Israel and the Fight Against Bribery in the Framework of the OECD

 

​The Offence of Bribery to a Foreign Official

Israel and the Fight Against Bribery in the Framework of the OECD


The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions is the main tool of the OECD (the Organization for Economic Co-operation and Development) in the fight against international corruption, and it is aimed at solidifying the international struggle against bribery of foreign public officials in international business transactions.
 

The Principles of the Anti-Bribery Convention

 
The aim of the Convention is to combat the bribery of foreign public officials in international business transactions. The fundamental principle of the Convention is the establishment of the offence of bribery of foreign public officials (Article 1), with an identical penal sanction to the sanction imposed for domestic bribery (Article 3). The Convention widely defines the offence of bribery and includes payment, offer or promise of a sum of money or any other advantage, whether directly or through an intermediary, to a foreign public official, whether for the benefit of the public official or for another person, to influence the public official to act, or to refrain from acting, in the performance of his, or her, duties in order to obtain or retain an advantage in international business transactions.
 
The Convention includes different provisions; including, inter alia, the requirement to impose sanctions on the briber, including deprivation of liberty, monetary sanctions, seizing and confiscation of the proceeds of bribery (Article 3); establishing jurisdiction in the country where the briber was paid; setting accounting and auditing standards that prohibit the use of techniques to mask bribery payments (Article 8); providing mutual legal assistance in foreign bribery cases, including in criminal procedures (Article 9); defining the bribery of foreign public officials as an extraditable offence in domestic legislation and in extradition agreements between member states (Article 10); establishing review mechanisms for ensuring the implementation of the Convention (Article 12).
 
The review on the implementation of the Convention, and its accompanying legal instruments (which are legally binding), is conducted by the OECD Working Group on Bribery in International Transactions. The Working Group is made up of representatives from states members to the Convention, and its role is to review the implementation of the OECD legal instruments concerning the struggle against bribery of foreign public officials in international business transactions. Israel joined the Working Group On December 2008 and the Convention on March 2009, and has been a regular participant in the discussions of the Working Group ever since. 
 
The review by the Working Group is far reaching and strict, and is performed in phases during which the Working Group examines the measures the states under review have taken in order to combat bribery of foreign public officials. 
 
  •  In Phase 1, the review includes a comprehensive assessment of the compatibility of the domestic legislation of the state under review to its obligations under the OECD legal instruments relating to the prevention of foreign bribery.  
  •  In Phase 2, the review includes a comprehensive assessment of the implementation in practice of the Convention and the OECD legal instruments in the state under review.
  •  Phase 3 of the review focuses on progress made by the states since Phase 2, on issues raised by changes in the domestic legislation or institutional framework, and on enforcement efforts and results.
  •   After completion by most member states of the first three phases of review, the Working Group has launched the fourth phase of review (Phase 4). This review includes additional aspects of the implementation of the Convention in practice, with emphasis on developments in each member state with regards to the struggle against bribery of foreign public officials since Phase 3. In this phase, Israel continues to serve as a reviewing state for South Korea and New Zealand, 
     
At the end of each Phase, the Working Group publishes a report including recommendations for the reviewed state to take further measures to enhance the struggle against corruption or for making legislative amendments in this regard.
 
The Working Group utilizes a peer review mechanism, as the teams of examiners are assembled of representatives from two member states and from the Working Group's secretariat.
 
As a member state, Israel is currently undergoing the different Phases of the review process. In this regard Israeli authorities have taken, inter alia, the following steps:
  •  Replying to comprehensive OECD questionnaires concerning bribery in international business transactions.
  • Presenting the Israeli legal framework for combating corruption and bribery and other relevant aspects.
  •  Promotion of legislative amendments aimed at accommodating Israeli law to the requirements of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
  • Multifaceted activities to implement the Convention and its accompanying legal instruments within public and private sectors.
 
On March 20, 2009, Israel successfully completed the first stage of the review process (Phase 1). In its report, issued following the completion of the review, the Working Group mentioned that as a general matter, the Israeli legal framework corresponds to the requirements of the Convention and its accompanying legal instruments. 
 
On December 11, 2009, Israel successfully completed the second stage of the review process (Phase 2). In its report, issued following the completion of the review, the Working Group noted its appreciation of the steps taken by Israel thus far, such as the issuance of the Attorney General Guidelines concerning investigation and prosecution of the foreign bribery offence; the Civil Service Commission's Circular requiring government employees under the jurisdiction of the Civil Service Commissioner to report suspected foreign bribery acts; establishing a reporting duty on Israeli diplomatic representatives abroad; and the introduction of anti-bribery clauses and declarations by Israel's export credit agency .
 
The report also contained a number of recommendations concerning the appropriate measures necessary to strengthen the battle against bribery and corruption in international transactions in Israel. These recommendation included increasing the applicable sanctions, ensuring that the Legal Assistance mechanisms are adequately resourced, Imposing an obligation on the Military Censor to forward any relevant information to law enforcement authorities where that information has been suppressed by the Censor, clarifying that tax laws absolutely prohibit deduction of bribery payment as deductible expense and raising awareness of the convention and the offence.
 

On June 11, 2015, the Working Group adopted Israel's Phase 3 Report, after completion of the third stage of the review process. 

 The review is based on detailed questionnaires as well as legislation, case law and other materials provided by Israel. The review is also based on information obtained by the evaluation team during an on-site visit to Israel in February 2015, during which the team met with representatives from Israel's public and private sectors, judiciary, civil society and media.
The Report notes positive developments, for example regarding Israel's foreign bribery offense and sanctioning regime. The Report also raises concerns, notably regarding the insufficient level of foreign bribery enforcement in Israel.   

 The Phase 3 Report also lists 27 recommendations and 11 follow up issues for Israel.  In June 2017, Israel presented an oral report regarding progress on implementation of these recommendations, In June 2017, Israel will submit a written report to the Working Group on steps taken to implement all the new recommendations and follow up issues.

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