International Anti-Corruption Law and the Offence of Inchoate Bribery

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International Anti-Corruption Law and Inchoate Bribery of Foreign Officials: Liability of Officials; Corporations and their Intermediaries

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International Anti-Corruption Law And Inchoate Bribery of Foreign

Officials: Liability of Officials; Corporations and their Intermediaries

Chitengi Sipho Justine is an advocate of the High Court for Zambia and an accomplished

researcher in the field of organised crimes law; in which field he is a practitioner, lecturerand currently reading for his PhD.

2010/12 Chitengi Sipho Justine (Advocate)


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In the dawning of globalisation, economic

crimes that used to be purviews for

domestic legislation have now become a

universal concern. For instance, the vice of

bribery (hereinafter referred to as the

vice) of foreign public officials

(hereinafter referred to as FPOs) in order

to obtain international business has

become an international issue. There has

since been a quickly burgeoning

internationalplethoraof cases perpetrating

and perpetuating the vice with the most

recent being the widely reported 11 March2011 U.S. cracks down on firms that pay

bribes to foreign officials. Indeed,

[F]ederal authorities are now prosecuting

businesses that try to win contracts by

making payments to officials of

government-owned businesses. Executives

of an Azusa company are among those

being tried.1

From the afore-mentioned, it wasestablished that one Nestor Moreno was

living pretty too large for a governmentofficial, director of operations for Mexico'snationalized electricity monopoly, when itwas found that he drove a $297,000 Ferrariand owned a $1.8-million yacht namedDream Seeker; purportedly acquired frombribes offered by the Azusa companyexecutives.

In response to such heinous activities,vices, the international community has

introduced stringent measures, including

1 http://articles.latimes.com/2011/mar/11/business/la-fi-

foreign-corrupt-20110311

criminalisation of the vice, as evidenced in

the proliferation of various international

and regional legal instruments. These

instruments constitute the international

anti-corruption legal regime (hereinafter

referred to as the regime) aimed at

fighting, inter alia, this vice.

This article provides a comprehensive legal

anatomy on the appellation with reference

to the regime and a critical engagement of

the relevant provisions of the following:

United Nations Convention Against

Corruption2 (hereinafter referred to as

UNCAC); Organisation for EconomicCooperation and Development:

Convention on Combating Bribery of

Foreign Public Officials in International

Business Transactions3 (hereinafter

referred to OECD Convention); African

Union Convention on Preventing and

Combating Corruption4 (hereinafter

referred to as AU Convention); and

Council of Europe: Criminal Law

Convention on Corruption5 (hereinafterreferred to as CoE Convention). The

article is categorically segmented into

three various broad parts under respective

headings as hereinafter proceeds:

When dealing with corruption as

perpetrated by international corporations

and government official at the

international scene, the following legalissues are very pertinent, inter alia, as both

prosecutors and defence counsel tend to

2 Entered into force on 10 January 20053 Entered into force on 15 February 19994 Adopted on 11 July 20035Entered into force on 1 July 2002
http://articles.latimes.com/2011/mar/11/business/la-fi-foreign-corrupt-20110311http://articles.latimes.com/2011/mar/11/business/la-fi-foreign-corrupt-20110311http://articles.latimes.com/2011/mar/11/business/la-fi-foreign-corrupt-20110311http://articles.latimes.com/2011/mar/11/business/la-fi-foreign-corrupt-20110311http://articles.latimes.com/2011/mar/11/business/la-fi-foreign-corrupt-20110311


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institute full-scale litigation relying chiefly

on spirited arguments founded thereon:

i) Criminalisation of the vice;ii) Actus reus, Preparation, Attempt

and Conspiracy;

iii)Mens rea;iv)Transnational jurisdiction;v) Intermediaries and modes of

participation;

vi)Active/passive bribery;vii)Corporate liability and sanctions;viii)Facilitation/Grease payments;ix)Official immunity; andx) Reporting in Bad Faith

It is trite that the OECD Conventionis the

most effective and rigorous instrument in

tackling the vive as it, prima facie, which

aims at combating bribery of FPOs6 in

international business transactions.

However, other Conventions are equally

important in bridging the gap and filling

the lacuna left by the OECD Convention

including, inter alia, the narrowed ambitwhich is restricted to criminalisation of

active bribery(supply side) only as

contrasted with UNCAC which is much

wider in terms of application and

criminalises both active and

passive(demand side) bribery.

Collectively, the international regime

criminalises the vice. For instance,UNCACprohibits and, as aforementioned,

criminalises the intentional conduct of any

person who actually gives a bribe to a FPO

or simply makes an offer or promise for a

6 M. Pieth, Taking stock: Making the OECD Initiative

against Corruption Work (2000), para 7

bribe7 on the one hand- inchoate bribery.

