation on
Combating Bribery in International Business Transactions, which the OECD Council
subsequently adopted.
165
This instrument recommended the adoption of specific
legislative proposals in every field of national laws—criminalisation of bribery, non-
recognition of tax deductibility, enforcement of adequate accounting, independent
external audit, internal company controls, transparency in public procurement and
international co-operation—and eventually formed the basis for the OECD’s 1997
162 Likewise, the International Chamber of Commerce issued a report in 1977 containing Rules of Conduct
to Combat Extortion and Bribes, in connection with retaining or obtaining business, requiring the
adoption of codes of conduct and rigorous accounting controls by participating States. These Rules
were revised in 1996, reprinted in 35 ILM (1996), 1306.
163 OECD Doc C(94)75/FINAL (27 May 1994), 33 ILM (1994), 1389.
164 1996 Recommendation on the Tax Deductibility of Bribes to Foreign Public Officials, OECD Doc
C(96)27/FINAL (17April 1996), 35 ILM (1996), 1311; following publication in May 1997 of the OECD’s
Committee on Fiscal Affairs (CFA)
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