Anti-Corruption Measures: A Comparative
Survey of Selected National and
International Programmes
INTRODUCTION: CORRUPTION AND THE LAW
The term corruption is commonly used to
describe a wide range of social conducts, which
are condemned and rejected by societies all
over the world as dishonourable, harmful and
evil. As the synonymy word can illustrate, the
idea of corruption is associated with some
basic sentiments of rejection: that which is cor-
rupt, is also rotten, contaminated, depraved or
degenerate.
Corruption refers to a wide range of irregu-
larities, ranging from the granting of simple
personal favours or lack of objectivity in the
making of a decision, or simple cases of malad-
ministration, to severe conspiracies which can
sabotage the well being of a nation. Most
importantly, the monies paid and received as
bribes are in most instances the least part of the
resulting damage. Bad or wrong decisions and
choices resulting from corruption can cost a
country its development prospects for years to
come, and amount to hundreds of millions of
dollars in wasted efforts or lost opportunities.
Various types of corruption can be distin-
guished:
First, there is both economic as well as politi-
cal corruption. Economic corruption in the
public sector has traditionally been the focus of
anti-corruption legislation. Every legal system
in the world has its own and comprehensive
history of legislation dealing with this classic
type of corruption, mostly confined to enact-
ments of criminal offences such as bribery.
However, political corruption is arguably a
conduct that is equally if not more undesirable.
An official who disadvantages a citizen
because he believes that citizen to be opposed
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to the political views favoured by himself (or
by the government of the day) is as misguided
in the exercise of his discretion as if he had
allowed himself to be influenced by some per-
sonal economic benefit. To penalise only the
offering and accepting of economic benefits, is
often seen to be inconsistent and lacking in
credibility, where a politically motivated
administrative bias is tolerated or even encour-
aged, sometimes by the same authorities that
are supposed to combat (economic) corruption.
Second, corruption cannot be confined to its
manifestations in the public sector. Private sec-
tor corruption is often the root cause of public
sector corruption. It is normally the private sec-
tor that is economically stronger, and in a posi-
tion to penetrate even the most determined and
upright resistance against corruption in the
public sector. Before a public servant becomes
corrupt and invites a bribe, he must have been
initially corrupted by someone who will nor-
mally not be working as a public servant, but
rather in the private sector, and more often than
not, for a foreign or multinational corporation.
Traditionally, private sector corruption has
been addressed as a matter of good business
ethics and practices and in terms of special leg-
islation, such as laws against unfair business
practices and unfair competition. It has been
widely held that good business practices are
self-regulatory, and are best enforced by the
market forces and competitors themselves, who
would act and enforce good practices in their
own best interests, eliminating those who break
the rules of business, by competing unfairly,
for instance by offering to pay a bribe. It has
also been held for a long time that the legal
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threat of a contract being considered null and
void under common law, by virtue of an
improper (or corrupt) influence or interference
at its outset, would act as a strong deterrent
against private sector corruption.
Developments since the end of the 1970s
show, however, that international organisations
and individual states alike have perceived the
need to counter private sector corruption in a
more decisive and proactive fashion. The trend
today is to (a) criminalise corrupt acts of
private sector officials, even when committed
outside their national jurisdiction, and (b) to
provide special protection and immunity for
employees reporting malpractices and incidents
of corruption. This paper thus concentrates on
four main parts:
• A brief summary of essential general legal
principles that will impact on any measures
destined to combat corruption.
• An illustration of conventional but neverthe-
less innovative criminal law instruments
designed to combat corruption, by way of
reference to legislation adopted in Germany
and Argentina.
• The English example of legislation adopted
to encourage individual resistance against
and reporting of corrupt practices.
• The paper will summarise developments in
the United States (US) and in international
law destined to combat corruption by target-
ing private sector corruption.
1. FUNDAMENTAL CRIMINAL LAW PRINCIPLES
Certain fundamental criminal law principles are
shared by all countries of the civilised world.
“Civilised world”, in this context, means those
nations which are referred to in article 38 (1)
(c) of the Statute of the International Court of
Justice in the Hague, where it is said that “the
general principles of law recognised by
civilised nations” are a source of international
law. Three fundamental criminal law principles
figure among these general principles of law:
First, the principle nullum crime sine lege, i.e.
the requirement that all aspects of punishment,
including preconditions for its imposition as well
as type and severity, must be defined by law.
Second, the principle in dubio pro reo, mean-
ing that anyone will be presumed innocent until
proven guilty, beyond reasonable doubt.
Third, the rights of due process and hearing,
including the prohibition of special or ad hoc
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courts, i.e. essentially the principles of natural
justice.
The above principles are the achievements of
the era of enlightenment, following the French
Revolution, and are today at the core of all
international and national human rights stan-
dards and instruments. A tragic misunderstand-
ing – which has been propagated for some time
at English and South African law schools – is
that continental legal systems would presume
an accused person guilty until proven innocent.
Such reversing of the burden of proof in crimi-
nal proceedings was practised only in the “dark
ages” of the Catholic Inquisition, and perhaps it
has been the characterisation of Continental
criminal procedure as “inquisitorial” (as oppos-
ed to “accusatorial”) which might account for
this fundamental misunderstanding of modern
criminal procedure law beyond common law
jurisdictions.
In modern times, a presumption of guilt has
been practised only in the recently defunct com-
munist countries, as well as by various extremist
dictatorships, mostly for state security purposes,
but also – in the communist world – in the con-
text of crimes of “economic sabotage”.
The important conclusion to be drawn from
the above observations is that the modern day
human rights standards and requirements of the
rule of law impose certain limitations on any
criminal law measures destined to combat cor-
ruption. A state of law can only act in accor-
dance with the material and formal require-
ments of the rule of law. Its moral imperative is
that criminal conduct can only be countered
with strictly lawful means, however great and
severe the need for enforcement may be. Under
no circumstance may the correct notion of jus-
tice and fairness in the law be compromised, as
that would impact negatively on the moral
authority and thereby on the effectiveness of
the administration of justice. In the case of eco-
nomic crime, which will often also manifest
itself as organised crime, such imperatives can
test the means of a legal system to its very lim-
its, calling for ancillary educational, social,
political and economic measures.
2. CONVENTIONAL ANTI-CORRUPTION
LEGISLATION
2.1 Germany
2.1.1 Bribery
In Germany, corruption is dealt with, first and

foremost, in terms of the classic corruption
offenses. The offenses dealing with “passive
bribery” (arts. 331 and 332 of the Penal Code)
punish officials who accept bribes, while the
offenses dealing with “active bribery” punish
persons offering, promising or furnishing a
bribe (arts. 333 and 334 Penal Code). The
object of the legal protection is in both cases
the confidence of the general public in the
objectiveness and integrity of officials.
The German bribery offenses have been legis-
lated with considerably more detail and care
than their counterparts in most common law
countries. As a result, and provided the offences
are effectively prosecuted, both public service
and private sector corruption are targeted when-
ever an administrative decision is involved.
Both in the cases of “passive” and “active”
bribery (as defined above), some important dis-
tinctions can be pointed out. First, the law dis-
tinguishes between cases where the official act
performed is as such lawful on the one hand,
and on the other hand, where, in addition to
being the consequence of bribery, the official
act as such constitutes a breach of any law or
official duty, other than the offense of bribery.
Evidently, the latter cases provide for more
severe punishment.
A second important group of distinctions pro-
vides for immunity from punishment in those
cases where the official has either obtained per-
mission to accept a benefit, or where he has
duly reported the circumstances constituting
bribery. This group of exceptions creates a
strong incentive to report any attempts or cases
of bribery. It also allows for a relatively easy
decriminalisation of borderline cases, which
can be considered acts of mere courtesy or
friendship. In common law countries, in partic-
ular in England, this well established legal tech-
nique has been introduced but very recently
under the somewhat unfortunate heading of
“whistleblowing” legislation.
Finally, it can be noted that all bribery
offenses involving judges or arbitrators carry a
more severe punishment in Germany – the
maximum term of imprisonment in the most
severe group of cases being 10 years’ imprison-
ment.
In addition to the above “classic” bribery
offenses, a number of other provisions in
German law are designed to deal with corrup-
tion.
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2.1.2 Forfeiture of benefits
An important deterrent against corruption
crimes is the instrument of forfeiture and con-
fiscation of the economic gain which has been
obtained by the perpetrator. Forfeiture and con-
fiscation are laid down in ss 73-75 of the Penal
Code.
S 73 deals with forfeiture and reads as fol-
lows:
“Section 73
(1) If an unlawful act has been committed
and the perpetrator or the accessory
acquired any economic gain for or from the
offence, the court shall order its forfeiture.
This rule shall not apply to the extent that
the victim has a civil claim based on the
crime, satisfaction of which would elimi-
nate or reduce the economic gain acquired
by the crime.
(2) The forfeiture order shall cover any ben-
efits derived from the offence. It may also
reach objects which the perpetrator or the
accessory had gotten by disposing of the
acquired object, or as replacement for its
destruction, damage or seizure, or on the
basis of some acquired right.
(3) If the perpetrator or accessory acted for
another, and this other person received the
economic gain, the forfeiture order under
subparagraphs (1) and (2) shall be directed
against him.
(4) The forfeiture of an object shall also be
ordered if it belonged or was owed to a
third party who provided the economic gain
for the offence or otherwise with knowledge
of the circumstances of the offence.”
The perpetrator must have committed an
unlawful act and thus acquired any economic
gain. Economic gain in this context can mean
movable things of any kind, including aircrafts
and ships, as well as fixed property, but also
contractual rights. According to case law, eco-
nomic gain means any increase in the value of
assets.
The forfeiture order does not only cover the
direct economic gain but also any benefits
derived from the offence, paragraph (2).
Section 73a of the Penal Code deals with the
forfeiture of the replacement value. To the
extent that forfeiture of a particular object is not
possible because of its nature, the court shall
order forfeiture of a sum of money equal to the
money of the acquisitions. The court shall make
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such an order in addition to the forfeiture of an
object to the extent that the object’s value falls
short of the value of what was acquired first.
The effect of forfeiture is as laid down in
s 73d of the Penal Code, i.e. the property or
other rights in the object are transferred to the
state when the judgment becomes final. The
rights of any third parties to the object remain
unaffected.
The other specifically economic sanction
against corruption crimes is confiscation.
Section 74 of the Penal Code provides as fol-
lows:
“Section 74
(1) Objects which have been produced
through an intentional crime or which were
used or designed for use in the preparation
or commission of it may be confiscated.
(2) Confiscation is permissible only if:
1. the objects belong or are owed to the
perpetrator or an accessory at the time of
the judgment, or
2. the objects, because of their nature and
the surrounding circumstances, endanger
society, or a danger exists that they will
be used in the commission of unlawful
acts.
(3) Provided the conditions set forth in sub-
paragraph (2) number 2 are met, the confis-
cation of objects is also permissible where
the perpetrator acts without guilt.
(4) If the confiscation is prescribed or per-
mitted by a special provision over and
above that set forth in subparagraph (1), the
provisions of subparagraphs (2) and (3)
shall correspondingly apply.”
Any kind of object can be confiscated, not only
things but also rights, interests in land, or even
claims. The objects must have been either pro-
duced through the crime – producta sceleris –
or used or designed for use in the preparation or
commission of the crime – instrumenta
sceleris. As regards the offenses in office, the
benefit (money) which the government official
rejected can be confiscated because it is not the
object of the criminal offence; the object of the
offenses of ss 333 and 334 Penal Code is the
future performance of an official act, and as
such it cannot be confiscated since s 74 does
not apply to the objects of a criminal offence.
2.1.3 Procedure
In addition to the above characteristics of
8
German penal law, procedure is of course cru-
cial. The most import general feature of
German criminal procedure is that which is
often referred to, in common law countries, as
the inquisitorial principle. The German concept
is the ex officio or legality principle, meaning
that all acts and measures of the prosecution (or
the police, acting as agents of the prosecution),
are carried out on the basis of own initiative,
and that the police and the prosecution do not
have discretion in deciding whether to prose-
cute or not.
Thus, whenever there is reasonable indication
that a criminal offence has been committed, the
police and the prosecution are under a duty by
law to conduct an investigation, and if the
investigation produces reasonable certainty that
a crime was committed, the prosecution is
obliged to submit an indictment to the compe-
tent court. Similarly, the trial court is empow-
ered to make any suitable orders, and to lead its
own evidence, and is not dependent on being
petitioned to do so by either the prosecution or
the accused. Generally, a suspect will have to
tolerate most measures adopted by the prosecu-
tion for the purposes of their investigation, as
the remedies available to resist questioning,
seizure of potential evidence, warrants or
detention pending trial, will only protect the
suspect against gross abuses of discretion or
substantial failure of the prosecution to follow
procedures prescribed by law. The protection of
the rights of a suspect are generally deferred to
the trial stage. To illustrate this, it may help to
point out that a suspect who has been detained
pending trial may demand payment of certain
fixed amounts of compensation in the event of
an acquittal.
Finally, it should be noted that the German
Judicature Act (Gerichtsverfassungsgesetz –
GVG) makes special provision for cases involv-
ing business offenses. Section 74c (1)(6) GVG
provides that criminal offenses such as, inter
alia, offering a bribe – s 333 of the Penal Code
– and offering a bribe to induce a violation of
duty – s 334 of the Penal Code – shall fall
under the jurisdiction of a particular division of
the courts (the Division for Economic Offens-
es), whenever the prosecution deems that the
assessment in law of the offense requires spe-
cial knowledge of economic activities or busi-
ness transactions.
The special knowledge of and experience in

business transactions with which the Division
for Economic Offenses must be equipped
relates to the particular rules and procedures in
business life. The judges of the courts’ Division
for Economic Offenses normally have the
required background knowledge about business
activities and transactions. They will normally
have acquired special qualifications in book-
keeping, accounting or tax law, and will be
familiar with financial statements and balance
sheets.
Similarly, the prosecution offices will have
own divisions dealing exclusively with crimes
of corruption, and may ad hoc enlist the assis-
tance of experts, such as chartered accountants
or tax consultants.
2.2 Argentina
Turning to Argentina, the first pertinent con-
trast is that the country and its legal system did
not benefit – as in the case of Germany – from
decades of economic, social and political stabil-
ity. On the contrary, after a succession of mili-
tary and civilian governments since World War
II, Argentina as a nation collapsed economical-
ly during the 1980s, when inflation reached an
all-time high of more than 4000% a year.
Together with financial chaos, the country’s
huge foreign debt (rescheduled unsuccessfully
over the years) provoked an ever growing and
grossly inefficient and helpless state apparatus.
Under such circumstances, irregularities and
corruptive practices became a way of life.
Argentina can thus serve as a pertinent example
of a nation that was successful in completely
turning around the disastrous direction of its
public affairs, and attaining an astounding eco-
nomic recovery in a matter a few years.
Argentina’s reform administration took office
in 1989. A mere three years later, in 1992, eco-
nomic growth increased to a net 6% of gross
domestic product (GDP), inflation was con-
tained at 17% and the national currency – the
peso – had been stabilised at one to the US dol-
lar, with all exchange control regulations hav-
ing been lifted. What was the recipe for
Argentina’s miracle?
It is clear, more than 10 years on, that the key
to success in 1989 was that the new govern-
ment did not hesitate in identifying and con-
fronting the country’s two main problems:
namely, the disastrous economic situation and
the dismantling of the so-called “culture of cor-
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ruption”, manifested especially within the pub-
lic sector. At the opening of Parliament on 1
May 1990, the newly elected president declared
that the main obstacle to be overcome by his
administration would be “a knot in which
bribery, daily thefts, pressure groups and
enclaves of feudal privilege are entangled”. The
president stated that honesty in the public func-
tion was essential to preserve democracy, as
was the trust of the population in the personal
capacity and integrity of public officials. He
further qualified administrative corruption as a
“truly criminal action” and vowed to equate its
treatment to “treason against the nation”.
In order to curb corruptive practices, the gov-
ernment set out, first, to dismantle the “web of
corruption” by breaking down existing eco-
nomic and financial structures, and to reorgan-
ise the public sector. To this effect, a combina-
tion of measures were adopted:
• the progressive re-regulation of the economy
• the cutting of government spending and sub-
sidies
• the lowering of tariffs in order to increase
trade
• an aggressive campaign destined to compel a
wide range of tax-payers – from big enter-
prises to ordinary citizens – to comply with
the existing tax legislation, thus reducing an
alarmingly high level of tax evasion. Specific
legislation was passed to this effect, in terms
of which the control office Auditoría Fiscal
within the Revenue Authority (Dirección
General Impositiva) was given ample powers
to investigate tax irregularities.
A crucial part of the government’s economic
reform was the privatisation programme,
designed to sell a large number of almost bank-
rupt and grossly bureaucratic state monopolies,
among them, the national oil company, railway
lines, telephones, gas, electric power, water and
the national airline. Furthermore, Parliament
enacted in 1991 the so-called “Convertibility
Law” which made the national peso freely con-
vertible to the US dollar (on a fixed rate of one
to one), thus ending years of exchange control
regulations in Argentina. The law prohibited
the National Treasury to print money not
backed by hard-currency reserves or gold.
Legislation was also passed to truly and uncon-
ditionally encourage foreign investment. A
treaty with Argentina’s most important trade
partner, the US (the Treaty on Reciprocal
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Encouragement and Protection of Investments
between Argentina and the US) was of crucial
importance for restoring private sector confi-
dence in the future of the country.
It is clear from these few observations that
Argentina embarked on a most comprehensive
policy to combat economic decline and corrup-
tion, and that specific criminal law reforms
were just one of the many interdependent mea-
sures within this context. Anti-corruption legis-
lation, however, played a crucial part.
2.2.1 Legislation against corruption
As in the case of Germany, the “classic corrup-
tion offences” (such as active and passive
bribery) are stipulated in Argentina’s Criminal
Code (Código Penal de la Nación – chapters 4
to 9 bis, arts 248 to 269).
Chapter 8, art 265 provides for the crime of
Business Matters or Transactions which are
Incompatible with Public Office.
The provision is rather original and deserves
being quoted:
“Art 265: A public official who, by himself
or through another person, directly or indi-
rectly i.e. by an action carried out to conceal
the true action (acto simulado), becomes
involved personally in any dealings (con-
tract or any other business transactions)
with the government performed in his offi-
cial capacity shall be liable to imprisonment
for a period of two to six years and suspen-
sion from public office for a period of three
to ten years. The same applies to any person
entrusted with the custody, conservation,
administration or partition of property
belonging to a third party.”
Chapter 9, arts 266 to 268 provides for the spe-
cial crimes of extortion and intimidation com-
mitted by public officials, as particularly severe
incidents of bribery. The provisions read:
“Art 266: Any public official who illegally
demands from any person (for himself or
any other person) a reward, contribution or
any other financial benefit, or charges
excessive fees shall be liable to imprison-
ment for a period of one to three years and
suspension from public office from one to
five years.
Art 267: If the official falsely relies on or
invokes an administrative order or decision
or a judicial order for the purposes of the
above provision, he shall be liable to
10
imprisonment for up to four years and sus-
pension for up to six years.
Art 268: If the public official collects the
money or excessive fees for himself or any
other person he shall be liable to imprison-
ment for a period of two to six years and
suspension from public office for life.”
Chapter 9bis is dedicated to yet another group
of special offenses of unlawful or illicit enrich-
ment of public officials:
“Art 268(1): (Using confidential informa-
tion for own benefit) A public official who
uses confidential information made known
to him in his official capacity for his per-
sonal profit or benefit shall be liable to the
punishment established in art 256.
Art 268(2): (Unjustified substantial enrich-
ment/increase in financial resources) A
public official who, after being duly
requested to do so, does not or cannot justi-
fy the source or origin of a substantial
increase in his financial resources (enrique-
cimiento patrimonial apreciable) occurred
after entering in public office shall be liable
to imprisonment for a period of two to six
years and suspension from public office for
three to ten years. The evidence presented
by the accused in order to clarify his finan-
cial position shall be kept confidential. If a
third party (persona interpuesta) is involv-
ed, this person shall be liable to imprison-
ment for two to four years.”
The first situation contemplated in this section
(art 268(1)) does not require the verification of
an economic benefit. Rather, the offense con-
sists in using confidential information to which
the individual has access in his official capaci-
ty, with the purpose of obtaining such econom-
ic benefit. A public official who, knowing that
the implementation of import restrictions for
certain products would push up their prices
internally, monopolises the market; or the offi-
cial who buys real estate property in a certain
area knowing of development projects to be
implemented which would increase the market
value of the property, constitute clear examples
of actions contemplated in this article.
Art 268(2) was specifically designed to deal
with the problematic aspect of proof in corrup-
tion investigations. Corruption in the public
service is difficult to prove. Bribery, abuse of
authority, extortion, embezzlement and other
corruptive practices are frequently carried out

