Enhancing Foreign Bribery and Money Laundering Prosecutions

Recognizing that corruption is an insidious plague that has a wide range of corrosive effects on societies,

Concerned about the grave threat of transnational corruption that undermines democratic institutions, fair economic exchange, environmental protections, human rights, equity and justice,

Reaffirming the commitment of States Parties to Article 1 of the Convention to promote and strengthen measures to prevent and combat corruption more efficiently and effectively” and “promote, facilitate and support international cooperation” in the “fight against corruption,”

Recalling that Article 5 of the Convention commits State Parties to “develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law,”

Reaffirming Article 13’s mandate that each State Party “shall take appropriate measures, within its means and in accordance with fundamental principles of its domestic law, to promote the active participation of individuals and groups outside the public sector, such as civil society, journalists, nongovernmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption,”

Emphasizing that Articles 14 and 23 commits State Parties “to deter and detect all forms of money-laundering;” and that Articles 15, 16 and 21 commit State parties to combat foreign bribery, and the role that effective whistleblower 2 laws play in enhancing detection,¹

Recognizing that Article 26 calls for each State Party to establish criminal, civil, or administrative sanctions against those who engage in corrupt activities identified in the Convention, and ensure that liability will be sufficient to “ensure that legal persons” will be “subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions,”

Acknowledging that large civil penalties have been highly effective in holding legal persons accountable, obtaining agreements to enhance compliance programs, obtaining compensation for victims, and deterring money laundering and foreign bribery,

Supporting Articles 32 and 33 of the Convention that commits States Parties to consider creating national laws to protect witnesses and other people who report concerns related to the Convention (or whistleblowers), which would include money laundering and foreign bribery, in good faith and on reasonable grounds to the competent authorities,

Acknowledging that Article 37 of the Convention requires States Parties to take “appropriate measures to encourage persons who participate or who have participated in the commission of an offence [involving corruption] … to supply information,” Emphasizing that the keys to detection of hidden crimes, such as money laundering and foreign bribery, are laws that incentivize reporting of original information (i.e. information unknown to law enforcement agencies) to responsible law enforcement agencies in accordance with empirically proven best practices,²

Recognizing the role of the UNCAC Implementation Review Mechanism to promote international cooperation in preventing the fight against corruption, help states identify specific needs for technical assistance, and facilitate the exchange of information and experiences gained in the implementation of the Convention,

Noting that the implementation of the above enumerated Articles within UNCAC are deeply connected to the implementation of other conventions developed at regional levels or within other intergovernmental organizations, including the OECD’s Anti-Bribery Convention, the Council of Europe Criminal Law Convention on Corruption, the Inter-American Convention against Corruption, the African Union Convention on Preventing and Combating Corruption, and the Arab Convention to Fight Corruption,

Acknowledging that the OECD’s country audits of the implementation of the Anti-Bribery Convention find that a framework of incentives for whistleblowers, combined with protections, provide powerful incentives for qualified whistleblowers to report corrupt activities,³

Emphasizing that the effectiveness of whistleblower incentive programs is dependent on the guarantee of protections for whistleblowers, particularly anonymity and confidentiality, and entitlement to damages from retaliation,

Acknowledging the historic success of the laws against foreign bribery that rely on awarding whistleblowers who detect corrupt activities as an essential special investigative technique necessary for enforcing the Convention in detecting and prosecuting transnational corruption, including foreign bribery, money laundering, and illegal offshore banking was based on a whistleblower program mandating the payment of awards to persons who reported original information to law enforcement,⁴

Recalling that resolutions 76/185 and 75/311 of the General Assembly and 8/12 of the Convention recognize the intersection between environmental crime and corruption and urge the State Parties to take action against environmental crime and corruption,

Recognizing that the State Parties have also adopted international conventions designed to combat corruption involving environmental crimes, wildlife trafficking, and climate change, consistent with the requirements and goals of the Convention,⁵

Acknowledging that anti-corruption laws regarding international trade in commodities can play an essential role in combatting environmental crimes and illegal conduct contributing to climate change;⁶

Recognizing the need for international cooperation between State Parties and law enforcement agencies as vital for the detection and prosecution of corrupt activities as mandated in Articles 37-39, 42, 46, 48-50, and 55-56,

Acknowledging that over the past ten years law enforcement agencies from over fifty countries have assisted in successful prosecutions under the foreign bribery laws that rely heavily upon protecting and awarding whistleblowers who detect corrupt activities as an essential special investigative technique necessary for enforcing the Convention, and that such continued cooperation if needed to combat corruption.⁷