Jump to ContentJump to Main Navigation
International Anti-Corruption NormsTheir Creation and Influence on Domestic Legal Systems$

Cecily Rose

Print publication date: 2015

Print ISBN-13: 9780198737216

Published to Oxford Scholarship Online: October 2015

DOI: 10.1093/acprof:oso/9780198737216.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: null; date: 26 February 2017

(p.233) Appendix II

(p.233) Appendix II

Source:
International Anti-Corruption Norms
Publisher:
Oxford University Press

(p.233) Appendix II

(p.234)

Comparison of Transparency and Participation with respect to the OECD Anti-Bribery Convention, the UN Convention against Corruption, the EITI Standard, and the FATF 40 Recommendations1

OECD Anti-Bribery Conventi on

UNCAC

EITI Standard

FATF 40 Recommendations

Transparency

Publication of travaux préparatoires or other drafting history.

No.2

Yes.3

No, but stakeholders’ detailed comments on 2013 revised Standard are publicly available.4

No.5

Publication of documents concerning procedural processes (evaluation procedures, etc).

Yes, Recommendations require Working Group on Bribery to update public on its work and activities on implementation.6

Yes, but to a lesser extent than OECD and FATF.7

Yes, EITI documents are public as a general rule, subject to certain exceptions.8

Yes, but often belatedly.9

Publication of mutual evaluation reports.

Yes, for all mutual evaluation phases.10

No, has been subject of criticism.11

N/A. EITI does not conduct mutual evaluations.

Yes, but only since 2004.12

Publication of responses to public consultations.

Yes, see 2008 publication of responses to Consultation Paper on review of OECD Anti-Bribery instruments.13

N/A. UNODC has not undertaken any public consultations to date.14

Yes, see publication of stakeholder comments and proposals throughout the 2011–2013 revision of EITI Standard.15

Yes, see 2012 publication of responses to public consultation on revision of FATF Recommendations.16

Participation

Deliberative meetings open to private sector/ civil society.

No, Working Group on Bribery meetings closed.17

No, subject of controversy.18

Yes, multi-stakeholder structure requires inclusion of private sector and civil society on EITI Board and allows their inclusion as observers.19

No, FATF Plenary meetings may be attended only by Members, Associate Members, and non-Members on ad hoc basis.20

Meetings open to non-member States.

Yes, as ad hoc observers (in 2014, five observer countries attended Working Group meetings: China, India, Indonesia, Malaysia, and Thailand).21

Yes, participants include signatory/observer States, observer States, and entities maintaining permanent observer missions.22

Yes, to the extent that ‘supporting’ as well as ‘implementing’ States represented on Board. Extensive attendance by supporting States as observers.23

Yes, representatives of non-members may attend whole or part of Plenary meetings, by ad hoc invitation.24

Meetings open to regional organizations or other international organizations.

No.25

Yes.26

Yes.27

Yes, FATF-Style Regional Bodies may attend as Associate Members.28

General consultation with private sector/civil society.

Yes, informal consultations take place on yearly basis.29

No.30

Yes, an integral part of the multi-stakeholder structure.

Yes, through the Private Sector Consultative Form.31

Public consultations during review processes.

Yes, 2008 consultation exercise on review of OECD anti-bribery instruments.32

N/A.33

Yes, see 2011–2013 consultation process during revision of EITI Standard.34

Yes, two phases of consultation during most recent revision of Recommendations.35

Consultation with private sector/civil society during on-site visits as part of mutual evaluations.

Yes, they may express their views to Working Group on an informal basis, but not as part of formal evaluation process.36

Yes, encouraged.37

N/A.

Yes, expected.38

(1) Current as of January 2015.

(2) OECD, ‘OECD Guidelines for Multinational Enterprises: Frequently Asked Questions for 2011 Jessup Competitors’ <http://www.oecd.org/daf/anti-bribery/anti- briberyconvention/46510795.pdf>.

(3) UNODC, ‘Travaux préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Corruption’ (UN 2010).

(4) EITI, EITI Strategy Review <https://eiti.org/about/strategy-review>.

(5) 1990 Annual Report of FATF includes the first version of the 40 Recommendations, with no information about their negotiation.