in subtle, sophisticated ways, through simulated
acts and with third parties acting as intermedi-
aries. Furthermore, the use of modern computer
technology for criminal purposes has become
increasingly common: offenders can enter com-
puter networks and create accounts, move
money or eliminate existing records of financial
obligations.
In order to facilitate a criminal investigation
on charges of corruption, art 268(2) has invert-
ed the onus probandi where a substantial
increase in the financial resources of a public
official is suspected. In this case, it is the
accused who must prove to the court that such
increase originates in lawful activities or cir-
cumstances.
For the purpose of more effective implemen-
tation of art 268(2) of the Criminal Code
described above, the government enacted
Decree-Law No. 1639/89. This regulation made
it compulsory for public officials holding cer-
tain – mostly senior rankings – in the Adminis-
tration to fill in and submit a comprehensive
written declaration of personal property and
assets, which is to be renewed periodically.
A written declaration must be submitted by
the public official concerned within 30 days of
his appointment or promotion in public office,
or upon termination or discontinuance of
duties. It must contain, in extensive detail, the
description of the following assets, wherever
situated, and whether belonging to the appli-
cant, his spouse or minor children. The proper-
ty and assets included are: any immovable
property; any registered movable property
(bienes muebles registrables) such as motor-
cars, vessels, yachts, aeroplane, etc.; other valu-
able movable property such as technical equip-
ment and the like, jewellery, art objects or orna-
ments, livestock for breeding or farming, etc.,
when these assets are of substantial value;
stock, share or capital investments; any invest-
ments in large or small industries, holdings or
other commercial ventures; mortgage bonds,
bank credits or loans secured by pledge; per-
sonal income, any other earnings and deduc-
tions; and particulars and means of livelihood
of the closest relatives of the applicant (pari-
entes por consanguinidad en línea recta). The
information contained in the declaration of
assets is strictly confidential, and shall be kept
in the custody of the State Notary Public Office
(Escribanía General de Gobierno).
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As a general rule, the information submitted
in the declaration must be updated every three
years. However, in the case of a substantial
increase in the financial resources of either the
applicant, his spouse or closest relatives (as
specified in the regulation), by whatever means,
a new declaration must be submitted within 30
days.
The non-observance of these regulations
entails administrative sanctions and the initia-
tion of administrative proceedings to investi-
gate the matter fully. The offender is also crim-
inally liable for inaccuracies or omissions in the
information submitted. A preliminary investi-
gation is conducted within the sphere of the
competent administrative department. If unlaw-
ful action is suspected, a specific body, the
Fiscalía de Investigaciones Administrativas –
which is the government’s corruption monitor-
ing office – may investigate further and initiate
criminal proceedings based on corruption
charges.
It is clear that Argentina’s reform administra-
tion since 1989 succeeded in modernising exist-
ing anti-corruption offences, and in introducing
some very innovative, pragmatic and effective
measures to control any unexplained growth in
personal wealth (directly or indirectly) of pub-
lic officials and persons holding a senior public
office.
2.2.2 Procedure
Regarding procedure, Argentina went further
than, for instance, Germany, by establishing
special Criminal Courts for Economic
Offenses, which are supported by specific divi-
sions of the prosecution authorities entrusted
with the investigation of corruption offenses.
The Argentine Federal Code of Criminal
Procedure was extensively amended in July
1991, in order to give greater importance to
oral and public proceedings. However, and in
line with the continental heritage of the
Argentine legal system, criminal proceedings
are still essentially “inquisitorial” (as opposed
to the accusatorial model of the common law),
giving the courts a significantly more active
role than in the common law system. As in the
case of Germany, the criminal court has ample
powers to investigate fully the matter, seek evi-
dence and control the nature and objective of
the entire proceedings.
More specifically, a typical investigation is
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opened ex officio (either by the public prosecu-
tor or the judicial police), as a result of a report
filed by the victim or by any member of the
public who has witnessed the commission of a
crime or simply because the relevant circum-
stances are otherwise known (arts 174, 195
CCP).
The first phase is primarily written and is
secret during the first 10 days, except for the
parties and counsel. Its objectives are to verify
the commission of the crime, to gather all nec-
essary evidence leading to a possible convic-
tion, to find out the identity of the perpetrators
and to dictate all necessary measures to appre-
hend the accused and render him liable for any
civil claims (damages) arising out of a criminal
conduct. While, to this effect, the previous
Code instructed the court to order “all neces-
sary measures”, the new legislation provides
that the judge may conduct the investigation
himself or may delegate this power on the pros-
ecution (art 196 CCP). Whether it is the court
itself or the prosecution who conducts the
investigation, it must proceed according to the
rules established by title III of the Code for the
production of evidence (“Medios de prueba”,
arts 216 et seq CCP). Here, the Code contem-
plates the declaration of the accused (declar-
ación indagatoria) and the reception of evi-
dence, in the form of, among others, testimonial
evidence, criminal confession, documentary
evidence, presumptions and circumstantial evi-
dence. In general, the court is given ample
powers to investigate the matter fully.
The instruction or investigative period of the
case is concluded when the conclusions submit-
ted to the competent court will satisfy the judge
or judges that there is sufficient evidence to
rule on either transferring the case to the next
stage (oral proceedings, trial) or to declare a
provisional or definitive dismissal (arts 334,
346 CCP).
Generally, the function of the trial period
(plenario) is to present the case to the trial
court and to allow the prosecution and the
defend-ant’s counsel to argue their cases. The
court must submit the written record of the first
stage (instrucción) for consideration and revi-
sion by the state prosecutor, who must decide
whether to prosecute and file a formal accusa-
tion. If not, the case is dismissed (arts 346 et
seq CCP).
Once the indictment has been received, the
12
court notifies the accused and the prosecutor
and fixes a period of 10 days for the parties to
examine the records and offer additional evi-
dence such as oral testimony (prueba de testi-
gos) and expert witnesses (prueba pericial; arts
354, 355 CCP). This opens the trial stage of the
case which comprises three aspects:
• the pre-trial measures (actos preliminares)
i.e. examining of records and proof-offering
• the debate, which is oral, public, contradicto-
ry and continuous
• the sentence or decision (arts 396 et seq
CCP).
Trial court decisions may be reviewed by the
Court of Appeals or the Court of Cassation (arts
432 et seq) and, in certain circumstances, by the
Supreme Court as the court of last resort.
3. THE UK PUBLIC INTEREST DISCLOSURE ACT
The United Kingdom’s (UK’s) Public Interest
Disclosure Act (PIDA) 1998 came into effect
on 2 July 1999. This Act gives legal protection
to workers who disclose or report malpractice
or wrongdoing by their employers or other third
parties against dismissal or victimisation.
As summarised by the organisation Public
Concern at Work (see: http://www.pcaw.
demon.co.uk/main.html) the Act:
• applies to every factory, hospital, Whitehall
department, charity, office, shop and quango
in the UK
• covers workers who raise genuine concerns
about the mistreatment of patients, financial
malpractice, miscarriage of justice, breach of
the civil service code, abuse in care, dangers
to health and safety, risks to the environment,
and cover-ups
• protects public interest whistleblowing to
regulators, the media and MPs
• guarantees full compensation with the
promise of penalty awards if the whistle-
blower is sacked.
The measure – which was supported by govern-
ment, opposition and business – is a response to
recent disasters and scandals in the UK, such as
Bristol Royal Infirmary heart operations, North
Wales child abuse, Matrix Churchill, Maxwell,
Clapham Rail and Zebrugge. Time and again
the official enquiries revealed that workers had
been aware of the real dangers but had been too
scared to sound the alarm.
The Act promotes accountability in the pub-
lic, private and voluntary sectors by encourag-

ing people not to turn a blind eye to malpractice
in the workplace and through its strong sanc-
tions which will help ensure that organisations:
• address the message rather than the messen-
ger
• resist the temptation to cover up serious mal-
practice.
It does this by promoting public interest as it
protects whistleblowers from dismissal and vic-
timisation in the following circumstances:
3.1 Malpractice
The law applies to people at work raising gen-
uine concerns about crime, illegality, (including
negligence, breach of contract, breach of
administrative law), miscarriage of justice, dan-
ger to health and safety or the environment and
the cover up of any of these. It applies whether
or not the information is confidential and
whether the malpractice is occurring in the UK
or overseas.
3.2 Individuals covered
In addition to employees, it covers trainees,
agency staff, contractors, homeworkers and
everyone involved in the National Health
Service (NHS).
The usual employment law restrictions on
minimum qualifying period and age do not
apply to this Bill. It does not cover the genuine-
ly self-employed, volunteers, the intelligence
services, the army or the police. (Note: The
government has undertaken to give the police
equivalent protection.)
3.3 Internal disclosures
A disclosure to a manager or the employer will
be protected if the whistleblower has an honest
and reasonable suspicion that the malpractice
has occurred, is occurring or is likely to occur.
Where a third party is responsible for the mal-
practice, this same test applies to disclosures
made to him. It also applies where someone in
the NHS or a public body blows the whistle to
the sponsoring department.
3.4 Regulatory disclosures
The Act makes a special provision for disclo-
sures to prescribed bodies. These are likely to
be regulators such as the Health and Safety
Executive and the Financial Services Authority.
Such disclosures will be protected where the
whistleblower meets the tests for internal dis-
13
Thomashausen
closures and, additionally, honestly and reason-
ably believes that the information and any alle-
gation in it are substantially true.
3.5 Wider disclosures
Wider disclosures (e.g. to the police, the media,
and non-prescribed regulators) are protected if,
in addition to the tests for regulatory disclo-
sures, they are reasonable in all the circum-
stances and they are not made for personal
gain.
There are two parts to this reasonableness
test. First, unless the whistleblower reasonably
believed he/she would be victimised, the con-
cern must have been raised with the employer
or a prescribed regulator. This requirement
does not apply if the matter is exceptionally
serious. Nor does it apply where there is no pre-
scribed regulator and the whistleblower reason-
ably believed there would be a cover-up.
If these provisions are met and the tribunal is
satisfied that the disclosure was reasonable, the
whistleblower will be protected. In deciding the
reasonableness of the disclosure the tribunal
will consider the identity of the person it was
made to, the seriousness of the concern,
whether the risk or danger remains, and
whether it breached a duty of confidence the
employer owed a third party. Where the con-
cern has been raised with the employer or a
prescribed regulator, the tribunal will also con-
sider the reasonableness of their response.
3.6 Full protection
Where the whistleblower is victimised or dis-
missed in breach of the Act he/she can bring a
claim to an employment tribunal for compensa-
tion. It is expected that awards will be uncapp-
ed and based on the losses he/she suffers.
Where a whistleblower is sacked, he/she may
apply for an interim order keeping his/her job.
3.7 Gagging clauses
Gagging clauses in employment contracts and
severance agreements are void insofar as they
conflict with the Act’s protection.
3.8 Secrecy offences
Where the information is also covered by the
Official Secrets Act or another secrecy offence,
the whistleblower will lose the protection of the
PIDA if a jury has found him/her guilty or if a
tribunal is satisfied – effectively beyond rea-
Thomashausen
sonable doubt – that he/she committed an
offence.
4. THE US’s FOREIGN CORRUPT PRACTICES ACT
(1977) AND THE OECD CONVENTION ON
COMBATING BRIBERY OF FOREIGN
PUBLIC OFFICIALS IN INTERNATIONAL
BUSINESS TRANSACTIONS (1997)
When the American Foreign Corrupt Practices
Act (FCPA) became law over 20 years ago its
provisions were so broad that initially some
500 companies admitted violations as part of an
amnesty programme. As a result, and fearing
constitutional challenges, the law was largely
ignored by regulators and was simply no longer
enforced. It was finally amended in 1988 and
has since then become the main precursor of a
very similar new international anti-corruption
drive at the level of the Organisation for Econo-
mic Cooperation and Development (OECD).
Since the mid-1990s, the FCPA is being
enforced again in the US, probably in response
to increased public outcries and International
Monetary Fund (IMF) and World Bank criti-
cism levelled against large-scale corruption
scandals involving American multinational cor-
porations and affecting development and
human rights on an unprecedented scale. In
1995, Lockheed paid a nearly $25 million fine
for improper payments relating to contracts in
Egypt and, for the first time, a businessman was
sentenced to jail for violating the Act. In
February 1997, the Securities and Exchange
Commission (SEC) pursued its first FCPA
charges in 11 years by enjoining Triton Energy
Corporation and fining it $50 000 for payments
in Indonesia. However, other corporations, such
as Enron have remained “untouchable”, despite
their well documented corrupt dealings in
India’s Maharashtra state (in an extensive 1999
report by Africa Watch).
The essential provisions of the FCPA prohib-
it any US corporation or person in the employ-
ment of such corporation from making pay-
ments, directly or indirectly, to foreign govern-
ment officials in order to obtain or retain busi-
ness. Companies, officers and directors risk
expensive and disruptive investigations, crimi-
nal and civil sanctions, and private lawsuits if
they fail to take the steps necessary to avoid
prohibited payments. The US Department of
Justice (DOJ) can bring criminal charges and
the SEC has the authority to impose fines and
injunctions.
14
Criticism against the Act argues that it pun-
ishes some conduct that is hard to distinguish
from ordinary and legal business transactions.
Moreover, what the Act considers illegal for
US companies is often legal, or even tax
deductible, if done by foreign companies. To
the contrary, US companies and their officials
have become criminally liable in the US for
their conduct anywhere in the world, according
to US standards. It is not sufficient for them to
just obey local laws and to follow local custom.
The consequences can be severe, and those who
fail to act in accordance with the FCPA risk
denunciation in the US by competitors or dis-
gruntled own employees.
Understandably, FCPA enforcement has been
made conditional by the Clinton Administration
upon similar legislation being adopted and
enforced by America’s main competitors, the
major European powers and Brazil, which is
what the OECD Convention on Combating
Bribery of Foreign Public Officials in Interna-
tional Business Transactions of 1997 is about.
Moreover, the original FCPA provisions have
been considerably “softened” by subsequent
amendments of the Act. The FCPA today con-
tains two exemptions that make it relatively
easy for US companies and their officials to
avoid prosecution. First, the requirement that
the bribing official had to have had “reason to
know” that he was bribing a foreign government
official was tightened and now reads that the
bribing official must have had “actual knowl-
edge” – a requirement that is far more difficult
to prove for a prosecuting authority in the US.
Second, the exemption of “facilitating pay-
ments” (which do not constitute a prohibited
payment) was considerably widened and now
includes any payments made to obtain “routine-
ly governmental action”, where such action is
interpreted to mean “ordinarily and commonly
performed actions which do not include govern-
mental approvals involving the exercise of dis-
cretion by a governmental official” (see B C
George, K A Lacey & J Birmele, “On the
threshold of the adoption of global antibribery
legislation” in: 32 (1999) No 1 Vanderbilt
Journal of Transnational Law, 1-48 at 9).
Measures to curb bribery and corruption have
nevertheless been placed firmly on the interna-
tional agenda. All 29 OECD countries
(Australia, Austria, Belgium, Canada, Czech
Republic, Denmark, Finland, France, Germany,

Greece, Hungary, Iceland, Ireland, Italy, Japan,
Korea, Luxembourg, Mexico, the Netherlands,
New Zealand, Norway, Poland, Portugal,
Spain, Sweden, Switzerland, Turkey, the
United Kingdom and the United States) as well
as five non-OECD countries (Argentina, Brazil,
Bulgaria, Chile and Slovak Republic) have
signed the OECD Convention on Combating
Bribery in International Business Transactions
and are now implementing tough new legisla-
tion against transnational bribery.
The Convention represents an important step
in the concerted international effort to crimi-
nalise bribery and reduce the rampant corrup-
tion in world economies. It aims to stop the
flow of bribe money for the purpose of obtain-
ing international business deals and to strength-
en domestic anti-corruption efforts aimed at
raising standards of governance and increasing
civil society participation.
The OECD first put international corruption
on its agenda in 1989 and later evolved two
basic objectives for its work: to fight corruption
in international business; and to help level the
competitive playing field for all companies.
After several years spent analysing the nature of
corruption in international business and study-
ing the measures that countries might take to
combat it, OECD countries agreed in 1994 on
an initial Recommendation on Bribery in Inter-
national Business Transactions. Subsequently,
in May 1996, they adopted a Recommendation
on the Tax Deductibility of Bribes to Foreign
Public Officials. In May 1997, a revised
Recommendation on Combating Bribery in
International Business Transactions was adopt-
ed.
Based on the recommendations, but also
upon on discussions under way since 1995,
OECD countries and several non-members,
negotiated the 1997 Convention on Combating
Bribery of Foreign Public Officials in Interna-
tional Business Transactions. The Convention,
which came into force on 15 February 1999, is
open to accession by non-OECD members
states. As mentioned above, the non-member
signatories are Argentina, Brazil, Bulgaria,
Chile and the Slovak Republic, and all 29
OECD member countries have signed it.
The Convention targets the offering side of
the bribery transaction. It is essentially an effort
to eliminate the “supply” of bribes to foreign
officials, with each country taking responsibili-
15
Thomashausen
ty for the activities of its companies and what
happens on its own territory. The Convention
provides a broad, clear definition of bribery,
requires countries to impose dissuasive sanc-
tions, and provides for mutual legal assistance.
It also encourages coordination between coun-
tries through regular working contact in the
OECD Working Group on Bribery and calls on
signatories to carry out a programme of follow-
up to monitor and fully implement the
Convention.
The aims of the Convention are reinforced by
three OECD recommendations. The 1997
Revised Recommendation on Combating
Bribery in International Business Transactions
sets out measures which countries should take
in the fields of accounting, public procurement,
and criminalising bribes to foreign public offi-
cials.
These measures require companies to main-
tain adequate accounting records, adopt internal
company controls, and undergo external audits.
In the area of public procurement, it is recom-
mended that companies found guilty of bribing
foreign officials be suspended from future pub-
lic contract bids. Further, countries should
cooperate in investigations and other legal pro-
ceedings in order to prosecute efficiently cases
in which foreign public officials have been
bribed.
The Revised Recommendation also urges
prompt implementation of the 1996
Recommendation on Tax Deductibility of
Bribes to Foreign Officials which calls on
countries to disallow the deductibility of bribes
to foreign public officials. The OECD Fiscal
Committee surveys compliance with this instru-
ment and recently reported that by the end of
1999, there should be no OECD country left
that allows such tax deductibility.
The 1997 Revised Recommendation on
Combating Bribery in International Business
Transactions also incorporates the proposals of
the Recommendation to Combat Corruption in
Aid-Funded Procurement which calls on coun-
tries to require anti-corruption provisions in
bilateral aid-funded procurement.
Finally, the aims of the Convention are rein-
forced by the 1998 Recommendation on Im-
proving Ethical Conduct in the Public Service,
which calls on countries to take action to ensure
well-functioning institutions and systems for
promoting ethical conduct in the public service,
Thomashausen
and the work of the Financial Action Task
Force on Money Laundering which is an inter-
governmental body whose purpose is the devel-
opment and promotion of policies to combat
money laundering.
Detailed information on the status of national
implementation of the convention is given in
Annex V below.
CONCLUSION
It is not an easy task to suggest firm conclu-
sions on the basis of a very brief exposition of
this nature, on a matter as complex as the pre-
sent one.
The first observation which comes to mind is
that the comparison between Germany and
Argentina shows that under relatively stable
and even ideal circumstances, it is perfectly
sufficient to rely on the criminalisation of the
classic offensives of active and passive bribery,
and to ensure that the prosecution and the
courts are adequately equipped, both in terms
of their powers and their actual expertise, to
deal with modern crimes of corruption. The
principles of inquisitorial criminal procedure
offer obvious advantages in this regard.
Incentives to report corruption crimes, includ-
ing rewards and state witness privileges are
always effective in respect of crimes which
involve greed and more than one perpetrator, as
most commonly the greed of at least one of the
perpetrators will cause him to feel disadvan-
taged and revengeful. The remarkable success-
es of the South African Diamond Branch in
past decades could serve as a model in this
respect.
The second obvious conclusion is that the
example of Argentina demonstrates how an
escalation of crimes of corruption will call for
the enactment of additional and more specific
criminal offenses and procedures. Most remark-
able is the recent introduction in Argentina of
special auditing procedures at regular intervals
for the personal finances of public officials.
It must also be borne in mind, however, that
the success of the Argentine recovery from
maladministration and widespread corruption
can only be ascribed to a very limited degree to
the legislative measures introduced. The turn-
ing around of the nation was achieved mainly
by a concerted economic reform programme
which reduced substantially the actual opportu-
nities for corrupt practices, by actually disman-
16
tling and breaking down the old and established
political, economic and personal networks of
influence, dependence and control.
Monopolies, whether public or private, and
whether political or economic, are the single
greatest cause of corruption. Officials operating
within a de facto monopoly do not have to fear
the scrutiny of competitors. Where a heavily
centralised and monopolistic economy coin-
cides with an equally monopolistic political
system, the country will also lack a sufficiently
independent and influential public opinion.
Where politics are perfectly shielded from pub-
lic opinion, one will find that officials are at
liberty to misuse their authority for financial or
political gain. And where single business enter-
prises can dominate their markets, or state
owned conglomerates remain unaccountable to
the public, one will find that very little manage-
rial discipline and personal honesty will exist.
If such circumstances are coupled with per-
sistent recession, a complete loss of the confi-
dence of international business in the country,
depreciation rates of the national currency in
excess of the inflation rate, unemployment of
up to 50%, impoverishment of the middle class-
es and public servants, widespread insecurity
and fear, than there is very little hope that leg-
islative measures alone could have an impact
on corruption.
A tradition of political domination by one
particular political elite will normally also con-
tribute to a lack of transparency and account-
ability and thereby corrupt the very ideal of the
rule of law. This will normally provoke
increased arbitrariness of the administration
and political domination of the economy.
Ultimately, such a trend leads to the destruction
of the civic sense of the average citizen, and
will dry up statesmanship at its source, which
are the people.
Where too many citizens remain without an
effective voice for too long, and have no say in
their own future, and no means to express their
concerns, violence by active minorities and
passive resistance by the masses are the
inevitable result.
It is perfectly normal that under such circum-
stances the most enterprising and innovative
forces in a country lose their interest in public
affairs and in the government, and rather spend
their energies in the pursuit of gain at any cost,
or private amusements, or power games with-

out a common goal or purpose.
Under such circumstance, economic recovery
alone cannot restore civic sense and honesty.
Improved living conditions as such will not sat-
isfy the need for participation in the affairs of
the community and the nation.
Only an open society, based on free econom-
ic and democratic political competition will be
capable of overcoming despondency, of restor-
ing the faith and civic sense of officials and
managers alike.
Both the examples of Germany and
Argentine have shown that the moral healthi-
ness of a society is the first condition for the
successful implementation of the laws destined
to deter from and punish corrupt practices. Both
examples also show that the second condition is
a generally unbiased and fair conduct of the
administration, and a non-selective general law
enforcement in respect of all laws including
even traffic and public order laws – but espe-
cially taxation laws – provided a good measure
ANNEX I: GERMAN LEGISLATION NOT QUOTED IN TEXT
(Translations quoted from: JJ Darby, The Penal
Code of the Federal Republic of Germany,
Littleton/Coll.:London, 1987, p 239).
“Section 331
(1) Any government employee or person
specially obligated for a public function
who demands, permits to be promised to
him or accepts any benefit as the price for
his past or future performance of an official
act shall be punished by up to two years’
imprisonment or by fine.
(2) A judge or arbitrator who demands, per-
mits to be promised to him or accepts any
17
Thomashausen
of fairness and realism has been restored in
those same laws.
Finally, the UK example on “whistleblow-
ing” legislation illustrates how a careful combi-
nation of procedural measures and enactments
of legal principles can curb a mentality of cor-
ruption and public despondency in regard there-
to, while avoiding unnecessary criminalisation.
In contrast, the recent South African “Open
Democracy Bill”, although purporting to
achieve similar goals, is an essentially misdi-
rected piece of legislation that will protect fur-
ther and increase official secrecy under the
guise of wishing to combat corruption and mal-
administration.
Regarding international developments, the
OECD convention is the most important (of
several other, unmentioned) modern develop-
ments. The OECD convention is open to signa-
ture by non-OECD member states, thus allow-
ing any country to accede and thereby make a
clear and visible statement of its willingness to
benefit as the price for his past or future
performance of a judicial act shall be pun-
ished by up to three years’ imprisonment or
by fine. The judge is punishable.
(3) Conduct falling under subparagraph (1)
shall not be punishable if the offender per-
mits to be promised to him, or accepts, a
benefit which he has not demanded, and the
competent authorities have, within the
scope of their authority, either previously
approved the acceptance or, after the bene-
ficiary has promptly reported it to them,
subsequently granted approval for the
acceptance.”
Thomashausen
Explanation
The taking of a bribe is the basic form of a
crime in office (Jescheck, in: Strafgesetzbuch
Leipziger Kommentar, 10th ed, vol 4, 1988,
introduction to s 331, no 1). The offender must
be either a holder of an office (paragraph 1) or
someone who serves as a public servant, or a
judge or an arbitrator (paragraph 2). The pun-
ishable act can be the demand, or the permis-
sion to be promised, or the acceptance of any
benefit. The demand can be brought forward
either in a direct or in an indirect form, as long
as the offender makes clear that the benefit
which he offers to the official shall be the price
for a past or future performance of any official
act (criminal case law of the Supreme Court of
the German Reich RGSt 77, 76). It is, however,
not necessary that the official gives his assent
to the benefit that was offered to him (Leipziger
Kommentar, supra, s 331, no 4).
The official’s permission to be promised any
benefit to him means that he accepts the offer
made to him as consideration for the official act
which he has to perform. It is possible for the
offer and the acceptance to be made explicitly
or tacitly or by implied conduct (RGSt 39, 177).
The acceptance of the benefit means the actual
acceptance of the benefit, and the official must
accept such benefit for himself. It is not suffi-
cient if he accepts it on behalf of a colleague
(criminal case law of the Federal High Court –
BGHSt 14, 123, at 127).
Benefit in terms of s 331 can be defined as
any financial benefit irrespective of the amount
of money that is involved. Even the acceptance
of items of small value qualifies as an accep-
tance of a financial benefit, except in those
cases where such items are normally exchanged
as a matter of courtesy and not as a kind of ben-
efit in terms of s 331 of the Code (Dreher/
Tröndle, Strafgesetzbuch, 44th ed. 1988, s 331,
no 11).
It is necessary that the government employee
or any other official person performs an official
act which forms part of his duties as an official.
If the official performs an act which does not
fall within the range of his duties of an official,
such act has to be classified as a private act
(Letzgus, Der Begriff der Diensthandlung,
NStZ 1987, 309-311, at 310). The important cri-
terion for an official act is that the act already
performed in the past or to be performed in
future does refer to the official’s duties. If the
18
official performs an act which does not refer to
his function as a public official, even if such act
is performed in the official’s office and during
his official working hours and by utilising the
office’s facilities, it has to be classified as a pri-
vate act which cannot be penalised in terms of s
331 of the Code (Kuhlen, supra, p 438 et seq).
It is irrelevant whether the offender has actu-
ally performed the official act or whether he
just intends doing so. Simply, the agreement
between the official and another person to take
a bribe as the price for his past or future perfor-
mance of an official act and thus the creation of
the impression by the official that he is corrupt-
ible is sufficient to constitute an offence in
terms of s 331 of the Code (Kuhlen, supra, at
435; Leipziger Kommentar, supra, s 331, no
14).
S 331 paragraph (3) of the Code makes spe-
cial provision for an approval of the acceptance
of a benefit by the competent authorities. Such
approval prevents the punishability of the
acceptance of a benefit as the price for the per-
formance of an official act. If the benefit to be
promised or accepted is, however, only a small
token as a form of special appreciation, then
there is no room for an approval since such
“benefits” do not correlate with the perfor-
mance of any official acts (Leipziger Kommen-
tar, supra, s 331, no 13, 15; Lackner, Strafge-
setzbuch, 16th ed. 1985, s 331, no 6a));
Schönke/Schröder, supra, s 331, no 48). One
can think of the following examples: the
Christmas present for the postman or the dust-
man, the New Year’s present for the traffic
policeman, the farewell present for the head of
a diplomatic mission. Such gestures are regard-
ed as common usage and as such more or less
harmless and not affecting the public interest
(Dreher/Tröndle, supra, s 331, no 22, with fur-
ther ref. to criminal case law).
The approval in terms of s 331 (3) of the
Code is regarded as a legal justification (BGHSt
31, 264, at 285).
The taking of a bribe by a judge or an arbitra-
tor in terms of paragraph (2) of s 331 of the
Code is an aggravated form of crime compared
to the crime stated in paragraph (1). The
offender has to be either a judge – which
includes also honorary judges according to s 11
(1) 3. of the Code (“ ‘judge’ ... according to
German law is a professional or honorary
judge”) – or an arbitrator.

