Whistleblowers and the OECD Anti Bribery Convention
The Organisation for Economic Co-operation and Development (OECD) Anti-Bribery Convention dates back to 1997. Despite its somewhat misleading tile, it is one of the very first International Instruments having recognised whistleblowers, and set out clear guidelines.
Its full title might be misleading:
Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
I for one had originally dismissed even reading this convention because the title suggests it is not applicable to anything else then bribing foreign public officials. The convention is however nothing like its title leads to believe.
The OECD has been active since this convention. Declarations, standards, guidelines, recommendations, state reports, ... Hundreds of documents, thousands of pages. Too much for me to review all. In addition, some of the important documents are behind a paying interface. So the below is only a surface scratching to highlight its unambiguous importance to whistleblowers and corruption.
The OECD Anti Bribery Convention and the United Nations Convention Against Corruption
There are many references by the OECD legal instruments towards the United Nations Convention Against Corruption (UNCAC). Member states must use UNCAC for any definition or discrepancy the OECD Anti Bribery Convention (ABC) leaves open. I lift two examples.
The ABC “recognises that the OECD Anti-Bribery Convention and the United Nations Convention against Corruption (UNCAC) are mutually supporting and complementary”.
In 2019 the OECD called upon its members in its OECD Guidelines on Anti-Corruption and Integrity in State-Owned Enterprises to use UNCAC definitions.
Definition: Whistleblower what and who?
The ABC defines everything from a criminal perspective. As such, it does not define what a whistleblower or a reporting person is. Neither does it provision limits, such as for example (work) related context(s).
Its G20 Anti-Corruption Actionplan: Protection of Whistleblowers acknowledges different definitions of whistleblowers, including the UNCAC definition any person can be a whistleblower.
ABC legal instruments such as guidelines, declarations, ... may provide examples and definitions in work related contexts, but a work related context is not exclusive for the convention to be executionary.
There are clear provisions “any person” can be a whistleblower under the ABC. Some examples:
XXI. Reporting > establish and publicise clear policies and procedures by which any natural person, including public officials, can report suspicions of bribery of foreign public officials and related offences to competent authorities, including by allowing for confidential and, where appropriate, anonymous reporting; > consider allowing for anonymous reports, and ensure that all relevant protections are available to those who are subsequently identified and may suffer retaliation;
Not only any person is specified, but anonymous reports include by definition of anonymity the possibility for anyone to report.
It further “recognises that the OECD Anti-Bribery Convention and the United Nations Convention against Corruption are mutually supporting and complementary”. We know UNCAC defines any person can be a whistleblower.
Several OECD documents underline the convention “must apply to all persons”.
So while the OECD convention does not define what is a reporting person or whistleblower, it is applicable to anyone who, as per article 1 of the convention, combats the Offence of Bribery of Foreign Public Officials.
So what does the convention cover beyond “foreign public officials” and “bribery”?
Taken straight from its article 1:
a) “foreign public official” means any person holding a legislative, administrative or judicial office of a foreign country, whether appointed or elected; any person exercising a public function for a foreign country, including for a public agency or public enterprise; and any official or agent of a public international organisation; b) “foreign country” includes all levels and subdivisions of government, from national to local; c) “act or refrain from acting in relation to the performance of official duties” includes any use of the public official’s position, whether or not within the official’s authorised competence.
To make it easier to understand and as an example, even a local judge not acting to protect children from the risk of child sexual abuse is subject to the ABC. Pretty strong and broad scope convention!
Its other definitions in its article 1 explain that:
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. a) “foreign public official” means any person holding a legislative, administrative or judicial office of a foreign country, whether appointed or elected; any person exercising a public function for a foreign country, including for a public agency or public enterprise; and any official or agent of a public international organisation; b) “foreign country” includes all levels and subdivisions of government, from national to local; c) “act or refrain from acting in relation to the performance of official duties” includes any use of the public official’s position, whether or not within the official’s authorised competence.
Allow me to rephrase in more human language.
The ABC covers:
- any intentional advantage, such as: money, power, status, recognition, service, help, ... (It does not have to have been accepted, obtained or retained)
- any person holding a governmental (national or local), legislative, administrative, judicial or public position in a country or international organisation
- any act or refrain from acting
- regardless of position or authorised competence
The ABC also recognises that the person being bribed is automatically presumed to be responsible for inducing or pressuring the corruption. Accomplices and facilitators are just as defined by the ABC.
Obligation to investigate
ABC parties “commit” to investigate any tip, even anonymous tips. Reporting does not need to be comprehensive or correspond to a particular format. However, it needs to be “in good faith and on reasonable grounds suspicion of acts of corruption/bribery”. Particularly interesting I find is:
VIII. Undertake further due diligence if they become aware of reasons to believe that bribery may be involved in the transaction (e.g. press reports from a reputable source, information provided by parties involved in the transaction, whistle-blower information, etc.)
What protection for whistleblowers, if any?
The ABC recommendation 22 provisions for whistleblower protection. It considers the “essential role that reporting persons can play as a source of detection of foreign bribery cases”.