(6) The OECD website includes procedures on self- and- mutual evaluation, the schedules of country examinations and on-site visits, questionnaires for Phases 1–3, terms of reference for the on-site visits during the country examinations, and the final reports for Phases 1–3. ‘Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions’ (26 November 2009, amended on 18 February 2010) C(2009)159/Rev1/FINAL, C(2010)1, art XIV(vii) (follow-up includes the ‘provision of regular information to the public on its work and activities and on implementation of the OECD Anti-Bribery Convention and this Recommendation’); 1997 Revised Recommendation of the Council on Combating Bribery in International Business Transactions (May 1997) C(97)123/FINAL, art VIII(v). OECD, ‘Fighting Corruption: What Role for Civil Society? The Experience of the OECD’ (2003) 13; OECD, ‘OECD Anti-Bribery Convention: Phase 3 Monitoring Information Resources’ <http://www.oecd.org/daf/anti-bribery/anti-briberyconvention/Phase3InformationResourcesManualENG.pdf>. But see OECD, ‘Country Monitoring Principles for the OECD Anti-Bribery Convention’ <http://www.oecd.org/daf/anti-bribery/anti-briberyconvention/countrymonitoringprinciplesfortheoecdanti-briberyconvention.htm> (‘This general responsibility must be balanced against the need for confidentiality which facilitates frank evaluation of performance. If the country being evaluated makes available to the evaluation team information it considers confidential, confidentiality of this information will be respected. Information contained in reports on country performance would remain confidential until it has been declassified. A country concerned could, however, take whatever steps it felt appropriate to release information concerning its report, or to make it publicly available’).

(7) UNODC, ‘Mechanism for the Review of Implementation of the United Nations Convention against Corruption—Basic Documents’ (UN 2011) (containing Terms of Reference of the Mechanism for the Review of Implementation of the United Nations Convention against Corruption, Guidance for governmental experts and the secretariat in the conduct of country reviews, Blueprint for country review reports and executive summaries). See also Governmental Expert Template; Country Pairings for the Review Cycle, and List of Governmental Experts for UNCAC Review Mechanism <http://www.unodc.org/unodc/en/treaties/CAC/IRG.html>.

(8) EITI Standard, EITI Openness Policy. The Validation Guide sets out the external, independent evaluation mechanism for assessing compliance with the Standard, and the Requirements provide further detail on the Validation process. EITI has also published the processes adopted by the stakeholder constituencies for Board nominations. EITI International Secretariat, ‘EITI Constituency Guidelines’ 2 February 2011; The Selection Process of Civil Society Representatives to the EITI International Board (2013–2015) <https://eiti.org/files/EITI-Nomination-criteria-and-process.pdf>.

(9) See eg FATF, ‘Methodology for Assessing Compliance with the FATF 40 Recommendations and the FAFT 9 Special Recommendations’ (27 February 2004, updated as of February 2009); FATF, ‘FATF Reference Document: AML/CFT Evaluations and Assessments, Handbook for Countries and Assessors’ (April 2009). FATF has published its policies on membership and observers. The Mandate of the Financial Action Task Force (2012–2020), annexed to the ‘Annual Report 2011–2012’, provides details on objectives, functions, and tasks; composition and participation; organization; legal effect and duration of the mandate; and accountability.

(10) 2009 Recommendation (n 5) art XIV(i) provides that mutual evaluation reports will be made publicly available. See also the OECD, ‘Country reports on the implementation of the OECD Anti-Bribery Convention’ <http://www.oecd.org/daf/anti-bribery/countryreportsontheimplementationoftheoecdanti-briberyconvention.htm>.

(11) Terms of Reference of the Mechanism for the Review of Implementation of the United Nations Convention against Corruption (n 6) para 37 (‘The country review reports shall remain confidential’).

(12) FATF, ‘Annual Report 2004–2005’ (10 June 2005) para 32.

(13) OECD, ‘Review of the OECD Anti-Bribery Instruments: Compilation of Responses to Consultation Paper’ (31 March 2008).

(14) No indication on website.

(15) EITI, EITI Strategy Review <https://eiti.org/about/strategy-review>.