The compensation to an arbitrator shall be
deemed to be a benefit within the meaning of s
331 of the Code only if the arbitrator demands,
permits to be promised to him or accepts it
from one party behind the back of the other, or
if it is offered, promised or furnished to him by
one party behind the back of the other, s 335a
of the Code. That means that the regular com-
pensation to an arbitrator is no benefit in terms
of s 331 of the Code since the arbitrator is enti-
tled to receive compensation according to ss
612, 614 of the German Civil Code (Leipziger
Kommentar, supra, s 335a no 2, s 331 no 7).
Only compensation that is offered or promised
to the arbitrator from one party behind the back
and without the knowledge of the other, on top
of the compensation to which he is entitled,
must be regarded as a benefit in terms of s 331
(2) of the Code (Schönke/Schröder, supra, s
335a, no 2,3).
The attempt of the offence of s 331 is punish-
able only for the aggravated form of the offence
in terms of paragraph 2. A judge or arbitrator
who demands any benefit commits an attempted
offence once he tries to get into contact with the
other person (Leipziger Kommentar, supra, s
331, no 26). If he tries to contact the other per-
son in writing, the letter must at least have
reached the addressee before the attempt is com-
pleted (Schönke/Schröder, op cit, s 331, no 35).
The joint offender must also be a government
employee or a person specially obligated for a
public function, and he must keep the benefit
partially for himself. In addition, the perfor-
mance of the particular duty must at least form
part of his own duties (BGHSt 14, 123), other-
wise he will only qualify as a participant but
not as a joint offender.
“Section 332
(1) Any government employee or person
specially obligated for a public function
who demands, permits to be promised to
him or accepts any benefit as the price for
his past or future performance of an official
act and who thereby violates or would vio-
late the duties of his office shall be pun-
ished by imprisonment from six months to
five years and, in less serious cases, by up
to three years’ imprisonment or by fine. The
attempt is punishable.
(2) A judge or arbitrator who demands, per-
mits to be promised to him or accepts any
19
Thomashausen
benefit as the price for his past or future
performance of a judicial act and who there-
by violates or would violate his judicial
duties shall be punished by imprisonment
from one to ten years and, in less serious
cases, by imprisonment from six months to
five years.
(3) If the offender demands, permits to be
promised to him or accepts a benefit as the
price for the future performance of an act, it
shall be sufficient for the application of sub-
paragraphs (1) and (2) if, in dealing with the
other party, he indicated his willingness to:
1. violate his duties in performing the act;
or
2. to the extent that he has discretion in
performing the act, to permit the benefit
to influence him in exercising his discre-
tion.”
Explanation
The criminal offence of corruptibility, i.e. the
acceptance of a benefit as the price for the per-
formance of an official act and thereby violat-
ing the duties of office are aggravated forms of
the passive bribery offence of s 331 (1) and (2)
of the Code. The aggravation is the violation of
the official’s office duties.
The objective elements of this offence are the
same as for the offence of simple passive
bribery, s 331 of the Code, except that the per-
formance of the official act must at the same
time violate the duties of the official’s office. If
it cannot be established whether the act which
the official had performed in the past did in fact
violate the duties of his office, then the princi-
ple of in dubio pro reo applies with the effect
that the offender can only be punished for sim-
ple passive bribery in terms of s 331 of the
Code (Leipziger Kommentar, supra, s 332, no
4). If, however, the agreement on the promise
or the acceptance of a benefit relates to the
future performance of an act, the provision of
paragraph (3) applies. It shall then be sufficient
if the offender, in dealing with the other party,
indicated his willingness to violate the office
duties by performing the official act. The men-
tal reservation of the offender to eventually not
violate his duties in performing the act does not
exonerate him (Schönke/Schröder, supra, s
332, no 15 et seq, with further references).
The offender must violate the duties of his
office. That means that he must act in contra-
Thomashausen
vention of public statutes, statutory rules and
orders, administrative regulations, general staff
regulations or special directions (Leipziger
Kommentar, supra, s 332, no 5). The violation
of judicial duties means the violation of the cur-
rent law by applying legal provisions incorrect-
ly, or by applying invalid provisions or by not
applying legally valid provisions (op cit).
As regards the violation of the duties of the
office, one has to differentiate between the con-
travention against written statutes, rules, oblig-
ations or regulations on the one hand and the
violation of duties as far as discretionary deci-
sions are concerned. In the latter case the offi-
cial acts contrary to his duties if he takes an
improper or incorrect decision (Leipziger
Kommentar, supra, s 332, no 7).
The offender must be aware of his wrongdo-
ing, i.e. he must be aware of the fact that the
performance or non-performance of his act
means a violation of his office duties. If he
lacks such awareness, he only commits the
offence of simple passive bribery, s 331 (RGSt
56, 403; BGHSt 3, 143).
Only judges and arbitrators can be punished
for an attempted offence, s 331 (2).
As far as complicity is concerned, the same
conditions as for s 331 apply (BGHSt 14, 123).
“Section 333
(1) Whoever offers, promises or furnishes
any benefit to a government employee, per-
son specially obligated for a public func-
tion, or member of the armed forces of the
Federal Republic of Germany as payment
for his future performance of an official dis-
cretionary act, shall be punished by up to
two years’ imprisonment or by fine.
(2) Whoever offers, promises or furnishes
any benefit to a judge or arbitrator as a pay-
ment for the future performance of a judi-
cial act shall be punished by up to three
years’ imprisonment or by fine.
(3) Conduct falling under subparagraph (1)
shall not be punishable if the competent
authorities, within the scope of their author-
ity, have either previously approved the
acceptance of the benefit by the recipient or
subsequently granted approval after the
recipient promptly reported it to them.”
Explanation
This section was inserted into the Code as a
20
result of the law reform of 1975. Its provisions
are similar to those of s 331 of the Code, except
that s 333 refers to the offence of active bribery
and punishes the person who offers, promises
or furnishes any benefit to a government
employee as payment for the performance of an
official act, whereas s 331 punishes the person
who demands, permits to be promised or
accepts any benefit as the price for his perfor-
mance of an official act.
In terms of paragraph (1) anybody can be an
offender, even another government employee
or official. The person to be bribed must be
either a government employee, or a person spe-
cially obligated for a public function, or a
member of the armed forces of the Federal
Republic of Germany.
The offering of the profit corresponds with
the demanding in s 331 of the Code, and the
promising corresponds with the permission to
be promised in s 331 (BGHSt 15, 88). To fur-
nish a benefit means to actually grant the bene-
fit to the recipient, and thus is comparable to
the acceptance of a benefit in terms of s 331 of
the Code (Leipziger Kommentar, supra, s 333,
no 4). It is not necessary that these three decla-
rations are made explicitly, it is sufficient if
they are expressed through implied conduct
(RGSt 26, 424; 47, 68). It is irrelevant whether
the perpetrator finally succeeds in the sense that
the official performs an official act, as long as
the perpetrator was determined to offer,
promise or furnish any benefit to the govern-
ment employee or had already started to bribe
him (BGH NJW 1955, 529).
It is not necessary that the offender has direct
contact with the official. He can use an inter-
mediary who then actually offers, promises or
furnishes the benefit to the government
employee. The offender does not have to know
the identity of the official (Dreher/Tröndle,
supra, s 333, no 4).
The definitions of the terms “benefit” and
“price” have the same meaning as for s 331 of
the Code (see above).
The bribe must be offered for the future per-
formance of an official discretionary act. Dis-
cretionary act means that the official must have
a choice between several alternatives when he
takes his decision (Lackner, supra, s 333, no
3b)).
According to paragraph (3) the acceptance of
a benefit in terms of paragraph (1) shall not be

punishable if the competent authorities have
either previously approved the acceptance of
the benefit by the recipient or subsequently
granted approval after the recipient promptly
reported it to them. However, this provision has
hardly any practical implication as it is regard-
ed as highly unlikely that the authorities will
approve the acceptance of a benefit as a pay-
ment for the future performance of official dis-
cretionary acts (Leipziger Kommentar, supra, s
333, no 8; Schönke/Schröder, supra, s 333, no
20). If the offender furnished the benefit to the
official subject to the approval of its acceptance
by the competent authorities and if he takes that
benefit back in case of the disapproval by the
authorities, he shall not be punishable (Leip-
ziger Kommentar, op cit.). If the offender fur-
nished the benefit unconditionally because it
was impossible or unreasonable to obtain the
previous approval of its acceptance, his conduct
shall not be punishable if the acceptance of the
benefit was in general approvable and the
offender was under the impression that the
recipient would try to obtain such approval as
soon as possible, irrespective of whether the
approval was granted in the end (Schönke/
Schröder, supra, s 333, no 22).
The offender must act wilfully and knowing-
ly, and at least with contingent intent (RGSt 23,
376; 77, 78).
“Section 334
(1) Whoever offers, promises or furnishes
any benefit to a government employee, per-
son specially obligated for a public func-
tion, or member of the armed forces of the
Federal Republic of Germany as payment
for his past or future performance of an offi-
cial act, whereby he violated or would vio-
late the duties of his office, shall be pun-
ished by imprisonment from three months
to five years and, in less serious cases, by
up to two years’ imprisonment or by fine.
(2) Whoever offers, promises or furnishes
any benefit to a judge or arbitrator as pay-
ment for a judicial act:
1. already performed and which violated
his judicial duties; or
2. to be performed in the future and
which would violate his judicial duties
shall, in cases falling under number one,
be punished by imprisonment from three
months to five years, and in cases falling
21
Thomashausen
under number two, by imprisonment from
six months to five years. The attempt is
punishable.
(3) If the offender offers, promises or fur-
nishes the benefit as payment for the future
performance of an act, it shall be sufficient
for the application of subparagraphs (1) and
(2) if he attempts to induce the other party
to:
1. violate his duties in performing the act;
or
2. to the extent that he has discretion in
performing the act, to permit the benefit
to influence him in exercising this discre-
tion.”
Explanation
S 334 of the Code is the active form of the
offence which is laid down in s 332.
Under this crime anybody can be an offender.
The group of people who are the recipients is
the same as under s 333 of the Code (see afore-
going section).
The criminal act differs from that of s 333
insofar as the act of bribery can relate a past or
future performance of official and judicial acts
which had violated in the past or would violate
in future the duties of the official.
If the benefit relates to a past or simultaneous
performance of an official or judicial act, the
violation of duties must be determined. If the
offender thought erroneously that he would vio-
late his duties of office, he is punishable for the
attempt which carries a penalty only for the
cases of offering a bribe to judges or arbitrators
(paragraph 2).
Paragraph (3) is applicable to the future per-
formance of an official or judicial act and is
thus comparable to paragraph (3) of s 332 of
the Code.
The offender is punishable in terms of s 334
(1) and (2) of the Code if he offers, promises or
furnishes a benefit to an official in an attempt
to induce – either explicitly or through implied
conduct – the other party to either violate his
duties in performing a particular official act or,
where the official has discretion in performing
the act to permit the benefit to influence the
official in exercising this discretion. Thus the
provision of s 334 which was also inserted into
the Code as a result of the law reform of 1975
confirms the former criminal case law
(Leipziger Kommentar, s 334, no 6 with refer-
Thomashausen
ences to the case law). It is not necessary that
the official at the end performs the official or
judicial act, or that such performance would be
in violation of the office duties, or that the offi-
cial understood and was aware of the meaning
of the offering, promising or furnishing of the
benefit (Leipziger Kommentar, op cit.).
Again the offender must act wilfully and
knowingly, but contingent intent is sufficient
Dreher/Tröndle, supra, s 334, no 7, with further
references to case law).
“Section 335
Failing to perform one’s official or judicial
duties shall be deemed equivalent to the
ANNEX II: ARGENTINE LEGISLATION NOT QUOTED IN TEXT
(Translations by S Viejobueno, Abogada,
Institute of Foreign and Comparative Law,
Unisa).
Art 248: Any public official who dictates reso-
lutions or gives orders contrary to the
Constitution or the existing national or provin-
cial legislation, carries out such resolutions or
orders or fails to perform his duty in enforcing
the law shall be punished with imprisonment
from two months to two years and limited sus-
pension or disqualification from public office
(inhabilitación especial).
Art 249: Any public official who illegally
omits, refuses or delays to perform an act with-
in his official duties shall be fined and suspend-
ed from public office for a period of one month
to one year.
Art 250: A civil guard or civil defense officer
(commissioned to keep public order) who
refuses, delays or omits, without legal justifica-
tion, to assist a civil authority requesting his aid
shall be liable to imprisonment for a term of
one month to two years and limited suspension
from public office.
22
performance of them within the meaning of
s 331 to 334.”
Explanation
This legal provision clarifies the position by
stating that a government employee or any
other official mentioned in ss 331-334 of the
Code can be offered any benefit as payment not
only for the performance of an official or judi-
cial act but also for failing to perform his offi-
cial or judicial duties in terms of ss 331-334.
This principle which in the past had been estab-
lished case law (RGSt 42, 385; BGHSt 9, 245)
was codified and inserted into the Code by the
criminal law reform of 1975.
Art 251: A public official who, in his capacity
as such, requests the assistance of the law
enforcement forces to elude the execution of a
duly authorised order of an administrative or
judicial authority shall be liable to imprison-
ment from one month to four years and suspen-
sion from public office for a limited period.
Art 252: A public official who relinquishes his
office prior to his resignation being accepted
shall be fined and suspended for a limited peri-
od, if the Administration (public service) has
suffered any damage or loss as a consequence
thereof.
Art 253: Any public official who appoints to
public office a person who does not comply
with the necessary legal requirements shall be
fined and suspended from public office for a
period of six months to two years. The same
applies to the person having accepted the
appointment.
Art 254: Any person who destroys or damages
a public seal affixed by the administrative
authority which is intended to preserve or iden-
tify property shall be liable to imprisonment

from six months to one year. If the accused is a
public official acting wilfully he shall also be
suspended from public office for a limited peri-
od.
Art 255: Any person who wilfully retains,
destroys, damages or in any way conceals any
object or piece of evidence, records or official
documents which are entrusted to a public offi-
cial or any other person in terms of an adminis-
trative order duly authorised shall be liable for
imprisonment for a period of one month to four
years. If the property had been entrusted to the
accused, he shall be suspended from public
office for a limited period.
Art 256: (Simple passive bribery) A public
official who directly or indirectly receives,
accepts or permits to be promised to him
(directly or indirectly) money or any other
valuable asset or benefit in respect of anything
to be done or omitted to be done by him in his
official capacity, or to use his authority to influ-
ence another public official to do or refrain
from doing something in his official capacity
shall be punished with imprisonment for a peri-
od of six months to six years and suspension
from public office from three to ten years.
Art 257: A judge who accepts or permits to be
promised to him money or any other benefit to
pronounce judgment, to delay or omit sentence
or any other resolution in a case under his juris-
diction shall be liable to imprisonment from
four to twelve years and suspension from pub-
lic office for life (inhabilitación absoluta y per-
petua).
Art 258: (Active bribery; offering of a bribe)
Any person who offers or gives directly or indi-
rectly money or any other valuable asset or
benefit to a public official pursuant to art 256
above shall be liable to imprisonment from two
months to six years. The Code aggravates the
punishment if the recipient of the bribery is a
judge (two to six years’ imprisonment).
Art 259: Any official who receives or accepts
gifts, donations, contributions or any other ben-
efit (dádivas) given to him in his official capac-
ity while in office shall be liable to imprison-
ment from two months to two years and sus-
pension from public office for a period of one
23
Thomashausen
to six years. The person offering the gift or ben-
efit shall be punished with imprisonment from
one month to one year.
Art 260: (Arbitrary handling of public funds)
Any public official who administers public
funds or monies with a direction that the
monies shall be applied to a certain purpose,
and contrary to the direction applies the funds
to any other purpose (within the administration)
shall be liable to suspension for a period of
three months to three years. If any loss or dam-
age is caused to the Administration by his
action, the accused shall be fined with a sum
equivalent to 20% to 50% of the funds affected.
Art 261: (Embezzlement of public funds) A
public official who takes property or funds
entrusted to him for custody, collection or
administration with the intention of unlawfully
appropriating it to himself shall be liable to
imprisonment for a period of two to ten years
and suspension from public office for life. The
same punishment shall be imposed on any pub-
lic official who benefits personally from works
or services paid for with public funds.
Art 262: A public official who, by his negli-
gent behaviour, causes or permits a third party
to embezzle or misappropriate public funds
shall be fined with an amount equivalent to
20% to 60% of the funds affected.
Art 263: Those administering or in charge of
the custody of property or assets belonging to
public schools or charity organisations, as well
as persons acting as administrators or custodi-
ans of attached or sequestrated goods or assets
are subject to the regulations of the provisions
set out above.
Art 264: Any public official who unlawfully or
without justification delays or obstructs pay-
ments duly authorised shall be suspended from
public office for a period of one to six months.
The same punishment shall be imposed on a
public official who, after being legally required
to do so, refuses to hand over or deliver funds
or other property entrusted to him for adminis-
tration or custody.
Art 265: A public official who, by himself or
through another person, directly or indirectly
Thomashausen

i.e. by an action carried out to conceal the true
action (acto simulado), becomes involved per-
sonally in any dealings (contract or any other
business transactions) with the government per-
formed in his official capacity shall be liable to
imprisonment for a period of two to six years
and suspension from public office for a period
of three to ten years.
The same applies to any person entrusted
with the custody, conservation, administration
or partition of property belonging to a third
party.

