We noted in the prior post that the OECD Convention is just a bit bashful on the question of facilitation payments. The text makes no mention of them, but the “Commentaries” provide that while some countries will prohibit them, in other countries criminalization “does not seem  practical or effective.” We asked, of the 39 signatory nations to the OECD Convention, how many have adopted the exception?
I set my outstanding research assistant at the University of Richmond School of Law, Tim Archer, on the trail. He did the hard work, and here’s what he found: approximately 30% of the signatories, or 11 of 39, have adopted the exception; the remaining 28, or roughly 70%, have not. And the breakdown is quite interesting:
Countries that have adopted the facilitating payment exception:
Australia, Austria, Canada, Greece, South Korea, New Zealand, Slovak Republic, South Africa, Spain, Switzerland, and the U.S.
Countries that have rejected the exception:
Argentina, Belgium, Brazil, Bulgaria, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Israel, Italy, Japan, Luxembourg, Mexico, Netherlands, Norway, Poland, Portugal, Russia, Slovenia, Sweden, Turkey, and the U.K.
One might have expected the former category to be occupied mainly by countries that rank poorly on the Corruption Perceptions Index and/or are doing next to nothing in enforcement, and the latter category to be the least corrupt and the most aggressive enforcers. But it doesn’t quite fall out that way; you see countries on both ends of the anti-bribery spectrum in both categories.
What, then, explains the breakdown? We don’t know, but we’re thinking about it. As always, observations from readers are most welcome.
Andy Spalding is the senior editor of the FCPA Blog. A former Fulbright Senior Research Scholar in Asia, he's Assistant Professor at the University of Richmond School of Law.