Initially, it acknowledges protection to “persons working in the private or public sector who report”. So it may appear as if the protections of the ABC may only apply within a “work related context”.
However, it further develops under 22.6 that:
vi.provide a broad definition of retaliation against reporting persons that is not limited to workplace retaliation and can also include actions that can result in reputational, professional, financial, social, psychological, and physical harm;
Again an indication the “work related context” is not a limiting factor for wrongdoing to be reported under protected circumstances. Moreover, it demands in its recommendation 22.4 “that all relevant protections are available to those who are subsequently identified and may suffer retaliation”.
Indeed, an anonymous source may well be non work context related. The definition of anonymous is to not be known, and as such not known to be a work related person.
Since reporting person and whistleblower are concepts not defined in the ABC, one must refer to the UNCAC, which clearly defines “any person”.
Some protections can naturally, by their nature, only be exclusively linked to a work related context. For example, being made redundant as a direct consequence of whistleblowing. Therefore I herewith only list protections due to “any person”:
XXII. Protecting > vi. provide a broad definition of retaliation against reporting persons that is not limited to workplace retaliation and can also include actions that can result in reputational, professional, financial, social, psychological, and physical harm; > vii. ensure appropriate remedies are available to reporting persons to compensate direct and indirect consequences of retaliatory action following a report that qualifies for protection, including financial compensation, and interim relief pending the resolution of legal proceedings; > viii. provide for effective, proportionate, and dissuasive sanctions for those who retaliate against reporting persons; > ix. in administrative, civil, or labour proceedings, shift the burden of proof on retaliating natural and legal persons and entities to prove that such allegedly adverse action against a reporting person was not in retaliation for the report; > x. ensure that reporting persons are not subject to disciplinary proceedings and liability based on the making of reports that qualify for protection; > xi. consider introducing incentives for making reports that qualify for protection;
In short, protection is applicable to any person, and needs to:
- be strong and effective
- protect and/or provide remedy against any retaliatory action
- ensure protection from legal action
- provide a broad definition of retaliation against reporting persons, not limited to workplace retaliation and includes actions that can result in various harm.
legally binding Public Integrity
One could argue the OECD Recommendation of the Council on Public Integrity (REC) is only a recommendation which member states could just thumb their noses at, however, it is part of ABC's monitoring:
INSTRUCTS the Public Governance Committee to monitor, through its Working Party of Senior Public Integrity Officials, the implementation of this Recommendation and to report thereon to the Council no later than five years following its adoption and regularly thereafter.
So within 5 years after January 26th 2017, date at which this recommendation was adopted by the OECD member states, the REC needs to be implemented.
The REC states in its recommendation that “action should go beyond the executive and take into consideration legislative and judiciary bodies and their vital role in ensuring integrity in the country” by:
12.b) ensuring that oversight bodies, regulatory enforcement agencies and administrative courts that reinforce public integrity are responsive to information on suspected wrongdoings or misconduct received from third parties (such as complaints or allegations submitted by businesses, employees and other individuals);
It emphasises that the definition of “officials” includes the justice system as a whole:
Public sector includes the legislative, executive, administrative, and judicial bodies, and their public officials whether appointed or elected, paid or unpaid, in a permanent or temporary position at the central and subnational levels of government. It can include public corporations, state-owned enterprises and public-private partnerships and their officials, as well as officials and entities that deliver public services (e.g. health, education and public transport), which can be contracted out or privately funded in some countries.
On the subject of transparency and accountability the REC states:
Transparency is not enough. Rendering information publicly available is not sufficient and should go hand in hand with effective scrutiny and accountability mechanisms.
The REC warns about how public policies should not serve other interests then the public interest:
Capture of public policies by narrow interests, ... where public decisions over policies are directed away from the public interest towards a special interest, can exacerbate inequalities and undermine democratic values, economic growth and trust in government.
State Owned Enterprises
On September 20th 2022, the OECD notified its members in its Guidelines on Anti-Corruption and Integrity in State-Owned Enterprises that “the risk of undue influence in SOEs for personal or political gain” remained high. This while member states have to “prevent the abuse of SOEs for personal or political gain”.
I find it particularly interesting the OECD finds in its Compliance Without Borders Handbook on July 26th 2023 that:
Corruption in state-owned enterprises has a unique ability to undermine governments, markets and citizens’ wellbeing.
A personal concluding opinion
This ABC dates back quarter of a century ago, back to 1997. In the context of the time period I find it is remarkably modern and comprehensive. It already recognised:
- any person can be a whistleblower
- whistleblowers face psychological harm
- the briber might not be the main responsible party to corruption
- the judiciary and state owned enterprises are subject to corruption, harming public policies and transparency
By all accounts, modern and forward thinking for its era if we compare it to newer instruments such as the European Whistleblower Directive (EWD). The latter to me being inexplicably applauded.
EU member states are parties of the OECD and UNCAC, so one would expect for an improvement by the EWD. It is however a fine example of law regression, which I'll post about in one of the next posts.
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