ANNEX III: UNITED KINGDOM PUBLIC INTEREST DISCLOSURE ACT

Public Interest Disclosure Act 1998 Excellent Majesty, by and with the advice and
1998 Chapter 23 consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament
Arrangement of sections assembled, and by the authority of the same, as
Section follows:–

1. Protected disclosures Protected disclosures

2. Right not to suffer detriment 1. After Part IV of the Employment Rights Act
3. Complaints to employment tribunal 1996 (in this Act referred to as “the 1996 Act”)
4. Limit on amount of compensation there is inserted –
5. Unfair dismissal
6. Redundancy Meaning of “PART IVA
7. Exclusion of restrictions on right not to “protected PROTECTED DISCLOSURES
be unfairly dismissed disclosure”. 43A. – In this Act a “protected
8. Compensation for unfair dismissal disclosure” means a qualifying
9. Interim relief disclosure (as defined by section
10. Crown employment 43B) which is made by a worker
11. National security Disclosures in accordance with any of sections
12. Work outside Great Britain qualifying 43C to 43H.
13. Police officers for protec- 43B. – (1) In this Part a “qualify-
14. Remedy for infringement of rights tion. ing disclosure” means any disclo-
15. Interpretative provisions of 1996 Act sure of information which, in the
16. Dismissal of those taking part in unoffi- reasonable belief of the worker
cial industrial action making the disclosure, tends to
17. Corresponding provision for Northern show one or more of the following
Ireland –
18. Short title, interpretation, commence- (a) that a criminal offence has
ment and extent been committed, is being com-
mitted or is likely to be commit-
An Act to protect individuals who make certain ted,
disclosures of information in the public interest; (b) that a person has failed, is
to allow such individuals to bring action in failing or is likely to fail to com-
respect of victimisation; and for connected pur- ply with any legal obligation to
poses. which he is subject,
[2nd July 1998] (c) that a miscarriage of justice
has occurred, is occurring or is
BE IT ENACTED by the Queen’s most likely to occur,

24

(d) that the health or safety of
any individual has been, is being
or is likely to be endangered,
(e) that the environment has
been, is being or is likely to be
damaged, or
(f) that information tending to
show any matter falling within
any one of the preceding para-
graphs has been, is being or is
likely to be deliberately con-
cealed.
(2) For the purposes of subsection
(1), it is immaterial whether the
relevant failure occurred, occurs
or would occur in the United
Kingdom or elsewhere, and
whether the law applying to it is
that of the United Kingdom or of
any other country or territory.
(3) A disclosure of information is
not a qualifying disclosure if the
person making the disclosure com-
mits an offence by making it.
(4) A disclosure of information in
respect of which a claim to legal
professional privilege (or, in
Scotland, to confidentiality as
between client and professional
legal adviser) could be maintained
in legal proceedings is not a quali-
fying disclosure if it is made by a
person to whom the information
had been disclosed in the course of
obtaining legal advice.
(5) In this Part “the relevant fail-
ure”, in relation to a qualifying
disclosure, means the matter
Disclosure falling within paragraphs (a) to (f)
to employer of subsection (1).
or other 43C. – (1) A qualifying disclosure
responsible is made in accordance with this
person. section if the worker makes the
disclosure in good faith –
(a) to his employer, or
(b) where the worker reasonably
believes that the relevant failure
relates solely or mainly to –
(i) the conduct of a person other
than his employer, or
(ii) any other matter for which a
person other than his employer
has legal responsibility,
25
Thomashausen
to that other person.
(2) A worker who, in accordance
with a procedure whose use by
him is authorised by his employer,
makes a qualifying disclosure to a
person other than his employer, is
to be treated for the purposes of
Disclosure this Part as making the qualifying
to legal disclosure to his employer.
adviser. 43D. – A qualifying disclosure is
made in accordance with this sec-
Disclosure tion if it is made in the course of
to Minister obtaining legal advice.
of the 43E. – A qualifying disclosure is
Crown. made in accordance with this sec-
tion if –
(a) the worker’s employer is –
(i) an individual appointed
under any enactment by a
Minister of the Crown, or
(ii) a body any of whose mem-
bers are so appointed, and
(b) the disclosure is made in
Disclosure good faith to a Minister of the
to prescribed Crown.
person. 43F. – (1) A qualifying disclosure
is made in accordance with this
section if the worker –
(a) makes the disclosure in good
faith to a person prescribed by an
order made by the Secretary of
State for the purposes of this sec-
tion, and
(b) reasonably believes –
(i) that the relevant failure falls
within any description of mat-
ters in respect of which that
person is so prescribed, and
(ii) that the information dis-
closed, and any allegation con-
tained in it, are substantially
true.
(2) An order prescribing persons
for the purposes of this section
may specify persons or descrip-
tions of persons, and shall specify
the descriptions of matters in
respect of which each person, or
Disclosure persons of each description, is or
in other are prescribed.
cases. 43G. – (1) A qualifying disclosure
is made in accordance with this
section if –
Thomashausen
(a) the worker makes the disclo-
sure in good faith,
(b) he reasonably believes that
the information disclosed, and
any allegation contained in it, are
substantially true,
(c) he does not make the disclo-
sure for purposes of personal
gain,
(d) any of the conditions in sub-
section (2) is met, and
(e) in all the circumstances of the
case, it is reasonable for him to
make the disclosure.
(2) The conditions referred to in
subsection (1)(d) are –
(a) that, at the time he makes the
disclosure, the worker reason-
ably believes that he will be sub-
jected to a detriment by his
employer if he makes a disclo-
sure to his employer or in accor-
dance with section 43F,
(b) that, in a case where no per-
son is prescribed for the purposes
of section 43F in relation to the
relevant failure, the worker rea-
sonably believes that it is likely
that evidence relating to the rele-
vant failure will be concealed or
destroyed if he makes a disclo-
sure to his employer, or
(c) that the worker has previous-
ly made a disclosure of substan-
tially the same information –
(i) to his employer, or
(ii) in accordance with section
43F.
(3) In determining for the purpos-
es of subsection (1)(e) whether it
is reasonable for the worker to
make the disclosure, regard shall
be had, in particular, to –
(a) the identity of the person to
whom the disclosure is made,
(b) the seriousness of the rele-
vant failure,
(c) whether the relevant failure is
continuing or is likely to occur in
the future,
(d) whether the disclosure is
made in breach of a duty of con-
fidentiality owed by the employ-
26
er to any other person,
(e) in a case falling within sub-
section (2)(c)(i) or (ii), any
action which the employer or the
person to whom the previous dis-
closure in accordance with sec-
tion 43F was made has taken or
might reasonably be expected to
have taken as a result of the pre-
vious disclosure, and
(f) in a case falling within sub-
section (2)(c)(i), whether in mak-
ing the disclosure to the employ-
er the worker complied with any
procedure whose use by him was
authorised by the employer.
(4) For the purposes of this section
a subsequent disclosure may be
regarded as a disclosure of sub-
stantially the same information as
that disclosed by a previous dis-
closure as mentioned in subsection
(2)(c) even though the subsequent
disclosure extends to information
about action taken or not taken by
Disclosure any person as a result of the previ-
of excep- ous disclosure.
tionally 43H. – (1) A qualifying disclosure
serious is made in accordance with this
failure. section if –
(a) the worker makes the disclo-
sure in good faith,
(b) he reasonably believes that
the information disclosed, and
any allegation contained in it, are
substantially true,
(c) he does not make the disclo-
sure for purposes of personal
gain,
(d) the relevant failure is of an
exceptionally serious nature,
and
(e) in all the circumstances of the
case, it is reasonable for him to
make the disclosure.
(2) In determining for the purpos-
es of subsection (1)(e) whether it
is reasonable for the worker to
make the disclosure, regard shall
be had, in particular, to the identi-
Contractual ty of the person to whom the dis-
duties of closure is made.
confiden- 43J. – (1) Any provision in an
tiality.

agreement to which this section
applies is void insofar as it pur-
ports to preclude the worker from
making a protected disclosure.
(2) This section applies to any
agreement between a worker and
his employer (whether a worker’s
contract or not), including an
agreement to refrain from institut-
ing or continuing any proceedings
Extension under this Act or any proceedings
of meaning for breach of contract.
of “work- 43K. – (1) For the purposes of this
er” etc. for Part “worker” includes an individ-
Part IVA. ual who is not a worker as defined
by section 230(3) but who –
(a) works or worked for a person
in circumstances in which –
(i) he is or was introduced or
supplied to do that work by a
third person, and
(ii) the terms on which he is or
was engaged to do the work are
or were in practice substantially
determined not by him but by
the person for whom he works
or worked, by the third person
or by both of them,
(b) contracts or contracted with a
person, for the purposes of that
person’s business, for the execu-
tion of work to be done in a
place not under the control or
management of that person and
would fall within section
230(3)(b) if for “personally” in
that provision there were substi-
tuted “(whether personally or
otherwise)”,
(c) works or worked as a person
providing general medical ser-
vices, general dental services,
general ophthalmic services or
pharmaceutical services in accor-
dance with arrangements made –
(i) by a Health Authority under
section 29, 35, 38 or 41 of the
National Health Service Act
1977, or
(ii) by a Health Board under
section 19, 25, 26 or 27 of the
National Health Service
(Scotland) Act 1978, or
27
Thomashausen
(d) is or was provided with work
experience provided pursuant to
a training course or programme
or with training for employment
(or with both) otherwise than –
(i) under a contract of employ-
ment, or
(ii) by an educational establish-
ment on a course run by that
establishment;
and any reference to a worker’s
contract, to employment or to a
worker being “employed” shall
be construed accordingly.
(2) For the purposes of this Part
“employer” includes –
(a) in relation to a worker falling
within paragraph (a) of subsec-
tion (1), the person who substan-
tially determines or determined
the terms on which he is or was
engaged,
(b) in relation to a worker falling
within paragraph (c) of that sub-
section, the authority or board
referred to in that paragraph,
and
(c) in relation to a worker falling
within paragraph (d) of that sub-
section, the person providing the
work experience or training.
(3) In this section “educational
establishment” includes any uni-
Other inter- versity, college, school or other
pretative educational establishment.
provisions. 43L. – (1) In this Part –
“qualifying disclosure” has the
meaning given by section 43B;
“the relevant failure”, in relation
to a qualifying disclosure, has
the meaning given by section
43B(5).
(2) In determining for the purpos-
es of this Part whether a person
makes a disclosure for purposes of
personal gain, there shall be disre-
garded any reward payable by or
under any enactment.
(3) Any reference in this Part to
the disclosure of information shall
have effect, in relation to any case
where the person receiving the
information is already aware of it,
Thomashausen
as a reference to bringing the
information to his attention.
Right not to suffer detriment
2. After section 47A of the 1996 Act there is
“Protected
inserted –
disclosures.
47B. – (1) A worker has the right
not to be subjected to any detri-
ment by any act, or any deliberate
failure to act, by his employer
done on the ground that the work-
er has made a protected disclosure.
(2) Except where the worker is an
employee who is dismissed in cir-
cumstances in which, by virtue of
section 197, Part X does not apply
to the dismissal, this section does
not apply where –
(a) the worker is an employee,
and
(b) the detriment in question
amounts to dismissal (within the
meaning of that Part).
(3) For the purposes of this sec-
tion, and of sections 48 and 49 so
far as relating to this section,
“worker”, “worker’s contract”,
“employment” and “employer”
have the extended meaning given
by section 43K.”
Complaints to employment tribunal
3. In section 48 of the 1996 Act (complaints to
employment tribunals), after subsection (1)
there is inserted –
“(1A) A worker may present a complaint to
an employment tribunal that he has been
subjected to a detriment in contravention of
section 47B.”
Limit on amount of compensation
4. – (1) Section 49 of the 1996 Act (remedies)
is amended as follows.
(2) At the beginning of subsection (2) there is
inserted “Subject to subsection (6)”.
(3) After subsection (5) there is inserted –
“(6) Where –
(a) the complaint is made under section
48(1A),
(b) the detriment to which the worker is
subjected is the termination of his work-
er’s contract, and
(c) that contract is not a contract of
employment,
28
any compensation must not exceed the com-
pensation that would be payable under
Chapter II of Part X if the worker had been
an employee and had been dismissed for the
reason specified in section 103A.”
Unfair dismissal
5. After section 103 of the 1996 Act there is
“Protected
inserted –
disclosure.
103A. An employee who is dis-
missed shall be regarded for the
purposes of this Part as unfairly
dismissed if the reason (or, if more
than one, the principal reason) for
the dismissal is that the employee
made a protected disclosure.”
Redundancy
6. After subsection (6) of section 105 of the
1996 Act (redundancy) there is inserted –
“(6A) This subsection applies if the reason
(or, if more than one, the principal reason)
for which the employee was selected for
dismissal was that specified in section
103A.”
Exclusion of restrictions on right not to be
unfairly dismissed
7. – (1) In subsection (3) of section 108 of the
1996 Act (cases where qualifying period of
employment not required), after paragraph (f)
there is inserted –
“(ff) section 103A applies,”
(2) In subsection (2) of section 109 of the 1996
Act (disapplication of upper age limit), after
paragraph (f) there is inserted –
“(ff) section 103A applies,”.
Compensation for unfair dismissal
8. – (1) In section 112(4) of the 1996 Act (com-
pensation for unfair dismissal) after “sections
118 to 127A” there is inserted “or in accor-
dance with regulations under section 127B”.
(2) In section 117 of that Act (enforcement of
order for reinstatement or re-engagement) –
(a) in subsection (2) after “section 124”
there is inserted “and to regulations under
section 127B”, and
(b) in subsection (3) after “and (2)” there is
inserted “and to regulations under section
127B”.
(3) In section 118 of that Act (general provi-
sions as to unfair dismissal), at the beginning of

subsection (1) there is inserted “Subject to reg-
ulations under section 127B,”.
(4) After section 127A of the 1996 Act there is
“Dismissal
inserted
as a result–of
protected 127B. – (1) This section applies
disclosure. where the reason (or, if more than
one, the principal reason) –
(a) in a redundancy case, for
selecting the employee for dis-
missal, or
(b) otherwise, for the dismissal,
is that specified in section
103A.
(2) The Secretary of State may by
regulations provide that where this
section applies any award of com-
pensation for unfair dismissal
under section 112(4) or 117(1) or
117(3) shall, instead of being cal-
culated in accordance with the
provisions of sections 117 to
127A, consist of one or more
awards calculated in such manner
as may be prescribed by the regu-
lations.
(3) Regulations under this section
may, in particular, apply any of
the provisions of sections 117 to
127A with such modifications as
may be specified in the regula-
tions.”
Interim relief
9. In sections 128(1)(b) and 129(1) of the 1996
Act (which relate to interim relief) for “or 103”
there is substituted “, 103 or 103A”.
Crown employment
10. In section 191 of the 1996 Act (Crown
employment), in subsection (2) after paragraph
(a) there is inserted –
“(aa) Part IVA,”.
National security
11. – (1) Section 193 of the 1996 Act (national
security) is amended as follows.
(2) In subsection (2) after paragraph (b) there is
inserted –
“(bb) Part IVA,
(bc) in Part V, section 47B,”.
(3) After subsection (3) of that section there is
inserted –
“(4) Part IVA and sections 47B and 103A
29
Thomashausen
do not have effect in relation to employ-
ment for the purposes of the Security
Service, the Secret Intelligence Service or
the Government Communications Head-
quarters.”
Work outside Great Britain
12. – (1) Section 196 of the 1996 Act (employ-
ment outside Great Britain) is amended as fol-
lows.
(2) After subsection (3) there is inserted –
“(3A) Part IVA and section 47B do not
apply to employment where under the
worker’s contract he ordinarily works out-
side Great Britain.”
(3) In subsection (5), after “subsections (2)”
there is inserted “, (3A)”.
Police officers
13. In section 200 of the 1996 Act (police offi-
cers), in subsection (1) (which lists provisions
of the Act which do not apply to employment
under a contract of employment in police ser-
vice, or to persons engaged in such employ-
ment)–
(a) after “Part III” there is inserted “, Part
IVA”, and
(b) after “47” there is inserted “, 47B”.
Remedy for infringement of rights
14. In section 205 of the 1996 Act (remedy for
infringement of certain rights) after subsection
(1) there is inserted –
“(1A) In relation to the right conferred by
section 47B, the reference in subsection (1)
to an employee has effect as a reference to a
worker.”
Interpretative provisions of 1996 Act
15. – (1) At the end of section 230 of the 1996
Act (employees, workers, etc.) there is inserted
–
“(6) This section has effect subject to sec-
tions 43K and 47B(3); and for the purposes
of Part XIII so far as relating to Part IVA
or section 47B, “worker”, “worker’s con-
tract” and, in relation to a worker, “employ-
er”, “employment” and “employed” have
the extended meaning given by section
43K.”
(2) In section 235 of the 1996 Act (other defini-
tions) after the definition of “position” there is
inserted –
Thomashausen
“”protected disclosure” has the meaning
given by section 43A,”.
Dismissal of those taking part in unofficial
industrial action
16. – (1) In section 237 of the Trade Union and
Labour Relations (Consolidation) Act 1992
(dismissal of those taking part in unofficial
industrial action), in subsection (1A) (which
provides that the exclusion of the right to
complain of unfair dismissal does not apply in
certain cases) –
(a) for “or 103” there is substituted “, 103 or
103A”, and
(b) for “and employee representative
cases)” there is substituted “employee
representative and protected disclosure
cases)”.
Corresponding provision for Northern
Ireland
17. An Order in Council under paragraph
1(1)(b) of Schedule 1 to the Northern Ireland
Act 1974 (legislation for Northern Ireland in
the interim period) which states that it is made
only for purposes corresponding to those of this
Act –
(a) shall not be subject to paragraph 1(4)
ANNEX IV: UNITED STATES FOREIGN CORRUPT PRACTICES ACT
The Foreign Corrupt Practices Act
Current through Pub. L. 105-366
(November 10, 1998)
United States Code Annotated
Title 15. Commerce and Trade Chapter 2B –
Securities Exchanges
(Anti-Bribery Provisions)
§§ 78m. Periodical and other reports
(a) Reports by issuer of security; contents
Every issuer of a security registered pursuant to
section 78l of this title shall file with the
30
and (5) of that Schedule (affirmative resolu-
tion of both Houses of Parliament), but
(b) shall be subject to annulment in pur-
suance of a resolution of either House of
Parliament.
Short title, interpretation, commencement
and extent
18. – (1) This Act may be cited as the Public
Interest Disclosure Act 1998.
(2) In this Act “the 1996 Act” means the
Employment Rights Act 1996.
(3) Subject to subsection (4), this Act shall
come into force on such day or days as the
Secretary of State may by order made by statu-
tory instrument appoint, and different days may
be appointed for different purposes.
(4) The following provisions shall come into
force on the passing of this Act –
(a) section 1 so far as relating to the power
to make an order under section 43F of the
1996 Act,
(b) section 8 so far as relating to the power
to make regulations under section 127B of
the 1996 Act,
(c) section 17, and
(d) this section.
Commission, in accordance with such rules and
regulations as the Commission may prescribe
as necessary or appropriate for the proper pro-
tection of investors and to ensure fair dealing in
the security –
(1) such information and documents (and
such copies thereof) as the Commission
shall require to keep reasonably current the
information and documents required to be
included in or filed with an application or
registration statement filed pursuant to sec-
tion 78l of this title, except that the

Commission may not require the filing of
any material contract wholly executed
before July 1, 1962.
(2) such annual reports (and such copies
thereof), certified if required by the rules
and regulations of the Commission by inde-
pendent public accountants, and such quar-
terly reports (and such copies thereof), as
the Commission may prescribe.
Every issuer of a security registered on a
national securities exchange shall also file a
duplicate original of such information, doc-
uments, and reports with the exchange.
(b) Form of report; books, records, and inter-
nal accounting; directives
(1) The Commission may prescribe, in
regard to reports made pursuant to this chap-
ter, the form or forms in which the required
information shall be set forth, the items or
details to be shown in the balance sheet and
the earning statement, and the methods to be
followed in the preparation of reports, in the
appraisal or valuation of assets and liabilities,
in the determination of depreciation and
depletion, in the differentiation of recurring
and nonrecurring income, in the differentia-
tion of investment and operating income, and
in the preparation, where the Commission
deems it necessary or desirable, of separate
and/or consolidated balance sheets or income
accounts of any person directly or indirectly
controlling or controlled by the issuer, or any
person under direct or indirect common con-
trol with the issuer; but in the case of the
reports of any person whose methods of
accounting are prescribed under the provi-
sions of any law of the United States, or any
rule or regulation thereunder, the rules and
regulations of the Commission with respect
to reports shall not be inconsistent with the
requirements imposed by such law or rule or
regulation in respect of the same subject mat-
ter (except that such rules and regulations of
the Commission may be inconsistent with
such requirements to the extent that the
Commission determines that the public inter-
est or the protection of investors so requires).
(2) Every issuer which has a class of securi-
ties registered pursuant to section 78l of this
title and every issuer which is required to
file reports pursuant to section 78o(d) of
this title shall –
31
Thomashausen
(A) make and keep books, records, and
accounts, which, in reasonable detail, accu-
rately and fairly reflect the transactions and
dispositions of the assets of the issuer; and
(B) devise and maintain a system of inter-
nal accounting controls sufficient to pro-
vide reasonable assurances that –
(i) transactions are executed in accor-
dance with management’s general or
specific authorisation;
(ii) transactions are recorded as
necessary (I) to permit preparation of
financial statements in conformity with
generally accepted accounting princi-
ples or any other criteria applicable to
such statements, and (II) to maintain
accountability for assets;
(iii) access to assets is permitted only in
accordance with management’s general
or specific authorisation; and
(iv) the recorded accountability for
assets is compared with the existing
assets at reasonable intervals and
appropriate action is taken with respect
to any differences.
(3) (A)With respect to matters concerning the
national security of the United States, no
duty or liability under paragraph (2) of
this subsection shall be imposed upon any
person acting in cooperation with the
head of any Federal department or agency
responsible for such matters if such act in
cooperation with such head of a depart-
ment or agency was done upon the specif-
ic, written directive of the head of such
department or agency pursuant to Presi-
dential authority to issue such directives.
Each directive issued under this para-
graph shall set forth the specific facts and
circumstances with respect to which the
provisions of this paragraph are to be
invoked. Each such directive shall, unless
renewed in writing, expire one year after
the date of issuance.
(B) Each head of a Federal department or
agency of the United States who issues a
directive pursuant to this paragraph shall
maintain a complete file of all such direc-
tives and shall, on October 1 of each year,
transmit a summary of matters covered by
such directives in force at any time during
the previous year to the Permanent Select
Committee on Intelligence of the House
Thomashausen
of Representatives and the Select
Committee on Intelligence of the Senate.
(4) No criminal liability shall be imposed
for failing to comply with the requirements
of paragraph (2) of this subsection except as
provided in paragraph (5) of this subsection.
(5) No person shall knowingly circumvent
or knowingly fail to implement a system of
internal accounting controls or knowingly
falsify any book, record, or account
described in paragraph (2).
(6) Where an issuer which has a class of
securities registered pursuant to section 78l
of this title or an issuer which is required to
file reports pursuant to section 78o(d) of
this title holds 50 per centum or less of the
voting power with respect to a domestic or
foreign firm, the provisions of paragraph (2)
require only that the issuer proceed in good
faith to use its influence, to the extent rea-
sonable under the issuer’s circumstances, to
cause such domestic or foreign firm to
devise and maintain a system of internal
accounting controls consistent with para-
graph (2). Such circumstances include the
relative degree of the issuer’s ownership of
the domestic or foreign firm and the laws
and practices governing the business opera-
tions of the country in which such firm is
located. An issuer which demonstrates good
faith efforts to use such influence shall be
conclusively presumed to have complied
with the requirements of paragraph (2).
(7) For the purpose of paragraph (2) of this
subsection, the terms “reasonable assur-
ances” and “reasonable detail” mean such
level of detail and degree of assurance as
would satisfy prudent officials in the con-
duct of their own affairs.
(c) Alternative reports
If in the judgment of the Commission any
report required under subsection (a) of this sec-
tion is inapplicable to any specified class or
classes of issuers, the Commission shall require
in lieu thereof the submission of such reports of
comparable character as it may deem applicable
to such class or classes of issuers.
(d) Reports by persons acquiring more than
five per centum of certain classes of securities
(1) Any person who, after acquiring directly
or indirectly the beneficial ownership of any
32
equity security of a class which is registered
pursuant to section 78l of this title, or any
equity security of an insurance company
which would have been required to be so
registered except for the exemption con-
tained in section 78l(g)(2)(G) of this title, or
any equity security issued by a closed-end
investment company registered under the
Investment Company Act of 1940 [> 15
U.S.C.A. S 80a-1 et seq.] or any equity
security issued by a Native Corporation pur-
suant to section 1629c(d)(6) of Title 43, is
directly or indirectly the beneficial owner of
more than 5 per centum of such class shall,
within ten days after such acquisition, send
to the issuer of the security at its principal
executive office, by registered or certified
mail, send to each exchange where the secu-
rity is traded, and filed with the Commis-
sion, a statement containing such of the fol-
lowing information, and such additional
information, as the Commission may by
rules and regulations, prescribe as necessary
or appropriate in the public interest or for
the protection of investors –
(A) the background, and identity, resi-
dence, and citizenship of, and the nature
of such beneficial ownership by, such
person and all other persons by whom or
on whose behalf the purchases have been
or are to be effected;
(B) the source and amount of the funds or
other consideration used or to be used in
making the purchases, and if any part of
the purchase price is represented or is to
be represented by funds or other consider-
ation borrowed or otherwise obtained for
the purpose of acquiring, holding, or trad-
ing such security, a description of the
transaction and the names of the parties
thereto, except that where a source of
funds is a loan made in the ordinary
course of business by a bank, as defined
in section 78c(a)(6) of this title, if the per-
son filing such statement so requests, the
name of the bank shall not be made avail-
able to the public;
(C) if the purpose of the purchases or
prospective purchases is to acquire con-
trol of the business of the issuer of the
securities, any plans or proposals which
such persons may have to liquidate such
issuer, to sell its assets to or merge it with