(17) Working Group Annual Reports give no indication that the private sector or civil society may attend Working Group meetings. By contrast, the reports provide details about attendance by non-member States as ad hoc observers.

(18) According to Rule 17(3)(a) of the Rules of Procedure of the Conference of States Parties, non-government organizations that have observer status with the Economic and Social Council may attend plenary meetings of the Conference. States Parties have been in disagreement as to whether this provision permits observers (States that have not yet ratified the Convention, intergovernmental organizations and non-governmental organizations) to participate in the activities of the Implementation Review Group. In light of this disagreement, the Implementation Review Group requested a legal opinion from the UN Office of Legal Affairs, which advised that Articles 16 and 17 should apply to sessions of the Conference as well as any mechanism or body that the Conference may establish (Rule 2). Conference of the States Parties to the United Nations Convention against Corruption, Implementation Review Group, ‘Legal Opinion from the Office of Legal Affairs: Note by the Secretariat’ (26 August 2010) CAC/COSP/IRG/2010/9.

(19) Articles of Association, arts 10(2), 11.

(20) FATF, ‘Annual Report 2011–2012’ (September 2012) Annex II, Mandate of the Financial Action Task Force (2012–2020) paras 22–23.

(21) OECD Working Group on Bribery, ‘Annual Report 2014’ 28–30.

(22) See eg Conference of the States Parties to the United Nations Convention against Corruption, Implementation Review Group, ‘Resumed Third Session, Vienna, 14–16 November 2012, Final List of Participants’ (16 November 2012) CAC/COSP/IRG/2012/INF.2.

(23) EITI Articles of Association, art 11.

(24) FATF, ‘Annual Report 2011–2012’ (September 2012) Annex II, Mandate of the Financial Action Task Force (2012–2020) paras 22–23. All Members and Associate Members are entitled to attend the open and closed sessions of Plenary Meetings. The President may extend ad hoc invitations to representatives of non-Members to attend the whole or part of Plenary Meetings.

(25) See OECD Working Group on Bribery, ‘Annual Report 2011’ (2012) 35–45. Discussion of Global Relations Activities includes no mention of regional groups attending Working Group Meetings.

(26) Conference of the States Parties to the United Nations Convention against Corruption, ‘Final List of Participants for Resumed Third Session of Implementation Review Group’ (16 November 2012) CAC/COSP/IRG/2012/INF.2.

(27) EITI Articles of Association, art 11. The IMF, the World Bank, and the African Development Bank have, eg, attended Board Meetings as observers.

(28) FATF, ‘Annual Report 2011–2012’ (September 2012) Annex II, Mandate of the Financial Action Task Force (2012–2020), paras 9, 22.

(29) OECD, ‘Consultation on Collective Action in the Fight Against Foreign Bribery’ (10 October 2012) <http://www.oecd.org/daf/anti-bribery/consultationoncollectiveactioninthefightagainstforeignbribery.htm>.

(30) No indication on website.

(31) FATF, ‘Annual Report 2011–2012’ (September 2012) 32–3.

(32) OECD Working Group on Bribery, ‘Consultation Paper: Review of the OECD Instruments Combating Bribery of Foreign Public Officials in International Business Transactions Ten Years after Adoption’ (January 2008).

(33) To date, there have been no review processes for UNCAC.

(34) EITI, EITI Strategy Review <https://eiti.org/about/strategy-review>.

(36) See eg OECD, ‘Phase 3 Country Monitoring of the OECD Anti-Bribery Convention’ <http://www.oecd.org/daf/anti-bribery/anti-briberyconvention/phase3country monitoringoftheoecdanti-briberyconvention.htm>.

(37) Terms of Reference of the Mechanism for the Review of Implementation of the United Nations Convention against Corruption (n 6) paras 28, 30 (‘States parties are encouraged to facilitate engagement with all relevant stakeholders in the course of a country visit’).

(38) FATF, ‘FATF Reference Document: AML/CFT Evaluations and Assessments, Handbook for Countries and Assessors’ (April 2009) para 25 (‘During the on-site visit, examined countries should organize meetings with a range of government Ministries and agencies, as well as the private sector’).

(p.235) (p.236) (p.237) (p.238)