any other persons, or to make any other
major change in its business or corporate
structure;
(D) the number of shares of such security
which are beneficially owned, and the
number of shares concerning which there
is a right to acquire, directly or indirectly,
by (i) such person, and (ii) by each asso-
ciate of such person, giving the back-
ground, identity, residence, and citizen-
ship of each such associate; and
(E) information as to any contracts,
arrangements, or understandings with any
person with respect to any securities of
the issuer, including but not limited to
transfer of any of the securities, joint ven-
tures, loan or option arrangements, puts
or calls, guaranties of loans, guaranties
against loss or guaranties of profits,
division of losses or profits, or the giving
or withholding of proxies, naming the
persons with whom such contracts,
arrangements, or understandings have
been entered into, and giving the details
thereof.
(2) If any material change occurs in the
facts set forth in the statements to the issuer
and the exchange, and in the statement filed
with the Commission, an amendment shall
be transmitted to the issuer and the
exchange and shall be filed with the
Commission, in accordance with such rules
and regulations as the Commission may
prescribe as necessary or appropriate in the
public interest or for the protection of
investors.
(3) When two or more persons act as a part-
nership, limited partnership, syndicate, or
other group for the purpose of acquiring,
holding, or disposing of securities of an
issuer, such syndicate or group shall be
deemed a “person” for the purposes of this
subsection.
(4) In determining, for purposes of this sub-
section, any percentage of a class of any
security, such class shall be deemed to con-
sist of the amount of the outstanding securi-
ties of such class, exclusive of any securi-
ties of such class held by or for the account
of the issuer or a subsidiary of the issuer.
(5) The Commission, by rule or regulation
or by order, may permit any person to file in
lieu of the statement required by paragraph
33
Thomashausen
(1) of this subsection or the rules and regu-
lations thereunder, a notice stating the name
of such person, the number of shares of any
equity securities subject to paragraph (1)
which are owned by him, the date of their
acquisition and such other information as
the Commission may specify, if it appears
to the Commission that such securities were
acquired by such person in the ordinary
course of his business and were not
acquired for the purpose of and do not have
the effect of changing or influencing the
control of the issuer nor in connection with
or as a participant in any transaction having
such purpose or effect.
(6) The provisions of this subsection shall
not apply to –
(A) any acquisition or offer to acquire
securities made or proposed to be made
by means of a registration statement
under the Securities Act of 1933 [> 15
U.S.C.A. 77a et seq.];
(B) any acquisition of the beneficial own-
ership of a security which, together with
all other acquisitions by the same person
of securities of the same class during the
preceding twelve months, does not
exceed 2 per centum of that class;
(C) any acquisition of an equity security
by the issuer of such security;
(D) any acquisition or proposed acquisi-
tion of a security which the Commission,
by rules or regulations or by order, shall
exempt from the provisions of this sub-
section as not entered into for the purpose
of, and not having the effect of, changing
or influencing the control of the issuer or
otherwise as not comprehended within
the purposes of this subsection.
(e) Purchase of securities by issuer
(1) It shall be unlawful for an issuer which
has a class of equity securities registered
pursuant to section 78l of this title, or which
is a closed-end investment company regis-
tered under the Investment Company Act of
1940 [> 15 U.S.C.A. S 80a-1 et seq.], to
purchase any equity security issued by it if
such purchase is in contravention of such
rules and regulations as the Commission, in
the public interest or for the protection of
investors, may adopt (A) to define acts and
practices which are fraudulent, deceptive, or
Thomashausen
manipulative, and (B) to prescribe means
reasonably designed to prevent such acts
and practices. Such rules and regulations
may require such issuer to provide holders
of equity securities of such class with such
information relating to the reasons for such
purchase, the source of funds, the number
of shares to be purchased, the price to be
paid for such securities, the method of pur-
chase, and such additional information, as
the Commission deems necessary or appro-
priate in the public interest or for the protec-
tion of investors, or which the Commission
deems to be material to a determination
whether such security should be sold.
(2) For the purpose of this subsection, a
purchase by or for the issuer or any person
controlling, controlled by, or under com-
mon control with the issuer, or a purchase
subject to control of the issuer or any such
person, shall be deemed to be a purchase by
the issuer. The Commission shall have
power to make rules and regulations imple-
menting this paragraph in the public interest
and for the protection of investors, includ-
ing exemptive rules and regulations cover-
ing situations in which the Commission
deems it unnecessary or inappropriate that a
purchase of the type described in this para-
graph shall be deemed to be a purchase by
the issuer for purposes of some or all of the
provisions of paragraph (1) of this subsec-
tion.
(3) At the time of filing such statement as
the Commission may require by rule pur-
suant to paragraph (1) of this subsection, the
person making the filing shall pay to the
Commission a fee of 1/50 of 1 per centum
of the value of securities proposed to be
purchased. The fee shall be reduced with
respect to securities in an amount equal to
any fee paid with respect to any securities
issued in connection with the proposed
transaction under section 6(b) of the
Securities Act of 1933 [15 U.S.C.A. S
77f(b) ], or the fee paid under that section
shall be reduced in an amount equal to the
fee paid to the Commission in connection
with such transaction under this paragraph.
(f) Reports by institutional investment
managers
(1) Every institutional investment manager
34
which uses the mails, or any means or
instrumentality of interstate commerce in
the course of its business as an institutional
investment manager and which exercises
investment discretion with respect to
accounts holding equity securities of a class
described in subsection (d)(1) of this section
having an aggregate fair market value on
the last trading day in any of the preceding
twelve months of at least $100,000,000 or
such lesser amount (but in no case less than
$10,000,000) as the Commission, by rule,
may determine, shall file reports with the
Commission in such form, for such periods,
and at such times after the end of such peri-
ods as the Commission, by rule, may pre-
scribe, but in no event shall such reports be
filed for periods longer than one year or
shorter than one quarter. Such reports shall
include for each such equity security held
on the last day of the reporting period by
accounts (in aggregate or by type as the
Commission, by rule, may prescribe) with
respect to which the institutional investment
manager exercises investment discretion
(other than securities held in amounts which
the Commission, by rule, determines to be
insignificant for purposes of this subsec-
tion), the name of the issuer and the title,
class, CUSIP number, number of shares or
principal amount, and aggregate fair market
value of each such security. Such reports
may also include for accounts (in aggregate
or by type) with respect to which the
institutional investment manager exercises
investment discretion such of the following
information as the Commission, by rule,
prescribes –
(A) the name of the issuer and the title,
class, CUSIP number, number of shares
or principal amount, and aggregate fair
market value or cost or amortised cost of
each other security (other than an exempt-
ed security) held on the last day of the
reporting period by such accounts;
(B) the aggregate fair market value or
cost or amortised cost of exempted secu-
rities (in aggregate or by class) held on
the last day of the reporting period by
such accounts;
(C) the number of shares of each equity
security of a class described in subsection
(d)(1) of this section held on the last day

of the reporting period by such accounts
with respect to which the institutional
investment manager possesses sole or
shared authority to exercise the voting
rights evidenced by such securities;
(D) the aggregate purchases and aggre-
gate sales during the reporting period of
each security (other than an exempted
security) effected by or for such accounts;
and
(E) with respect to any transaction or
series of transactions having a market
value of at least $500,000 or such other
amount as the Commission, by rule, may
determine, effected during the reporting
period by or for such accounts in any
equity security of a class described in
subsection (d)(1) of this section –
(i) the name of the issuer and the title,
class, and CUSIP number of the securi-
ty;
(ii) the number of shares or principal
amount of the security involved in the
transaction;
(iii) whether the transaction was a pur-
chase or sale;
(iv) the per share price or prices at
which the transaction was effected;
(v) the date or dates of the transaction;
(vi) the date or dates of the settlement
of the transaction;
(vii) the broker or dealer through whom
the transaction was effected;
(viii) the market or markets in which
the transaction was effected; and
(ix) such other related information as
the Commission, by rule, may pre-
scribe.
(2) The Commission, by rule or order, may
exempt, conditionally or unconditionally,
any institutional investment manager or
security or any class of institutional invest-
ment managers or securities from any or all
of the provisions of this subsection or the
rules thereunder.
(3) The Commission shall make available to
the public for a reasonable fee a list of all
equity securities of a class described in sub-
section (d)(1) of this section, updated no
less frequently than reports are required to
be filed pursuant to paragraph (1) of this
subsection. The Commission shall tabulate
the information contained in any report filed
35
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pursuant to this subsection in a manner
which will, in the view of the Commission,
maximise the usefulness of the information
to other Federal and State authorities and
the public. Promptly after the filing of any
such report, the Commission shall make the
information contained therein conveniently
available to the public for a reasonable fee
in such form as the Commission, by rule,
may prescribe, except that the Commission,
as it determines to be necessary or appropri-
ate in the public interest or for the protec-
tion of investors, may delay or prevent pub-
lic disclosure of any such information in
accordance with section 552 of Title 5.
Notwithstanding the preceding sentence,
any such information identifying the securi-
ties held by the account of a natural person
or an estate or trust (other than a business
trust or investment company) shall not be
disclosed to the public.
(4) In exercising its authority under this
subsection, the Commission shall determine
(and so state) that its action is necessary or
appropriate in the public interest and for the
protection of investors or to maintain fair
and orderly markets or, in granting an
exemption, that its action is consistent with
the protection of investors and the purposes
of this subsection. In exercising such
authority the Commission shall take such
steps as are within its power, including con-
sulting with the Comptroller General of the
United States, the Director of the Office of
Management and Budget, the appropriate
regulatory agencies, Federal and State
authorities which, directly or indirectly,
require reports from institutional investment
managers of information substantially simi-
lar to that called for by this subsection,
national securities exchanges, and regis-
tered securities associations, (A) to achieve
uniform, centralised reporting of informa-
tion concerning the securities holdings of
and transactions by or for accounts with
respect to which institutional investment
managers exercise investment discretion,
and (B) consistently with the objective set
forth in the preceding subparagraph, to
avoid unnecessarily duplicative reporting
by, and minimise the compliance burden on,
institutional investment managers. Federal
authorities which, directly or indirectly,
Thomashausen
require reports from institutional investment
managers of information substantially simi-
lar to that called for by this subsection shall
cooperate with the Commission in the per-
formance of its responsibilities under the
preceding sentence. An institutional invest-
ment manager which is a bank, the deposits
of which are insured in accordance with the
Federal Deposit Insurance Act [> 12
U.S.C.A. S 1811 et seq.], shall file with the
appropriate regulatory agency a copy of
every report filed with the Commission pur-
suant to this subsection.
(5) (A) For purposes of this subsection the
term “institutional investment manager”
includes any person, other than a natural
person, investing in or buying and selling
securities for its own account, and any per-
son exercising investment discretion with
respect to the account of any other person.
(B) The Commission shall adopt such
rules as it deems necessary or appropriate
to prevent duplicative reporting pursuant
to this subsection by two or more institu-
tional investment managers exercising
investment discretion with respect to the
same amount.
(g) Statement of equity security ownership
(1) Any person who is directly or indirectly
the beneficial owner of more than 5 per cen-
tum of any security of a class described in
subsection (d)(1) of this section shall send
to the issuer of the security and shall file
with the Commission a statement setting
forth, in such form and at such time as the
Commission may, by rule, prescribe –
(A) such person’s identity, residence, and
citizenship; and
(B) the number and description of the
shares in which such person has an inter-
est and the nature of such interest.
(2) If any material change occurs in the
facts set forth in the statement sent to the
issuer and filed with the Commission, an
amendment shall be transmitted to the
issuer and shall be filed with the Commis-
sion, in accordance with such rules and reg-
ulations as the Commission may prescribe
as necessary or appropriate in the public
interest or for the protection of investors.
(3) When two or more persons act as a part-
nership, limited partnership, syndicate, or
36
other group for the purpose of acquiring,
holding, or disposing of securities of an
issuer, such syndicate or group shall be
deemed a “person” for the purposes of this
subsection.
(4) In determining, for purposes of this sub-
section, any percentage of a class of any
security, such class shall be deemed to con-
sist of the amount of the outstanding securi-
ties of such class, exclusive of any securi-
ties of such class held by or for the account
of the issuer or a subsidiary of the issuer.
(5) In exercising its authority under this
subsection, the Commission shall take such
steps as it deems necessary or appropriate in
the public interest or for the protection of
investors (A) to achieve centralised report-
ing of information regarding ownership, (B)
to avoid unnecessarily duplicative reporting
by and minimise the compliance burden on
persons required to report, and (C) to tabu-
late and promptly make available the infor-
mation contained in any report filed pur-
suant to this subsection in a manner which
will, in the view of the Commission, max-
imise the usefulness of the information to
other Federal and State agencies and the
public.
(6) The Commission may, by rule or order,
exempt, in whole or in part, any person or
class of persons from any or all of the
reporting requirements of this subsection as
it deems necessary or appropriate in the
public interest or for the protection of
investors.
(h) Large trader reporting
(1) Identification requirements for large
traders: For the purpose of monitoring the
impact on the securities markets of securi-
ties transactions involving a substantial vol-
ume or a large fair market value or exercise
value and for the purpose of otherwise as-
sisting the Commission in the enforcement
of this chapter, each large trader shall –
(A) provide such information to the
Commission as the Commission may by
rule or regulation prescribe as necessary
or appropriate, identifying such large
trader and all accounts in or through
which such large trader effects such trans-
actions; and
(B) identify, in accordance with such

rules or regulations as the Commission
may prescribe as necessary or appropri-
ate, to any registered broker or dealer by
or through whom such large trader direct-
ly or indirectly effects securities transac-
tions, such large trader and all accounts
directly or indirectly maintained with
such broker or dealer by such large trader
in or through which such transactions are
effected.
(2) Recordkeeping and reporting require-
ments for brokers and dealers: Every regis-
tered broker or dealer shall make and keep
for prescribed periods such records as the
Commission by rule or regulation pre-
scribes as necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of the
purposes of this chapter, with respect to
securities transactions that equal or exceed
the reporting activity level effected directly
or indirectly by or through such registered
broker or dealer of or for any person that
such broker or dealer knows is a large trad-
er, or any person that such broker or dealer
has reason to know is a large trader on the
basis of transactions in securities effected
by or through such broker or dealer. Such
records shall be available for reporting to
the Commission, or any self-regulatory
organisation that the Commission shall
designate to receive such reports, on the
morning of the day following the day the
transactions were effected, and shall be
reported to the Commission or a self-regula-
tory organisation designated by the Com-
mission immediately upon request by the
Commission or such a self-regulatory
organisation. Such records and reports shall
be in a format and transmitted in a manner
prescribed by the Commission (including,
but not limited to, machine readable form).
(3) Aggregation rules: The Commission
may prescribe rules or regulations govern-
ing the manner in which transactions and
accounts shall be aggregated for the purpose
of this subsection, including aggregation on
the basis of common ownership or control.
(4) Examination of broker and dealer
records: All records required to be made
and kept by registered brokers and dealers
pursuant to this subsection with respect to
transactions effected by large traders are
37
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subject at any time, or from time to time, to
such reasonable periodic, special, or other
examinations by representatives of the
Commission as the Commission deems nec-
essary or appropriate in the public interest,
for the protection of investors, or otherwise
in furtherance of the purposes of this chap-
ter.
(5) Factors to be considered in Commission
actions: In exercising its authority under
this subsection, the Commission shall take
into account –
(A) existing reporting systems;
(B) the costs associated with maintaining
information with respect to transactions
effected by large traders and reporting
such information to the Commission or
self-regulatory organisations; and
(C) the relationship between the United
States and international securities mar-
kets.
(6) Exemptions: The Commission, by rule,
regulation, or order, consistent with the pur-
poses of this chapter, may exempt any per-
son or class of persons or any transaction or
class of transactions, either conditionally or
upon specified terms and conditions or for
stated periods, from the operation of this
subsection, and the rules and regulations
thereunder.
(7) Authority of Commission to limit dis-
closure of information: Notwithstanding
any other provision of law, the Commission
shall not be compelled to disclose any infor-
mation required to be kept or reported under
this subsection. Nothing in this subsection
shall authorise the Commission to withhold
information from Congress, or prevent the
Commission from complying with a request
for information from any other Federal
department or agency requesting informa-
tion for purposes within the scope of its
jurisdiction, or complying with an order of a
court of the United States in an action
brought by the United States or the
Commission. For purposes of section 552 of
Title 5, this subsection shall be considered a
statute described in subsection (b)(3)(B) of
such section 552.
(8) Definitions: For purposes of this subsec-
tion –
(A) the term “large trader” means every
person who, for his own account or an
Thomashausen
account for which he exercises invest-
ment discretion, effects transactions for
the purchase or sale of any publicly trad-
ed security or securities by use of any
means or instrumentality of interstate
commerce or of the mails, or of any facil-
ity of a national securities exchange,
directly or indirectly by or through a reg-
istered broker or dealer in an aggregate
amount equal to or in excess of the identi-
fying activity level;
(B) the term “publicly traded security”
means any equity security (including an
option on individual equity securities, and
an option on a group or index of such
securities) listed, or admitted to unlisted
trading privileges, on a national securities
exchange, or quoted in an automated
interdealer quotation system;
(C) the term “identifying activity level”
means transactions in publicly traded
securities at or above a level of volume,
fair market value, or exercise value as
shall be fixed from time to time by the
Commission by rule or regulation, speci-
fying the time interval during which such
transactions shall be aggregated;
(D) the term “reporting activity level”
means transactions in publicly traded
securities at or above a level of volume,
fair market value, or exercise value as
shall be fixed from time to time by the
Commission by rule, regulation, or order,
specifying the time interval during which
such transactions shall be aggregated; and
(E) the term “person” has the meaning
given in section 78c(a)(9) of this title and
also includes two or more persons acting as
a partnership, limited partnership, syndi-
cate, or other group, but does not include a
foreign central bank.
§§ 78dd-1. Prohibited foreign trade practices
by issuers
(a) Prohibition
It shall be unlawful for any issuer which has a
class of securities registered pursuant to section
78l of this title or which is required to file
reports under section 78o(d) of this title, or for
any officer, director, employee, or agent of
such issuer or any stockholder thereof acting on
behalf of such issuer, to make use of the mails
or any means or instrumentality of interstate
38
commerce corruptly in furtherance of an offer,
payment, promise to pay, or authorisation of
the payment of any money, or offer, gift,
promise to give, or authorisation of the giving
of anything of value to –
(1) any foreign official for purposes of –
(A) (i) influencing any act or decision of
such foreign official in his official capaci-
ty, (ii) inducing such foreign official to do
or omit to do any act in violation of the
lawful duty of such official, or (iii) secur-
ing any improper advantage; or
(B) inducing such foreign official to use
his influence with a foreign government
or instrumentality thereof to affect or
influence any act or decision of such gov-
ernment or instrumentality,
in order to assist such issuer in obtaining or
retaining business for or with, or directing
business to, any person;
(2) any foreign political party or official
thereof or any candidate for foreign political
office for purposes of –
(A) (i) influencing any act or decision of
such party, official, or candidate in its or
his official capacity, (ii) inducing such
party, official, or candidate to do or omit
to do an act in violation of the lawful duty
of such party, official, or candidate, or
(iii) securing any improper advantage; or
(B) inducing such party, official, or can-
didate to use its or his influence with a
foreign government or instrumentality
thereof to affect or influence any act or
decision of such government or instru-
mentality,
in order to assist such issuer in obtaining or
retaining business for or with, or directing
business to, any person; or
(3) any person, while knowing that all or a
portion of such money or thing of value will
be offered, given, or promised, directly or
indirectly, to any foreign official, to any
foreign political party or official thereof, or
to any candidate for foreign political office,
for purposes of –
(A) (i) influencing any act or decision of
such foreign official, political party, party
official, or candidate in his or its official
capacity, (ii) inducing such foreign offi-
cial, political party, party official, or can-
didate to do or omit to do any act in viola-
tion of the lawful duty of such foreign

official, political party, party official, or
candidate, or (iii) securing any improper
advantage; or
(B) inducing such foreign official, politi-
cal party, party official, or candidate to
use his or its influence with a foreign
government or instrumentality thereof to
affect or influence any act or decision of
such government or instrumentality,
in order to assist such issuer in obtaining or
retaining business for or with, or directing
business to, any person.
(b) Exception for routine governmental action
Subsections (a) and (g) of this section shall not
apply to any facilitating or expediting payment
to a foreign official, political party, or party
official the purpose of which is to expedite or
to secure the performance of a routine govern-
mental action by a foreign official, political
party, or party official.
(c) Affirmative defenses
It shall be an affirmative defense to actions
under subsection (a) or (g) of this section that –
(1) the payment, gift, offer, or promise of
anything of value that was made, was law-
ful under the written laws and regulations of
the foreign official’s, political party’s, party
official’s, or candidate’s country; or
(2) the payment, gift, offer, or promise of
anything of value that was made, was a rea-
sonable and bona fide expenditure, such as
travel and lodging expenses, incurred by or
on behalf of a foreign official, party, party
official, or candidate and was directly relat-
ed to –
(A) the promotion, demonstration, or
explanation of products or services; or
(B) the execution or performance of a
contract with a foreign government or
agency thereof.
(d) Guidelines by Attorney General
Not later than one year after August 23, 1988,
the Attorney General, after consultation with
the Commission, the Secretary of Commerce,
the United States Trade Representative, the
Secretary of State, and the Secretary of the
Treasury, and after obtaining the views of all
interested persons through public notice and
comment procedures, shall determine to what
extent compliance with this section would be
39
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enhanced and the business community would
be assisted by further clarification of the pre-
ceding provisions of this section and may,
based on such determination and to the extent
necessary and appropriate, issue –
(1) guidelines describing specific types of
conduct, associated with common types of
export sales arrangements and business
contracts, which for purposes of the Depart-
ment of Justice’s present enforcement poli-
cy, the Attorney General determines would
be in conformance with the preceding pro-
visions of this section; and
(2) general precautionary procedures which
issuers may use on a voluntary basis to con-
form their conduct to the Department of
Justice’s present enforcement policy regard-
ing the preceding provisions of this section.
The Attorney General shall issue the guide-
lines and procedures referred to in the pre-
ceding sentence in accordance with the pro-
visions of subchapter II of chapter 5 of Title
5 and those guidelines and procedures shall
be subject to the provisions of chapter 7 of
that title.
(e) Opinions of Attorney General
(1) The Attorney General, after consultation
with appropriate departments and agencies
of the United States and after obtaining the
views of all interested persons through pub-
lic notice and comment procedures, shall
establish a procedure to provide responses
to specific inquiries by issuers concerning
conformance of their conduct with the
Department of Justice’s present enforce-
ment policy regarding the preceding provi-
sions of this section. The Attorney General
shall, within 30 days after receiving such a
request, issue an opinion in response to that
request. The opinion shall state whether or
not certain specified prospective conduct
would, for purposes of the Department of
Justice’s present enforcement policy, vio-
late the preceding provisions of this section.
Additional requests for opinions may be
filed with the Attorney General regarding
other specified prospective conduct that is
beyond the scope of conduct specified in
previous requests. In any action brought
under the applicable provisions of this sec-
tion, there shall be a rebuttable presumption
that conduct, which is specified in a request
Thomashausen
by an issuer and for which the Attorney
General has issued an opinion that such
conduct is in conformity with the
Department of Justice’s present enforce-
ment policy, is in compliance with the pre-
ceding provisions of this section. Such a
presumption may be rebutted by a prepon-
derance of the evidence. In considering the
presumption for purposes of this paragraph,
a court shall weight all relevant factors,
including but not limited to whether the
information submitted to the Attorney
General was accurate and complete and
whether it was within the scope of the con-
duct specified in any request received by
the Attorney General. The Attorney General
shall establish the procedure required by
this paragraph in accordance with the provi-
sions of subchapter II of chapter 5 of Title 5
and that procedure shall be subject to the
provisions of chapter 7 of that title.
(2) Any document or other material which
is provided to, received by, or prepared in
the Department of Justice or any other
department or agency of the United States
in connection with a request by an issuer
under the procedure established under para-
graph (1), shall be exempt from disclosure
under section 552 of Title 5 and shall not,
except with the consent of the issuer, be
made publicly available, regardless of
whether the Attorney General responds to
such a request or the issuer withdraws such
request before receiving a response.
(3) Any issuer who has made a request to
the Attorney General under paragraph (1)
may withdraw such request prior to the time
the Attorney General issues an opinion in
response to such request. Any request so
withdrawn shall have no force or effect.
(4) The Attorney General shall, to the maxi-
mum extent practicable, provide timely
guidance concerning the Department of
Justice’s present enforcement policy with
respect to the preceding provisions of this
section to potential exporters and small
businesses that are unable to obtain spe-
cialised counsel on issues pertaining to such
provisions. Such guidance shall be limited
to responses to requests under paragraph (1)
concerning conformity of specified prospec-
tive conduct with the Department of
Justice’s present enforcement policy regard-
40
ing the preceding provisions of this section
and general explanations of compliance
responsibilities and of potential liabilities
under the preceding provisions of this sec-
tion.
(f) Definitions
For purposes of this section:
(1) (A) The term “foreign official” means any
officer or employee of a foreign govern-
ment or any department, agency, or
instrumentality thereof, or of a public
international organisation, or any person
acting in an official capacity for or on
behalf of any such government or depart-
ment, agency, or instrumentality, or for or
on behalf of any such public international
organisation.
(B) For purposes of subparagraph (A), the
term “public international organisation”
means –
(i) an organisation that is designated by
Executive Order pursuant to section 1
of the International Organisations
Immunities Act (22 U.S.C. §§ 288); or
(ii) any other international organisation
that is designated by the President by
Executive order for the purposes of this
section, effective as of the date of pub-
lication of such order in the Federal
Register.
(2) (A) A person’s state of mind is “know-
ing” with respect to conduct, a circum-
stance, or a result if –
(i) such person is aware that such per-
son is engaging in such conduct, that
such circumstance exists, or that such
result is substantially certain to occur;
or
(ii) such person has a firm belief that
such circumstance exists or that such
result is substantially certain to occur.
(B) When knowledge of the existence of
a particular circumstance is required for
an offense, such knowledge is established
if a person is aware of a high probability
of the existence of such circumstance,
unless the person actually believes that
such circumstance does not exist.
(3) (A) The term “routine governmental
action” means only an action which is
ordinarily and commonly performed by a
foreign official in –

(i) obtaining permits, licenses, or other
official documents to qualify a person
to do business in a foreign country;
(ii) processing governmental papers,
such as visas and work orders;
(iii) providing police protection, mail
pick-up and delivery, or scheduling
inspections associated with contract
performance or inspections related to
transit of goods across country;
(iv) providing phone service, power
and water supply, loading and unload-
ing cargo, or protecting perishable
products or commodities from deterio-
ration; or
(v) actions of a similar nature.
(B) The term “routine governmental
action” does not include any decision by
a foreign official whether, or on what
terms, to award new business to or to
continue business with a particular party,
or any action taken by a foreign official
involved in the decision-making process
to encourage a decision to award new
business to or continue business with a
particular party.
(g) Alternative Jurisdiction
(1) It shall also be unlawful for any issuer
organised under the laws of the United
States, or a State, territory, possession, or
commonwealth of the United States or a
political subdivision thereof and which has
a class of securities registered pursuant to
section 12 of this title or which is required
to file reports under section 15(d) of this
title, or for any United States person that is
an officer, director, employee, or agent of
such issuer or a stockholder thereof acting
on behalf of such issuer, to corruptly do any
act outside the United States in furtherance
of an offer, payment, promise to pay, or
authorisation of the payment of any money,
or offer, gift, promise to give, or authorisa-
tion of the giving of anything of value to
any of the persons or entities set forth in
paragraphs (1), (2), and (3) of this subsec-
tion (a) of this section for the purposes set
forth therein, irrespective of whether such
issuer or such officer, director, employee,
agent, or stockholder makes use of the mails
or any means or instrumentality of interstate
commerce in furtherance of such offer, gift,
41
Thomashausen
payment, promise, or authorisation.
(2) As used in this subsection, the term
“United States person” means a national of
the United States (as defined in section 101
of the Immigration and Nationality Act (8
U.S.C. §§ 1101)) or any corporation, part-
nership, association, joint-stock company,
business trust, unincorporated organisation,
or sole proprietorship organised under the
laws of the United States or any State, terri-
tory, possession, or commonwealth of the
United States, or any political subdivision
thereof.
§§ 78dd-2. Prohibited foreign trade practices
by domestic concerns
(a) Prohibition
It shall be unlawful for any domestic concern,
other than an issuer which is subject to section
78dd-1 of this title, or for any officer, director,
employee, or agent of such domestic concern or
any stockholder thereof acting on behalf of
such domestic concern, to make use of the
mails or any means or instrumentality of inter-
state commerce corruptly in furtherance of an
offer, payment, promise to pay, or authorisation
of the payment of any money, or offer, gift,
promise to give, or authorisation of the giving
of anything of value to –
(1) any foreign official for purposes of –
(A) (i) influencing any act or decision of
such foreign official in his official capaci-
ty, (ii) inducing such foreign official to do
or omit to do any act in violation of the
lawful duty of such official, or (iii) secur-
ing any improper advantage; or
(B) inducing such foreign official to use
his influence with a foreign government
or instrumentality thereof to affect or
influence any act or decision of such gov-
ernment or instrumentality,
in order to assist such domestic concern in
obtaining or retaining business for or with,
or directing business to, any person;
(2) any foreign political party or official
thereof or any candidate for foreign political
office for purposes of –
(A) (i) influencing any act or decision of
such party, official, or candidate in its or
his official capacity, (ii) inducing such
party, official, or candidate to do or omit
to do an act in violation of the lawful duty
of such party, official, or candidate, or
Thomashausen
(iii) securing any improper advantage; or
(B) inducing such party, official, or can-
didate to use its or his influence with a
foreign government or instrumentality
thereof to affect or influence any act or
decision of such government or instru-
mentality,
in order to assist such domestic concern in
obtaining or retaining business for or with,
or directing business to, any person;
(3) any person, while knowing that all or a
portion of such money or thing of value will
be offered, given, or promised, directly or
indirectly, to any foreign official, to any
foreign political party or official thereof, or
to any candidate for foreign political office,
for purposes of –
(A) (i) influencing any act or decision of
such foreign official, political party, party
official, or candidate in his or its official
capacity, (ii) inducing such foreign offi-
cial, political party, party official, or can-
didate to do or omit to do any act in viola-
tion of the lawful duty of such foreign
official, political party, party official, or
candidate, or (iii) securing any improper
advantage; or
(B) inducing such foreign official, politi-
cal party, party official, or candidate to
use his or its influence with a foreign
government or instrumentality thereof to
affect or influence any act or decision of
such government or instrumentality,
in order to assist such domestic concern in
obtaining or retaining business for or with,
or directing business to, any person.
(b) Exception for routine governmental action
Subsections (a) and (i) of this section shall not
apply to any facilitating or expediting payment
to a foreign official, political party, or party
official the purpose of which is to expedite or
to secure the performance of a routine govern-
mental action by a foreign official, political
party, or party official.
(c) Affirmative defenses
It shall be an affirmative defense to actions
under subsection (a) or (i) of this section that –
(1) the payment, gift, offer, or promise of
anything of value that was made, was law-
ful under the written laws and regulations of
the foreign official’s, political party’s, party
42
official’s, or candidate’s country; or
(2) the payment, gift, offer, or promise of
anything of value that was made, was a rea-
sonable and bona fide expenditure, such as
travel and lodging expenses, incurred by or
on behalf of a foreign official, party, party
official, or candidate and was directly relat-
ed to –
(A) the promotion, demonstration, or
explanation of products or services; or
(B) the execution or performance of a
contract with a foreign government or
agency thereof.
(d) Injunctive relief
(1) When it appears to the Attorney General
that any domestic concern to which this sec-
tion applies, or officer, director, employee,
agent, or stockholder thereof, is engaged, or
about to engage, in any act or practice con-
stituting a violation of subsection (a) or (i)
of this section, the Attorney General may,
in his discretion, bring a civil action in an
appropriate district court of the United
States to enjoin such act or practice, and
upon a proper showing, a permanent injunc-
tion or a temporary restraining order shall
be granted without bond.
(2) For the purpose of any civil investiga-
tion which, in the opinion of the Attorney
General, is necessary and proper to enforce
this section, the Attorney General or his
designee are empowered to administer oaths
and affirmations, subpoena witnesses, take
evidence, and require the production of any
books, papers, or other documents which
the Attorney General deems relevant or
material to such investigation. The atten-
dance of witnesses and the production of
documentary evidence may be required
from any place in the United States, or any
territory, possession, or commonwealth of
the United States, at any designated place of
hearing.
(3) In case of contumacy by, or refusal to
obey a subpoena issued to, any person, the
Attorney General may invoke the aid of any
court of the United States within the juris-
diction of which such investigation or pro-
ceeding is carried on, or where such person
resides or carries on business, in requiring
the attendance and testimony of witnesses
and the production of books, papers, or

other documents. Any such court may issue
an order requiring such person to appear
before the Attorney General or his designee,
there to produce records, if so ordered, or to
give testimony touching the matter under
investigation. Any failure to obey such
order of the court may be punished by such
court as a contempt thereof.
All process in any such case may be served in
the judicial district in which such person
resides or may be found. The Attorney General
may make such rules relating to civil investiga-
tions as may be necessary or appropriate to
implement the provisions of this subsection.
(e) Guidelines by Attorney General
Not later than 6 months after August 23, 1988,
the Attorney General, after consultation with the
Securities and Exchange Commission, the
Secretary of Commerce, the United States Trade
Representative, the Secretary of State, and the
Secretary of the Treasury, and after obtaining
the views of all interested persons through pub-
lic notice and comment procedures, shall deter-
mine to what extent compliance with this sec-
tion would be enhanced and the business com-
munity would be assisted by further clarification
of the preceding provisions of this section and
may, based on such determination and to the
extent necessary and appropriate, issue –
(1) guidelines describing specific types of
conduct, associated with common types of
export sales arrangements and business
contracts, which for purposes of the
Department of Justice’s present enforce-
ment policy, the Attorney General deter-
mines would be in conformance with the
preceding provisions of this section; and
(2) general precautionary procedures which
domestic concerns may use on a voluntary
basis to conform their conduct to the
Department of Justice’s present enforce-
ment policy regarding the preceding provi-
sions of this section.
The Attorney General shall issue the guidelines
and procedures referred to in the preceding sen-
tence in accordance with the provisions of sub-
chapter II of chapter 5 of Title 5 and those
guidelines and procedures shall be subject to
the provisions of chapter 7 of that title.
(f) Opinions of Attorney General
(1) The Attorney General, after consultation
43
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with appropriate departments and agencies
of the United States and after obtaining the
views of all interested persons through pub-
lic notice and comment procedures, shall
establish a procedure to provide responses
to specific inquiries by domestic concerns
concerning conformance of their conduct
with the Department of Justice’s present
enforcement policy regarding the preceding
provisions of this section. The Attorney
General shall, within 30 days after receiving
such a request, issue an opinion in response
to that request. The opinion shall state
whether or not certain specified prospective
conduct would, for purposes of the
Department of Justice’s present enforce-
ment policy, violate the preceding provi-
sions of this section. Additional requests for
opinions may be filed with the Attorney
General regarding other specified prospec-
tive conduct that is beyond the scope of
conduct specified in previous requests. In
any action brought under the applicable pro-
visions of this section, there shall be a
rebuttable presumption that conduct, which
is specified in a request by a domestic con-
cern and for which the Attorney General
has issued an opinion that such conduct is in
conformity with the Department of Justice’s
present enforcement policy, is in compli-
ance with the preceding provisions of this
section. Such a presumption may be
rebutted by a preponderance of the evi-
dence. In considering the presumption for
purposes of this paragraph, a court shall
weigh all relevant factors, including but not
limited to whether the information submit-
ted to the Attorney General was accurate
and complete and whether it was within the
scope of the conduct specified in any
request received by the Attorney General.
The Attorney General shall establish the
procedure required by this paragraph in
accordance with the provisions of subchap-
ter II of chapter 5 of Title 5 and that proce-
dure shall be subject to the provisions of
chapter 7 of that title.
(2) Any document or other material which
is provided to, received by, or prepared in
the Department of Justice or any other
department or agency of the United States
in connection with a request by a domestic
concern under the procedure established
Thomashausen
under paragraph (1), shall be exempt from
disclosure under section 552 of Title 5 and
shall not, except with the consent of the
domestic concern, be made publicly avail-
able, regardless of whether the Attorney
General responds to such a request or the
domestic concern withdraws such request
before receiving a response.
(3) Any domestic concern who has made a
request to the Attorney General under para-
graph (1) may withdraw such request prior
to the time the Attorney General issues an
opinion in response to such request. Any
request so withdrawn shall have no force or
effect.
(4) The Attorney General shall, to the maxi-
mum extent practicable, provide timely
guidance concerning the Department of
Justice’s present enforcement policy with
respect to the preceding provisions of this
section to potential exporters and small
businesses that are unable to obtain spe-
cialised counsel on issues pertaining to such
provisions. Such guidance shall be limited
to responses to requests under paragraph (1)
concerning conformity of specified prospec-
tive conduct with the Department of
Justice’s present enforcement policy regard-
ing the preceding provisions of this section
and general explanations of compliance
responsibilities and of potential liabilities
under the preceding provisions of this sec-
tion.
(g) Penalties
(1) (A) Any domestic concern that is not a
natural person and that violates subsec-
tion (a) or (i) of this section shall be fined
not more than $2,000,000.
(B) Any domestic concern that is not a
natural person and that violates subsec-
tion (a) or (i) of this section shall be sub-
ject to a civil penalty of not more than
$10,000 imposed in an action brought by
the Attorney General.
(2) (A) Any natural person that is an officer,
director, employee, or agent of a domestic
concern, or stockholder acting on behalf
of such domestic concern, who willfully
violates subsection (a) or (i) of this sec-
tion shall be fined not more than
$100,000 or imprisoned not more than 5
years, or both.
44
(B) Any natural person that is an officer,
director, employee, or agent of a domestic
concern, or stockholder acting on behalf
of such domestic concern, who violates
subsection (a) or (i) of this section shall
be subject to a civil penalty of not more
than $10,000 imposed in an action
brought by the Attorney General.
(3) Whenever a fine is imposed under para-
graph (2) upon any officer, director, em-
ployee, agent, or stockholder of a domestic
concern, such fine may not be paid, directly
or indirectly, by such domestic concern.
(h) Definitions
For purposes of this section:
(1) The term “domestic concern” means –
(A) any individual who is a citizen,
national, or resident of the United States;
and
(B) any corporation, partnership, associa-
tion, joint-stock company, business trust,
unincorporated organisation, or sole pro-
prietorship which has its principal place
of business in the United States, or which
is organised under the laws of a State of
the United States or a territory, posses-
sion, or commonwealth of the United
States.
(2) (A) The term “foreign official” means
any officer or employee of a foreign gov-
ernment or any department, agency, or
instrumentality thereof, or of a public
international organisation, or any person
acting in an official capacity for or on
behalf of any such government or depart-
ment, agency, or instrumentality, or for or
on behalf of any such public international
organisation.
(B) For purposes of subparagraph (A), the
term “public international organisation”
means –
(i) an organisation that has been desig-
nated by Executive order pursuant to
Section 1 of the International
Organisations Immunities Act (22
U.S.C. §§ 288); or
(ii) any other international organisation
that is designated by the President by
Executive order for the purposes of this
section, effective as of the date of pub-
lication of such order in the Federal
Register.

(3) (A) A person’s state of mind is “know-
ing” with respect to conduct, a circum-
stance, or a result if –
(i) such person is aware that such per-
son is engaging in such conduct, that
such circumstance exists, or that such
result is substantially certain to occur;
or
(ii) such person has a firm belief that
such circumstance exists or that such
result is substantially certain to occur.
(B) When knowledge of the existence of
a particular circumstance is required for
an offense, such knowledge is established
if a person is aware of a high probability
of the existence of such circumstance,
unless the person actually believes that
such circumstance does not exist.
(4) (A) The term “routine governmental
action” means only an action which is
ordinarily and commonly performed by a
foreign official in –
(i) obtaining permits, licenses, or other
official documents to qualify a person
to do business in a foreign country;
(ii) processing governmental papers,
such as visas and work orders;
(iii) providing police protection, mail
pick-up and delivery, or scheduling
inspections associated with contract
performance or inspections related to
transit of goods across country;
(iv) providing phone service, power
and water supply, loading and unload-
ing cargo, or protecting perishable
products or commodities from deterio-
ration; or
(v) actions of a similar nature.
(B) The term “routine governmental
action” does not include any decision by
a foreign official whether, or on what
terms, to award new business to or to
continue business with a particular party,
or any action taken by a foreign official
involved in the decision-making process
to encourage a decision to award new
business to or continue business with a
particular party.
(5) The term “interstate commerce” means
trade, commerce, transportation, or commu-
nication among the several States, or
between any foreign country and any State
or between any State and any place or ship
45
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outside thereof, and such term includes the
intrastate use of –
(A) a telephone or other interstate means
of communication, or
(B) any other interstate instrumentality.
(i) Alternative jurisdiction
(1) It shall also be unlawful for any United
States person to corruptly do any act outside
the United States in furtherance of an offer,
payment, promise to pay, or authorisation of
the payment of any money, or offer, gift,
promise to give, or authorisation of the giv-
ing of anything of value to any of the per-
sons or entities set forth in paragraphs (1),
(2), and (3) of subsection (a), for the pur-
poses set forth therein, irrespective of
whether such United States person makes
use of the mails or any means or instrumen-
tality of interstate commerce in furtherance
of such offer, gift, payment, promise, or
authorisation.
(2) As used in this subsection, a “United
States person” means a national of the
United States (as defined in section 101 of
the Immigration and Nationality Act (8
U.S.C. §§ 1101)) or any corporation, part-
nership, association, joint-stock company,
business trust, unincorporated organisation,
or sole proprietorship organised under the
laws of the United States or any State, terri-
tory, possession, or commonwealth of the
United States, or any political subdivision
thereof.
§§ 78dd-3. Prohibited foreign trade practices
by persons other than issuers or domestic
concerns
(a) Prohibition
It shall be unlawful for any person other than
an issuer that is subject to section 30A of the
Securities Exchange Act of 1934 or a domestic
concern, as defined in section 104 of this Act,
or for any officer, director, employee, or agent
of such person or any stockholder thereof act-
ing on behalf of such person, while in the terri-
tory of the United States, corruptly to make use
of the mails or any means or instrumentality of
interstate commerce or to do any other act in
furtherance of an offer, payment, promise to
pay, or authorisation of the payment of any
money, or offer, gift, promise to give, or autho-
risation of the giving of anything of value to –
Thomashausen
(1) any foreign official for purposes of –
(A) (i) influencing any act or decision of
such foreign official in his official capaci-
ty, (ii) inducing such foreign official to do
or omit to do any act in violation of the
lawful duty of such official, or (iii) secur-
ing any improper advantage; or
(B) inducing such foreign official to use
his influence with a foreign government
or instrumentality thereof to affect or
influence any act or decision of such gov-
ernment or instrumentality,
in order to assist such person in obtaining or
retaining business for or with, or directing
business to, any person;
(2) any foreign political party or official
thereof or any candidate for foreign political
office for purposes of –
(A) (i) influencing any act or decision of
such party, official, or candidate in its or
his official capacity, (ii) inducing such
party, official, or candidate to do or omit
to do an act in violation of the lawful duty
of such party, official, or candidate, or
(iii) securing any improper advantage; or
(B) inducing such party, official, or can-
didate to use its or his influence with a
foreign government or instrumentality
thereof to affect or influence any act or
decision of such government or instru-
mentality,
in order to assist such person in obtaining or
retaining business for or with, or directing
business to, any person; or
(3) any person, while knowing that all or a
portion of such money or thing of value will
be offered, given, or promised, directly or
indirectly, to any foreign official, to any
foreign political party or official thereof, or
to any candidate for foreign political office,
for purposes of –
(A) (i) influencing any act or decision of
such foreign official, political party, party
official, or candidate in his or its official
capacity, (ii) inducing such foreign offi-
cial, political party, party official, or can-
didate to do or omit to do any act in viola-
tion of the lawful duty of such foreign
official, political party, party official, or
candidate, or (iii) securing any improper
advantage; or
(B) inducing such foreign official, politi-
cal party, party official, or candidate to
46
use his or its influence with a foreign
government or instrumentality thereof to
affect or influence any act or decision of
such government or instrumentality,
in order to assist such person in obtaining or
retaining business for or with, or directing
business to, any person.
(b) Exception for routine governmental action
Subsection (a) of this section shall not apply to
any facilitating or expediting payment to a for-
eign official, political party, or party official the
purpose of which is to expedite or to secure the
performance of a routine governmental action
by a foreign official, political party, or party
official.
(c) Affirmative defenses
It shall be an affirmative defense to actions
under subsection (a) of this section that –
(1) the payment, gift, offer, or promise of
anything of value that was made, was law-
ful under the written laws and regulations of
the foreign official’s, political party’s, party
official’s, or candidate’s country; or
(2) the payment, gift, offer, or promise of
anything of value that was made, was a rea-
sonable and bona fide expenditure, such as
travel and lodging expenses, incurred by or
on behalf of a foreign official, party, party
official, or candidate and was directly relat-
ed to –
(A) the promotion, demonstration, or
explanation of products or services; or
(B) the execution or performance of a
contract with a foreign government or
agency thereof.
(d) Injunctive relief
(1) When it appears to the Attorney General
that any person to which this section
applies, or officer, director, employee,
agent, or stockholder thereof, is engaged, or
about to engage, in any act or practice con-
stituting a violation of subsection (a) of this
section, the Attorney General may, in his
discretion, bring a civil action in an appro-
priate district court of the United States to
enjoin such act or practice, and upon a
proper showing, a permanent injunction or a
temporary restraining order shall be granted
without bond.
(2) For the purpose of any civil investiga-

tion which, in the opinion of the Attorney
General, is necessary and proper to enforce
this section, the Attorney General or his
designee are empowered to administer oaths
and affirmations, subpoena witnesses, take
evidence, and require the production of any
books, papers, or other documents which
the Attorney General deems relevant or
material to such investigation. The atten-
dance of witnesses and the production of
documentary evidence may be required
from any place in the United States, or any
territory, possession, or commonwealth of
the United States, at any designated place of
hearing.
(3) In case of contumacy by, or refusal to
obey a subpoena issued to, any person, the
Attorney General may invoke the aid of any
court of the United States within the juris-
diction of which such investigation or pro-
ceeding is carried on, or where such person
resides or carries on business, in requiring
the attendance and testimony of witnesses
and the production of books, papers, or
other documents. Any such court may issue
an order requiring such person to appear
before the Attorney General or his designee,
there to produce records, if so ordered, or to
give testimony touching the matter under
investigation. Any failure to obey such
order of the court may be punished by such
court as a contempt thereof.
(4) All process in any such case may be
served in the judicial district in which such
person resides or may be found. The
Attorney General may make such rules
relating to civil investigations as may be
necessary or appropriate to implement the
provisions of this subsection.
(e) Penalties
(1) (A) Any juridical person that violates sub-
section (a) of this section shall be fined
not more than $2,000,000.
(B) Any juridical person that violates sub-
section (a) of this section shall be subject
to a civil penalty of not more than
$10,000 imposed in an action brought by
the Attorney General.
(2) (A) Any natural person who willfully vio-
lates subsection (a) of this section shall be
fined not more than $100,000 or impris-
oned not more than 5 years, or both.
47
Thomashausen
(B) Any natural person who violates sub-
section (a) of this section shall be subject
to a civil penalty of not more than
$10,000 imposed in an action brought by
the Attorney General.
(3) Whenever a fine is imposed under para-
graph (2) upon any officer, director,
employee, agent, or stockholder of a person,
such fine may not be paid, directly or indi-
rectly, by such person.
(f) Definitions
For purposes of this section:
(1) The term “person,” when referring to an
offender, means any natural person other
than a national of the United States (as
defined in 8 U.S.C. §§ 1101) or any
corporation, partnership, association,
joint-stock company, business trust,
unincorporated organisation, or sole pro-
prietorship organised under the law of a
foreign nation or a political subdivision
thereof.
(2) (A) The term “foreign official” means any
officer or employee of a foreign govern-
ment or any department, agency, or
instrumentality thereof, or of a public
international organisation, or any person
acting in an official capacity for or on
behalf of any such government or depart-
ment, agency, or instrumentality, or for or
on behalf of any such public international
organisation.
(B) For purposes of subparagraph (A), the
term “public international organisation”
means –
(i) an organisation that has been desig-
nated by Executive Order pursuant to
Section 1 of the International
Organisations Immunities Act (22
U.S.C. §§ 288); or
(ii) any other international organisation
that is designated by the President by
Executive order for the purposes of this
section, effective as of the date of pub-
lication of such order in the Federal
Register.
(3) (A) A person’s state of mind is “know-
ing” with respect to conduct, a circum-
stance, or a result if –
(i) such person is aware that such per-
son is engaging in such conduct, that
such circumstance exists, or that such
Thomashausen
result is substantially certain to occur;
or
(ii) such person has a firm belief
that such circumstance exists or that
such result is substantially certain to
occur.
(B) When knowledge of the existence of
a particular circumstance is required for
an offense, such knowledge is established
if a person is aware of a high probability
of the existence of such circumstance,
unless the person actually believes that
such circumstance does not exist.
(4) (A) The term “routine governmental
action” means only an action which is
ordinarily and commonly performed by a
foreign official in –
(i) obtaining permits, licenses, or other
official documents to qualify a person
to do business in a foreign country;
(ii) processing governmental papers,
such as visas and work orders;
(iii) providing police protection, mail
pick-up and delivery, or scheduling
inspections associated with contract
performance or inspections related to
transit of goods across country;
(iv) providing phone service, power
and water supply, loading and unload-
ing cargo, or protecting perishable
products or commodities from deterio-
ration; or
(v) actions of a similar nature.
(B) The term “routine governmental
action” does not include any decision by
a foreign official whether, or on what
terms, to award new business to or to
continue business with a particular party,
or any action taken by a foreign official
involved in the decision-making process
to encourage a decision to award new
business to or continue business with a
particular party.
(5) The term “interstate commerce” means
trade, commerce, transportation, or commu-
nication among the several States, or
between any foreign country and any State
or between any State and any place or ship
outside thereof, and such term includes the
intrastate use of –
(A) a telephone or other interstate means
of communication, or
(B) any other interstate instrumentality.
48
§§ 78ff. Penalties
(a) Willful violations; false and misleading
statements
Any person who willfully violates any provi-
sion of this chapter (other than section 78dd-1
of this title), or any rule or regulation thereun-
der the violation of which is made unlawful or
the observance of which is required under the
terms of this chapter, or any person who will-
fully and knowingly makes, or causes to be
made, any statement in any application, report,
or document required to be filed under this
chapter or any rule or regulation thereunder or
any undertaking contained in a registration
statement as provided in subsection (d) of sec-
tion 78o of this title, or by any self-regulatory
organisation in connection with an application
for membership or participation therein or to
become associated with a member thereof,
which statement was false or misleading with
respect to any material fact, shall upon convic-
tion be fined not more than $1,000,000, or
imprisoned not more than 10 years, or both,
except that when such person is a person other
than a natural person, a fine not exceeding
$2,500,000 may be imposed; but no person
shall be subject to imprisonment under this sec-
tion for the violation of any rule or regulation if
he proves that he had no knowledge of such
rule or regulation.
(b) Failure to file information, documents, or
reports
Any issuer which fails to file information, docu-
ments, or reports required to be filed under sub-
section (d) of section 78o of this title or any rule
or regulation thereunder shall forfeit to the
United States the sum of $100 for each and
every day such failure to file shall continue.
Such forfeiture, which shall be in lieu of any
criminal penalty for such failure to file which
might be deemed to arise under subsection (a) of
this section, shall be payable into the Treasury of
the United States and shall be recoverable in a
civil suit in the name of the United States.
(c) Violations by issuers, officers, directors,
stockholders, employees, or agents of issuers
(1) (A) Any issuer that violates subsection (a)
or (g) of section 30A of this title shall be
fined not more than $2,000,000.
(B) Any issuer that violates subsection (a)
or (g) of section 30A of this title shall be

subject to a civil penalty of not more than
$10,000 imposed in an action brought by
the Commission.
(2) (A) Any officer, director, employee, or
agent of an issuer, or stockholder acting
on behalf of such issuer, who willfully
violates subsection (a) or (g) of section
30A of this title shall be fined not more
than $100,000, or imprisoned not more
than 5 years, or both.
(B) Any officer, director, employee, or
ANNEX V: ORGANISATION FOR ECONOMIC COOPERATION AND DEVELOPMENT CONVENTION ON
COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS
Preamble
The Parties,
Considering that bribery is a widespread phe-
nomenon in international business transactions,
including trade and investment, which raises
serious moral and political concerns, under-
mines good governance and economic develop-
ment, and distorts international competitive
conditions;
Considering that all countries share a respon-
sibility to combat bribery in international busi-
ness transactions;
Having regard to the Revised Recommen-
dation on Combating Bribery in International
Business Transactions, adopted by the Council
of the Organisation for Economic Cooperation
and Development (OECD) on 23 May 1997,
C(97)123/FINAL, which, inter alia, called for
49
Thomashausen
agent of an issuer, or stockholder acting
on behalf of such issuer, who violates
subsection (a) or (g) of section 30A of
this title shall be subject to a civil penalty
of not more than $10,000 imposed in an
action brought by the Commission.
(3) Whenever a fine is imposed under para-
graph (2) upon any officer, director,
employee, agent, or stockholder of an
issuer, such fine may not be paid, directly or
indirectly, by such issuer.
effective measures to deter, prevent and combat
the bribery of foreign public officials in con-
nection with international business transactions,
in particular the prompt criminalisation of such
bribery in an effective and coordinated manner
and in conformity with the agreed common ele-
ments set out in that Recommendation and with
the jurisdictional and other basic legal princi-
ples of each country;
Welcoming other recent developments which
further advance international understanding and
cooperation in combating bribery of public offi-
cials, including actions of the United Nations,
the World Bank, the International Monetary
Fund, the World Trade Organisation, the
Organisation of American States, the Council
of Europe and the European Union;
Welcoming the efforts of companies, busi-
Thomashausen
ness organisations and trade unions as well as
other non-governmental organisations to com-
bat bribery;
Recognising the role of governments in the
prevention of solicitation of bribes from indi-
viduals and enterprises in international business
transactions;
Recognising that achieving progress in this
field requires not only efforts on a national
level but also multilateral cooperation, monitor-
ing and follow-up;
Recognising that achieving equivalence
among the measures to be taken by the Parties
is an essential object and purpose of the Con-
vention, which requires that the Convention be
ratified without derogations affecting this
equivalence;
Have agreed as follows:
Article 1 – The Offence of Bribery of
Foreign Public Officials
1. Each Party shall take such measures as may
be necessary to establish that it is a criminal
offence under its law for any person inten-
tionally to offer, promise or give any undue
pecuniary or other advantage, whether
directly or through intermediaries, to a for-
eign public official, for that official or for a
third party, in order that the official act or
refrain from acting in relation to the perfor-
mance of official duties, in order to obtain
or retain business or other improper advan-
tage in the conduct of international busi-
ness.
2. Each Party shall take any measures neces-
sary to establish that complicity in, includ-
ing incitement, aiding and abetting, or
authorisation of an act of bribery of a for-
eign public official shall be a criminal
offence. Attempt and conspiracy to bribe a
foreign public official shall be criminal
offences to the same extent as attempt and
conspiracy to bribe a public official of that
Party.
3. The offences set out in paragraphs 1 and 2
above are hereinafter referred to as “bribery
of a foreign public official”.
4. For the purpose of this Convention:
a. “foreign public official” means any
person holding a legislative, administra-
tive or judicial office of a foreign country,
whether appointed or elected; any person
exercising a public function for a foreign
50
country, including for a public agency or
public enterprise; and any official or
agent of a public international organisa-
tion;
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 offi-
cial’s authorised competence.
Article 2 – Responsibility of Legal Persons
Each Party shall take such measures as may be
necessary, in accordance with its legal princi-
ples, to establish the liability of legal persons
for the bribery of a foreign public official.
Article 3 – Sanctions
1. The bribery of a foreign public official shall
be punishable by effective, proportionate
and dissuasive criminal penalties. The range
of penalties shall be comparable to that
applicable to the bribery of the Party’s own
public officials and shall, in the case of nat-
ural persons, include deprivation of liberty
sufficient to enable effective mutual legal
assistance and extradition.
2. In the event that, under the legal system of a
Party, criminal responsibility is not applica-
ble to legal persons, that Party shall ensure
that legal persons shall be subject to effec-
tive, proportionate and dissuasive non-crim-
inal sanctions, including monetary sanc-
tions, for bribery of foreign public officials.
3. Each Party shall take such measures as may
be necessary to provide that the bribe and
the proceeds of the bribery of a foreign pub-
lic official, or property the value of which
corresponds to that of such proceeds, are
subject to seizure and confiscation or that
monetary sanctions of comparable effect are
applicable.
4. Each Party shall consider the imposition of
additional civil or administrative sanctions
upon a person subject to sanctions for the
bribery of a foreign public official.
Article 4 – Jurisdiction
1. Each Party shall take such measures as may
be necessary to establish its jurisdiction
over the bribery of a foreign public official

when the offence is committed in whole or
in part in its territory.
2. Each Party which has jurisdiction to prose-
cute its nationals for offences committed
abroad shall take such measures as may be
necessary to establish its jurisdiction to do
so in respect of the bribery of a foreign pub-
lic official, according to the same princi-
ples.
3. When more than one Party has jurisdiction
over an alleged offence described in this
Convention, the Parties involved shall, at
the request of one of them, consult with a
view to determining the most appropriate
jurisdiction for prosecution.
4. Each Party shall review whether its current
basis for jurisdiction is effective in the fight
against the bribery of foreign public offi-
cials and, if it is not, shall take remedial
steps.
Article 5 – Enforcement
Investigation and prosecution of the bribery of
a foreign public official shall be subject to the
applicable rules and principles of each Party.
They 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.
Article 6 – Statute of Limitations
Any statute of limitations applicable to the
offence of bribery of a foreign public official
shall allow an adequate period of time for the
investigation and prosecution of this offence.
Article 7 – Money Laundering
Each Party which has made bribery of its own
public official a predicate offence for the pur-
pose of the application of its money laundering
legislation shall do so on the same terms for the
bribery of a foreign public official, without
regard to the place where the bribery occurred.
Article 8 – Accounting
1. In order to combat bribery of foreign public
officials effectively, each Party shall take
such measures as may be necessary, within
the framework of its laws and regulations
regarding the maintenance of books and
records, financial statement disclosures, and
accounting and auditing standards, to pro-
hibit the establishment of off-the-books
51
Thomashausen
accounts, the making of off-the-books or
inadequately identified transactions, the
recording of non-existent expenditures, the
entry of liabilities with incorrect identifica-
tion of their object, as well as the use of
false documents, by companies subject to
those laws and regulations, for the purpose
of bribing foreign public officials or of hid-
ing such bribery.
2. Each Party shall provide effective, propor-
tionate and dissuasive civil, administrative
or criminal penalties for such omissions and
falsifications in respect of the books,
records, accounts and financial statements
of such companies.
Article 9 – Mutual Legal Assistance
1. Each Party shall, to the fullest extent possi-
ble under its laws and relevant treaties and
arrangements, provide prompt and effective
legal assistance to another Party for the pur-
pose of criminal investigations and proceed-
ings brought by a Party concerning offences
within the scope of this Convention and for
non-criminal proceedings within the scope
of this Convention brought by a Party
against a legal person. The requested Party
shall inform the requesting Party, without
delay, of any additional information or doc-
uments needed to support the request for
assistance and, where requested, of the sta-
tus and outcome of the request for assis-
tance.
2. Where a Party makes mutual legal assis-
tance conditional upon the existence of dual
criminality, dual criminality shall be
deemed to exist if the offence for which the
assistance is sought is within the scope of
this Convention.
3. A Party shall not decline to render mutual
legal assistance for criminal matters within
the scope of this Convention on the ground
of bank secrecy.
Article 10 – Extradition
1. Bribery of a foreign public official shall be
deemed to be included as an extraditable
offence under the laws of the Parties and the
extradition treaties between them.
2. If a Party which makes extradition condi-
tional on the existence of an extradition
treaty receives a request for extradition
from another Party with which it has no
Thomashausen
extradition treaty, it may consider this
Convention to be the legal basis for extradi-
tion in respect of the offence of bribery of a
foreign public official.
3. Each Party shall take any measures neces-
sary to assure either that it can extradite its
nationals or that it can prosecute its nation-
als for the offence of bribery of a foreign
public official. A Party which declines a
request to extradite a person for bribery of a
foreign public official solely on the ground
that the person is its national shall submit
the case to its competent authorities for the
purpose of prosecution.
4. Extradition for bribery of a foreign public
official is subject to the conditions set out in
the domestic law and applicable treaties and
arrangements of each Party. Where a Party
makes extradition conditional upon the
existence of dual criminality, that condition
shall be deemed to be fulfilled if the offence
for which extradition is sought is within the
scope of Article 1 of this Convention.
Article 11 – Responsible Authorities
For the purposes of Article 4, paragraph 3, on
consultation, Article 9, on mutual legal assis-
tance and Article 10, on extradition, each Party
shall notify to the Secretary-General of the
OECD an authority or authorities responsible
for making and receiving requests, which shall
serve as channel of communication for these
matters for that Party, without prejudice to
other arrangements between Parties.
Article 12 – Monitoring and Follow-Up
The Parties shall cooperate in carrying out a
programme of systematic follow-up to monitor
and promote the full implementation of this
Convention. Unless otherwise decided by con-
sensus of the Parties, this shall be done in the
framework of the OECD Working Group on
Bribery in International Business Transactions
and according to its terms of reference, or with-
in the framework and terms of reference of any
successor to its functions, and Parties shall bear
the costs of the programme in accordance with
the rules applicable to that body.
Article 13 – Signature and Accession
1. Until its entry into force, this Convention
shall be open for signature by OECD mem-
bers and by non-members which have been
52
invited to become full participants in its
Working Group on Bribery in International
Business Transactions.
2. Subsequent to its entry into force, this
Convention shall be open to accession by
any non-signatory which is a member of the
OECD or has become a full participant in
the Working Group on Bribery in Inter-
national Business Transactions or any suc-
cessor to its functions. For each such non-
signatory, the Convention shall enter into
force on the sixtieth day following the date
of deposit of its instrument of accession.
Article 14 – Ratification and Depositary
1. This Convention is subject to acceptance,
approval or ratification by the Signatories,
in accordance with their respective laws.
2. Instruments of acceptance, approval, ratifi-
cation or accession shall be deposited with
the Secretary-General of the OECD, who
shall serve as Depositary of this
Convention.
Article 15 – Entry into Force
1. This Convention shall enter into force on
the sixtieth day following the date upon
which five of the ten countries which have
the ten largest export shares (see annex),
and which represent by themselves at least
sixty per cent of the combined total exports
of those ten countries, have deposited their
instruments of acceptance, approval, or rati-
fication. For each signatory depositing its
instrument after such entry into force, the
Convention shall enter into force on the six-
tieth day after deposit of its instrument.
2. If, after 31 December 1998, the Convention
has not entered into force under paragraph 1
above, any signatory which has deposited
its instrument of acceptance, approval or
ratification may declare in writing to the
Depositary its readiness to accept entry into
force of this Convention under this para-
graph 2. The Convention shall enter into
force for such a signatory on the sixtieth
day following the date upon which such
declarations have been deposited by at least
two signatories. For each signatory deposit-
ing its declaration after such entry into
force, the Convention shall enter into force
on the sixtieth day following the date of
deposit.

Article 16 – Amendment
Any Party may propose the amendment of this
Convention. A proposed amendment shall be
submitted to the Depositary which shall com-
municate it to the other Parties at least sixty
days before convening a meeting of the Parties
to consider the proposed amendment. An
amendment adopted by consensus of the
Parties, or by such other means as the Parties
may determine by consensus, shall enter into
force sixty days after the deposit of an instru-
ment of ratification, acceptance or approval by
all of the Parties, or in such other circumstances
The Convention was adopted 21 November
1997, by all OECD member countries
(Australia, Austria, Belgium, Canada, Czech
Republic, Denmark, Finland, France,
Germany, Greece, Hungary, Iceland, Ireland,
Italy, Japan, Korea, Luxembourg, Mexico, the
Netherlands, New Zealand, Norway, Poland,
Portugal, Spain, Sweden, Switzerland, Turkey,
United Kingdom, United States) and five non-
member countries (Argentina, Brazil, Bulgaria,
Chile and the Slovak Republic). Signature of
the Convention took place in Paris on 17
December 1997. The signatories have since
then began implementing the Convention by
passing the required national legislation and
making amendments to their national criminal
justice laws and Penal Codes.
A set of official commentaries was also
issued by the OECD in regard to the
Convention and is reproduced hereafter:
Commentaries on the Convention on
Combating Bribery of Officials in
International Business Transactions.
Adopted by the Negotiating Conference on
21 November 1997
General
This Convention deals with what, in the law of
some countries, is called “active corruption” or
“active bribery”, meaning the offence commit-
53
Thomashausen
as may be specified by the Parties at the time of
adoption of the amendment.
Article 17 – Withdrawal
A Party may withdraw from this Convention by
submitting written notification to the Deposit-
ary. Such withdrawal shall be effective one
year after the date of the receipt of the notifica-
tion. After withdrawal, cooperation shall con-
tinue between the Parties and the Party which
has withdrawn on all requests for assistance or
extradition made before the effective date of
withdrawal which remain pending.
ted by the person who promises or gives the
bribe, as contrasted with “passive bribery”, the
offence committed by the official who receives
the bribe. The Convention does not utilise the
term “active bribery” simply to avoid it being
misread by the non-technical reader as imply-
ing that the briber has taken the initiative and
the recipient is a passive victim. In fact, in a
number of situations, the recipient will have
induced or pressured the briber and will have
been, in that sense, the more active.
This Convention seeks to assure a functional
equivalence among the measures taken by the
Parties to sanction bribery of foreign public
officials, without requiring uniformity or
changes in fundamental principles of a Party’s
legal system.
Article 1. The Offence of Bribery of Foreign
Public Officials
Re paragraph 1:
Article 1 establishes a standard to be met by
Parties, but does not require them to utilise its
precise terms in defining the offence under
their domestic laws. A Party may use various
approaches to fulfil its obligations, provided
that conviction of a person for the offence does
not require proof of elements beyond those
which would be required to be proved if the
offence were defined as in this paragraph. For
example, a statute prohibiting the bribery of
Thomashausen
agents generally which does not specifically
address bribery of a foreign public official, and
a statute specifically limited to this case, could
both comply with this Article. Similarly, a
statute which defined the offence in terms of
payments “to induce a breach of the official’s
duty” could meet the standard provided that it
was understood that every public official had a
duty to exercise judgement or discretion impar-
tially and this was an “autonomous” definition
not requiring proof of the law of the particular
official’s country.
It is an offence within the meaning of para-
graph 1 to bribe to obtain or retain business or
other improper advantage whether or not the
company concerned was the best qualified bid-
der or was otherwise a company which could
properly have been awarded the business.
“Other improper advantage” refers to some-
thing to which the company concerned was not
clearly entitled, for example, an operating per-
mit for a factory which fails to meet the statuto-
ry requirements.
The conduct described in paragraph 1 is an
offence whether the offer or promise is made or
the pecuniary or other advantage is given on
that person’s own behalf or on behalf of any
other natural person or legal entity.
It is also an offence irrespective of, inter alia,
the value of the advantage, its results, percep-
tions of local custom, the tolerance of such pay-
ments by local authorities, or the alleged neces-
sity of the payment in order to obtain or retain
business or other improper advantage.
It is not an offence, however, if the advantage
was permitted or required by the written law or
regulation of the foreign public official’s coun-
try, including case law.
Small “facilitation” payments do not consti-
tute payments made “to obtain or retain busi-
ness or other improper advantage” within the
meaning of paragraph 1 and, accordingly, are
also not an offence. Such payments, which, in
some countries, are made to induce public offi-
cials to perform their functions, such as issuing
licenses or permits, are generally illegal in the
foreign country concerned. Other countries can
and should address this corrosive phenomenon
by such means as support for programmes of
good governance. However, criminalisation by
other countries does not seem a practical or
effective complementary action.
Under the legal system of some countries, an
54
advantage promised or given to any person, in
anticipation of his or her becoming a foreign
public official, falls within the scope of the
offences described in Article 1, paragraph 1 or
2. Under the legal system of many countries, it
is considered technically distinct from the
offences covered by the present Convention.
However, there is a commonly shared concern
and intent to address this phenomenon through
further work.
Re paragraph 2:
The offences set out in paragraph 2 are under-
stood in terms of their normal content in nation-
al legal systems. Accordingly, if authorisation,
incitement, or one of the other listed acts,
which does not lead to further action, is not
itself punishable under a Party’s legal system,
then the Party would not be required to make it
punishable with respect to bribery of a foreign
public official.
Re paragraph 4:
“Public function” includes any activity in the
public interest, delegated by a foreign country,
such as the performance of a task delegated by
it in connection with public procurement.
13. A “public agency” is an entity constituted
under public law to carry out specific tasks in
the public interest.
A “public enterprise” is any enterprise,
regardless of its legal form, over which a gov-
ernment, or governments, may, directly or indi-
rectly, exercise a dominant influence. This is
deemed to be the case, inter alia, when the gov-
ernment or governments hold the majority of
the enterprise’s subscribed capital, control the
majority of votes attaching to shares issued by
the enterprise or can appoint a majority of the
members of the enterprise’s administrative or
managerial body or supervisory board.
An official of a public enterprise shall be
deemed to perform a public function unless the
enterprise operates on a normal commercial
basis in the relevant market, i.e., on a basis
which is substantially equivalent to that of a
private enterprise, without preferential subsi-
dies or other privileges.
In special circumstances, public authority
may in fact be held by persons (e.g., political
party officials in single party states) not formal-
ly designated as public officials. Such persons,
through their de facto performance of a public

function, may, under the legal principles of
some countries, be considered to be foreign
public officials.
“Public international organisation” includes
any international organisation formed by states,
governments, or other public international
organisations, whatever the form of organisation
and scope of competence, including, for exam-
ple, a regional economic integration organisa-
tion such as the European Communities.
“Foreign country” is not limited to states, but
includes any organised foreign area or entity,
such as an autonomous territory or a separate
customs territory.
One case of bribery which has been contem-
plated under the definition in paragraph 4.c is
where an executive of a company gives a bribe
to a senior official of a government, in order
that this official use his office – though acting
outside his competence – to make another offi-
cial award a contract to that company.
Article 2. Responsibility of Legal Persons
In the event that, under the legal system of a
Party, criminal responsibility is not applicable
to legal persons, that Party shall not be required
to establish such criminal responsibility.
Article 3. Sanctions
Re paragraph 3:
The “proceeds” of bribery are the profits or
other benefits derived by the briber from the
transaction or other improper advantage
obtained or retained through bribery.
The term “confiscation” includes forfeiture
where applicable and means the permanent
deprivation of property by order of a court or
other competent authority. This paragraph is
without prejudice to rights of victims.
Paragraph 3 does not preclude setting appro-
priate limits to monetary sanctions.
Re paragraph 4:
Among the civil or administrative sanctions,
other than non-criminal fines, which might be
imposed upon legal persons for an act of
bribery of a foreign public official are: exclu-
sion from entitlement to public benefits or aid;
temporary or permanent disqualification from
participation in public procurement or from the
practice of other commercial activities; placing
under judicial supervision; and a judicial wind-
ing-up order.
55
Thomashausen
Article 4. Jurisdiction
Re paragraph 1:
The territorial basis for jurisdiction should be
interpreted broadly so that an extensive physi-
cal connection to the bribery act is not required.
Re paragraph 2:
Nationality jurisdiction is to be established
according to the general principles and condi-
tions in the legal system of each Party. These
principles deal with such matters as dual crimi-
nality. However, the requirement of dual crimi-
nality should be deemed to be met if the act is
unlawful where it occurred, even if under a dif-
ferent criminal statute. For countries which
apply nationality jurisdiction only to certain
types of offences, the reference to “principles”
includes the principles upon which such selec-
tion is based.
Article 5. Enforcement
Article 5 recognises the fundamental nature of
national regimes of prosecutorial discretion. It
recognises as well that, in order to protect the
independence of prosecution, such discretion is
to be exercised on the basis of professional
motives and is not to be subject to improper
influence by concerns of a political nature.
Article 5 is complemented by paragraph 6 of
the Annex to the 1997 OECD Revised
Recommendation on Combating Bribery in
International Business Transactions,
C(97)123/FINAL (hereinafter, “1997 OECD
Recommendation”), which recommends, inter
alia, that complaints of bribery of foreign pub-
lic officials should be seriously investigated by
competent authorities and that adequate
resources should be provided by national gov-
ernments to permit effective prosecution of
such bribery. Parties will have accepted this
Recommendation, including its monitoring and
follow-up arrangements.
Article 7. Money Laundering
In Article 7, “bribery of its own public official”
is intended broadly, so that bribery of a foreign
public official is to be made a predicate offence
for money laundering legislation on the same
terms, when a Party has made either active or
passive bribery of its own public official such
an offence. When a Party has made only pas-
sive bribery of its own public officials a predi-
cate offence for money laundering purposes,
Thomashausen
this article requires that the laundering of the
bribe payment be subject to money laundering
legislation.
Article 8. Accounting
Article 8 is related to section V of the 1997
OECD Recommendation, which all Parties will
have accepted and which is subject to follow-
up in the OECD Working Group on Bribery in
International Business Transactions. This para-
graph contains a series of recommendations
concerning accounting requirements, indepen-
dent external audit and internal company con-
trols the implementation of which will be
important to the overall effectiveness of the
fight against bribery in international business.
However, one immediate consequence of the
implementation of this Convention by the
Parties will be that companies which are
required to issue financial statements disclosing
their material contingent liabilities will need to
take into account the full potential liabilities
under this Convention, in particular its Articles
3 and 8, as well as other losses which might
flow from conviction of the company or its
agents for bribery. This also has implications
for the execution of professional responsibili-
ties of auditors regarding indications of bribery
of foreign public officials. In addition, the
accounting offences referred to in Article 8 will
generally occur in the company’s home coun-
try, when the bribery offence itself may have
been committed in another country, and this
can fill gaps in the effective reach of the
Convention.
Article 9. Mutual Legal Assistance
Parties will have also accepted, through para-
graph 8 of the Agreed Common Elements
annexed to the 1997 OECD Recommendation,
to explore and undertake means to improve the
efficiency of mutual legal assistance.
Re paragraph 1:
Within the framework of paragraph 1 of Article
9, Parties should, upon request, facilitate or
encourage the presence or availability of per-
sons, including persons in custody, who con-
sent to assist in investigations or participate in
proceedings. Parties should take measures to be
able, in appropriate cases, to transfer temporari-
ly such a person in custody to a Party request-
ing it and to credit time in custody in the
56
requesting Party to the transferred person’s sen-
tence in the requested Party. The Parties wish-
ing to use this mechanism should also take
measures to be able, as a requesting Party, to
keep a transferred person in custody and return
this person without necessity of extradition pro-
ceedings.
Re paragraph 2:
Paragraph 2 addresses the issue of identity of
norms in the concept of dual criminality.
Parties with statutes as diverse as a statute pro-
hibiting the bribery of agents generally and a
statute directed specifically at bribery of for-
eign public officials should be able to cooperate
fully regarding cases whose facts fall within the
scope of the offences described in this
Convention.
Article 10. Extradition
Re paragraph 2:
A Party may consider this Convention to be a
legal basis for extradition if, for one or more
categories of cases falling within this
Convention, it requires an extradition treaty.
For example, a country may consider it a basis
for extradition of its nationals if it requires an
extradition treaty for that category but does not
require one for extradition of non-nationals.
Article 12. Monitoring and Follow-Up
The current terms of reference of the OECD
Working Group on Bribery which are relevant
to monitoring and follow-up are set out in
Section VIII of the 1997 OECD Recommenda-
tion. They provide for:
i) receipt of notifications and other informa-
tion submitted to it by the [participating]
countries;
ii) regular reviews of steps taken by [partic-
ipating] countries to implement the
Recommendation and to make proposals, as
appropriate, to assist [participating] coun-
tries in its implementation; these reviews
will be based on the following complemen-
tary systems:
– a system of self evaluation, where [par-
ticipating] countries’ responses on the
basis of a questionnaire will provide a
basis for assessing the implementation of
the Recommendation;
– a system of mutual evaluation, where
each [participating] country will be exam-

ined in turn by the Working Group on
Bribery, on the basis of a report which
will provide an objective assessment of
the progress of the [participating] country
in implementing the Recommendation.
iii) examination of specific issues relating to
bribery in international business transac-
tions;
...
v) provision of regular information to the
public on its work and activities and on
implementation of the Recommendation.
The costs of monitoring and follow-up will, for
OECD Members, be handled through the nor-
mal OECD budget process. For non-members
of the OECD, the current rules create an equiv-
alent system of cost sharing, which is described
in the Resolution of the Council Concerning
Fees for Regular Observer Countries and Non-
Member Full Participants in OECD Subsidiary
Bodies, C(96)223/FINAL.
The follow-up of any aspect of the
Convention which is not also a follow-up of the
1997 OECD Recommendation or any other
instrument accepted by all the participants in
the OECD Working Group on Bribery will be
carried out by the Parties to the Convention
and, as appropriate, the participants party to
another, corresponding instrument.
Article 13. Signature and Accession
The Convention will be open to non-members
which become full participants in the OECD
Working Group on Bribery in International
Business Transactions. Full participation by
non-members in this Working Group is encour-
aged and arranged under simple procedures.
Accordingly, the requirement of full participa-
tion in the Working Group, which follows from
the relationship of the Convention to other
aspects of the fight against bribery in interna-
tional business, should not be seen as an obsta-
cle by countries wishing to participate in that
fight. The Council of the OECD has appealed
to non-members to adhere to the 1997 OECD
Recommendation and to participate in any
institutional follow-up or implementation
mechanism, i.e., in the Working Group. The
current procedures regarding full participation
by non-members in the Working Group may be
found in the Resolution of the Council concern-
ing the Participation of Non-Member
Economies in the Work of Subsidiary Bodies of
57
Thomashausen
the Organisation, C(96)64/REV1/FINAL. In
addition to accepting the Revised Recommend-
ation of the Council on Combating Bribery, a
full participant also accepts the Recommend-
ation on the Tax Deductibility of Bribes of
Foreign Public Officials, adopted on 11 April
1996, C(96)27/FINAL.
Steps Taken and Planned Future Actions by
each Participating Country to Ratify and
Implement the Convention on Combating
Bribery of Foreign Public Officials in
International Business Transactions
(Source: http://www.oecd.org/daf/
nocorruption/annex2.htm)
The following countries have deposited their
instruments of ratification/acceptance of the
Convention with the Secretary-General of the
OECD:
• Australia (18 October 1999)
• Austria (20 May 1999)
• Belgium (27 July 1999)
• Bulgaria (22 December 1998)
• Canada (17 December 1998)
• Germany (10 November 1998)
• Greece (5 February 1999)
• Finland (10 December 1998)
• Hungary (4 December 1998)
• Iceland (17 August 1998)
• Japan (13 October 1998)
• Korea (4 January 1999)
• Mexico (27 May 1999)
• Norway (18 December 1998)
• Slovakia (24 September 1999)
• Sweden (7 June 1999)
• United Kingdom (14 December 1998)
• United States (8 December 1998)
Argentina
The text of the Convention in Spanish has been
finalised. Ministerial consultations are under
way on the amendments to the Penal Code. The
draft bills to ratify and implement the Conven-
tion are expected to be sent to Parliament in
September 1999.
Australia
Legislation to implement the Convention has
been passed by the Australian Parliament and
received Royal Assent on 17 June 1999. The
legislation will come into effect on or before 17
December 1999.
Thomashausen
Austria
The legislation implementing the Convention
has been in force in Austria since 1 October
1998. The First Chamber of Parliament passed
the bill for ratification on 24 March 1999. The
ratification process was finalised and the instru-
ment of ratification deposited with the OECD
Secretariat on 24 May 1999.
Belgium
Ratification and implementation of the Con-
vention involve two different steps. The ratifi-
cation bill was adopted by Parliament on 22
April and it received royal sanction on 9 June
1999. The instrument of ratification shall soon
be deposited with the OECD Secretariat. With
respect to revision of penal law to comply with
the obligations under the Convention, the leg-
islative proposal was passed by Parliament at
the beginning of February 1999, was published
on 23 March and entered into force on 3 April.
Brazil
The Brazilian government has adopted a two
track approach concerning implementation and
ratification of the Chamber of Deputies. The
text of the Convention for ratification is also
under examination by the Chamber of
Deputies. Once approved by the Chamber, both
texts shall go to the Senate and to the President
for signature. It is hoped that the procedures for
implementation and ratification will be com-
pleted by the end of 1999 or early 2000. At
domestic level, bribery is a predicate offence of
money laundering.
Bulgaria
Bulgaria ratified the Convention on 3 June
1998 and deposited its instrument of ratification
on 22 December 1998. A Law on Amendment
to the Penal Code was passed by Parliament on
15 January 1999 and came into force on 29
January 1999. An explanation of the term of
“foreign public official”, in line with the terms
of the Convention, has been incorporated into
Art. 93 of the Penal Code and a new paragraph
2 to Article 304 of the Code has been inserted.
The text of the Convention was published in the
official state Gazette on 6 July 1999 and is now
considered part of the domestic legislation.
Canada
The new legislation was adopted by the Senate
58
on 3 December 1998 and by the House on 7
December 1999 and received Royal Assent on
10 December 1998. The Convention was rati-
fied on 17 December 1998. The law came into
force at the same time as the Convention on 14
February 1999.
Chile
The draft law for ratification and implementa-
tion of the Convention was presented to the
Chamber of Deputies on 5 January 1999 in
order to inform the commission for external
relations. It is expected that the bill will be
approved by Parliament in the last quarter of
1999, before the Presidential elections.
Czech Republic
The draft amendment to the Criminal Code was
adopted by Parliament and came into force on 1
July 1999. Regarding ratification, the draft law
is being discussed by Parliament and is expect-
ed to be approved in the Fall 1999.
Denmark
Denmark has prepared draft legislation on both
ratification and implementation of the
Convention. The Government submitted this to
Parliament in Spring 1999. The draft legislation
will be resubmitted to Parliament after the
Summer recess. The bill is expected to be
adopted and to come into force in the Fall 1999.
The draft legislation is now publicly available,
including on the Internet.
Finland
The legislation for ratification and implement-
ing legislation were approved by Parliament on
9 October 1998 and Finland deposited its
instrument of ratification on 10 December
1998. The amended Penal Code entered into
force on 1 January 1999. The Convention
entered into force internally on 15 February
1999.
France
The Council of Ministers (Conseil des
Ministres) has approved the drafts on ratifica-
tion and implementing legislation, after consid-
eration by the State Council (Conseil d’Etat),
and submitted them to Parliament. The ratifica-
tion law was adopted on 25 May 1999. The
implementing legislation will be resubmitted to
Parliament after the Summer recess. The ratifi-

cation process is expected to be completed by
the end of 1999.
Germany
Germany ratified the Convention on 10
November 1998. The implementing legislation
contained in the Act on Combating
International Bribery of 10 September 1998
entered into force together with the Convention
on 15 February 1999.
Greece
The Convention was ratified by Parliament on
5 November 1998. The implementing legisla-
tion was passed by Parliament the same day.
Greece deposited its instrument of ratification
on 5 February 1999.
Hungary
The texts of ratification of the Convention and
implementing legislation (the Amendment of
the Criminal Code) were submitted to
Parliament in May 1998. The texts for ratifica-
tion were approved on 29 September 1998 and
Hungary deposited its instrument of ratification
on 4 December 1998. The Amendment of the
Criminal Code was passed in December 1998
and came into force on 1 March 1999.
Iceland
The Icelandic government deposited its instru-
ment of ratification on 17 August 1998 and the
implementing legislation was passed by
Parliament on 22 December 1998.
Ireland
The government has approved the drafting of
legislation to enable ratification of the OECD
Convention on Bribery. The current law, in
large measure, meets the requirements of the
Convention. There are, however, one or two
areas where additional legislation has been con-
sidered necessary and these issues are being
addressed in the legislative proposals. In the
meantime, copies of the Convention were laid
before the Dail in May 1999. It is anticipated
that the Bill, to be known as the Prevention of
Corruption Bill, will be published in late 1999.
Italy
On 24 March 1999 the Italian Chamber of
Deputies approved the bill for the ratification
and enforcement of the OECD Convention,
59
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together with various EU instruments against
fraud and corruption. The Chamber has amend-
ed the bill reinforcing the framework for
imposing non-criminal sanctions against legal
persons under Art. 3.2 of the Convention, a
new feature in the Italian legal system. The
government has been delegated to introduce
these sanctions – including fines up to Euro 1.5
million – within six months from the final
approval of the bill. The bill is currently being
examined by the Senate, which is expected to
pass it as soon as possible.
Japan
On 10 April 1998, the government of Japan for-
mally submitted the Convention on Combating
Bribery of Foreign Public Officials in Interna-
tional Business Transactions, along with its
implementing legislation (amendments to the
Unfair Competition Prevention Law) to the
National Diet. The National Diet approved the
conclusion of the Convention on 22 May 1998.
The implementing legislation was adopted on
18 September 1998. The instrument of accep-
tance was deposited on 13 October 1998.
Korea
The Korean government formally submitted the
bill to ratify the Convention along with its
implementing legislation to the National
Assembly in October 1998. Both bills were
approved by the National Assembly on 17
December 1998. Korea deposited its instrument
of ratification on 4 January 1999. Korea’s
implementing legislation – the Act on Prevent-
ing Bribery of Foreign Public Officials in
International Business Transactions – went into
effect on 15 February 1999, at the time of the
entry into force of the OECD Convention.
Luxembourg
The draft bill to ratify and implement the
Convention will be submitted in October 1999
to the Conseil d’Etat. It is expected that the leg-
islative procedure will be completed end 1999
or early 2000.
Mexico
The Convention was approved by the Mexican
Senate as an international treaty on 22 April
1999; on 12 May, the promulgation decree was
published in the Official Gazette of the
Federation (DOF). The implementing legisla-
Thomashausen
tion was approved by the two Chambers in
Congress at the end of April, as part of a com-
prehensive package of reforms to the Criminal
code in Mexico. The respective decree was pro-
mulgated in the DOF on 17 May 1999. The
instrument of ratification was deposited with
the OECD Secretariat on 27 May 1999.
Netherlands
Bills to ratify and implement the Convention
were sent to Parliament in April 1999. Three
EU treaties were submitted at the same time.
The Convention needs to be ratified by the
Kingdom of the Netherlands which includes the
Netherlands Antilles and Aruba. Both chambers
of Parliament will have to approve the bills.
New Zealand
The New Zealand government has approved the
policy to amend New Zealand law to enable it
to ratify the Convention. Drafting instructions
for the necessary legislative amendments have
been issued and drafts of the proposed legisla-
tion are currently being reviewed by officials
for introduction to Parliament in the near
future. Passage of the requisite implementing
legislation and ratification is expected by the
end of 1999.
Norway
After consultation with the relevant private and
public authorities, at the end of May 1998, the
government submitted to Parliament the bills to
ratify and implement the Convention. The
amendments to the Penal Code were passed on
27 October 1998 and came into force on 1
January 1999. The instrument of ratification
was deposited on 18 December 1998.
Poland
The Ministry of Justice has finalised a draft
implementing law. Interministerial consulta-
tions have been held since February 1999. The
draft bill will have to be submitted to the
Council of Ministers before the ratification and
implementation procedure can be finalised.
Portugal
The ratification procedure has almost been
completed, the Convention having been submit-
ted to Parliament and currently under review by
the specialised committees. The Portuguese
competent authorities within the Ministry of
60
Justice are finalising the draft legislation need-
ed to alter the criminal legislation currently in
force in order to implement the OECD
Convention. A copy of the draft legislation will
be provided to the OECD Secretariat and the
Bribery Working Group as soon as it is made
publicly available.
Slovak Republic
Slovak Parliament approved the ratification of
the Convention on February 11, 1999. The
implementing legislation (Criminal Code
amendment and Act on Banks amendment
implementing Article 9 of the Convention) is
under discussion by Parliament. The draft
amendment of the Criminal Code, which also
includes provisions implementing the Criminal
Law Convention of the Council of Europe, is
expected to enter into force in August 1999.
The draft amendment of the Banking Act is
foreseen to be approved by Parliament end
September 1999. The completion of the whole
process (ratification and implementation) is
expected to take place at the end of October
1999. The instrument of ratification should then
be deposited with the OECD.
Spain
The draft legislation for ratification, as
approved by the Council of Ministers, was sub-
mitted to Parliament in the Fall 1998. Since
then, Parliament has given permission to gov-
ernment to ratify the Convention. As to imple-
menting legislation, a draft text has been
approved by the Council of Ministers after
being reviewed by the General Law Council on
29 January 1999. The text of the implementing
legislation has been sent to Parliament. The bill
will be examined in the next Fall session.
Sweden
The bill embracing the necessary amendments
of Swedish legislation in order to be able to rat-
ify and implement the Convention was passed
by Parliament on 25 March 1999. The instru-
ment of ratification was deposited with the
OECD on 8 June 1999. The implementing leg-
islation entered into force on 1 July 1999.
Switzerland
The draft law, based on the results of consulta-
tions among cantons and other interested par-
ties, has been signed by the Minister of Justice

and was submitted to Parliament on 19 April
1999. Parliament has taken up debates on the
draft in the Summer of 1999. It is expected that
the law will be approved before the end of the
year. The Convention will be ratified as soon as
the bill enters into force.
Turkey
The draft bill to ratify the Convention has been
submitted to Parliament. The interministerial
consultations on the text to implement the
Convention have been completed. A bill is now
being drafted and should be sent to Parliament
over the Summer.
United Kingdom
The United Kingdom deposited its instrument
of ratification on 14 December 1998. Although
internal consultations have confirmed that the
scope of existing laws allows the United
Kingdom to meet the requirements of the
Convention, the UK is currently considering
the formulation of a new public statute on cor-
ruption. A public discussion document on pro-
posals for new legislation on corruption is
expected to be published before the end of the
year.
Steps are being taken to bring the Channel
Isles and the Isle of Man within the scope of the
Convention. Whilst these territories have indi-
cated their willingness to do this, they need to
61
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enact new legislation to ensure their domestic
laws match the provisions of the Convention.
Also, the process to bring UK’s overseas ter-
ritories under the scope of the Convention is
beginning. This will involve a bilateral consul-
tative process with each territory. The intention
is for these territories to adhere to the Conven-
tion via the UK’s own ratification. The territo-
ries will not adhere individually.
In relation to the overseas territories, a White
Paper entitled Partnership for Progress was
published on 17 March 1999. One element of
this refers to the requirement for the overseas
territories to match the best international stan-
dards in financial regulations and stipulates
that, by the end of 1999, they will be required
to meet, in full, international standards on
money laundering, transparency and coopera-
tion with law enforcement authorities and inde-
pendent financial regulations.
United States
On 31 July 1998 the Senate approved both the
Convention and the implementing legislation.
Congress completed action on implementing
legislation in October 1998. The implementing
legislation was signed by the President on 10
November 1998; the ratification instrument was
signed by the President on 20 November 1998.
The US deposited its instrument of ratification
with the OECD on 8 December 1998.