It equally outlaws the conduct of any FPO

who, when offered, accepts or

himself/herself solicits a bribe8 on the

other.

Similar provisions are explicitly or

implicitly entrenched in other

Conventions whereby State Parties

(hereinafter referred to as SPs) are

either obligated(mandatory) or

requested(non-mandatory) to ...adopt

such legislative and other measures as may

be necessary to establish as criminal

offences under [their] domestic law when

committed intentionally....9 the bribery of

FPOs. For example, the AU Convention

mandates its SPs [i]n the spirit of

international cooperation... to foster

regional, continental and international

cooperation to prevent corrupt practices in

international trade transactions.10

Furthermore, under the AU Convention

SPs undertake to: Adopt...measures...to

prevent companies [from] paying bribes to

win tenders.11 No doubt, such measures

include the deterrent effect of

criminalisation.

On the authority of these provisions and

indeed on a plethora of those in other

Conventions as hereinafter enunciated, the

conduct of companies, through their

intermediaries, in offering bribes to FPOs

including government ministers, inter

alios, is criminalised because a Minister is

7 Article 16(1)8 Article 16(2)9CoE Convention, Article 510 Article 19(2)11 Article 11(3)


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covered in the meaning of persons defined

as FPOs.12 Equally, it is a crime for a FPO

to receive or even just entertain a bribery

offer from a corporation or indeed

requesting a higher offer of kickback from

another corporation competing for

business either personally or through an

intermediary such a Deputy Director or

otherwise.

The regime does not require the bribery to

be implemented for the perpetrators to be

liable. Instead, mere preparatory acts of

preparation,13 conspiracy14 and attempt15

are themselves criminalised and stand

equivalent to the actual offence of bribery

of FPOs. Therefore, if a bribery scheme is

derailed, the offence of inchoate bribery

has already been committed because all

perpetrators would have impliedly

participated in at least one of the

preparatory acts. This is a somewhat

unusual departure from the routinecriminal law, but such is the law in a

legally justifiable bid to curb the vice

under the regime.

With the exception of only the AU

Convention which does not at all require

intention in the commission of offences,16

the regime criminalises the vice only

when committed intentionally. Therefore,

12UNCAC, Article 213 Ibid, Article 27(3)14 AU Convention, Article 4(1)(i)15 UNCAC, Article 27(2)16Cf:T.R. Snider and W. Kidane, Combating CorruptionThrough International Law in Africa: A ComparativeAnalysis in Cornell International Law Journal (2007) 40,p 722

intent to commit the offence is one of the

requisite elements of the offence.

Notwithstanding its importance, intent is,

however, not explicitly defined in the

regime; suffice to mention that the

UNCAC stipulates thus: [i]ntent...as an

element...may be inferred from objective

factual circumstances.17

Therefore, in the adjudication process,

mens reamay be deduced, by implication

and analogy, from consideration of

objective factual circumstances

surrounding each individual case and

decided on its own merit. As such, it could

be deduced in certain instances that

perpetrators intended to commit bribery

though even if their scheme got derailed

or even aborted provided they apparently

had the requisite mens rea to so commit

the offence.

As the case may be, after establishing that

there is a prima facie case against

perpetrators of an FPO bribery indictment

in light of the actus reus and mens rea

being present, the next important issue is:

which courts can try them? Initially, this

would be a very contentious issue. For

instance, prior to the establishment of the

regime, ...the applicability of a States

domestic law to offences committed

outside its jurisdiction...was an area of

ambiguity even in developed countriesthat had a heightened awareness of the

conduct of their businesses abroad.

Countries like the United Kingdom and

Canada, until recently, did not have any

17 Article 28


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clear provisions relating to cross border

corruption [even] when their nationals

were involved in the corruption of a

foreign public official18 as rightly

submitted by Carr, [I]t was very much a

question of speculation as to whether or

not their courts had jurisdiction over

corrupt acts committed abroad by their

nationals19

However, the controversy has since been

settled and the ambiguity clarified

following the creation of the regime;

particularly after the coming into force of

the OECD Conventionand UNCAC. BothConventions, inter alia, empower SPs to

establish and exercise jurisdictions over

economic crimes through any of the

following types of jurisdiction:

i) Nationality jurisdiction, which maybe either active or passive

nationality;

ii) Territorial jurisdiction, whichcould be subjective or objective

territoriality; oriii)Protective jurisdiction.

The author opines that with reference to

the offence of bribery of FPOs in

international commercial transactions, all

these types of jurisdictions are

extraterritorial and transnational in nature

because they encompass parties to the

transaction from two or more different.

18I. Carr, The United Nations Convention on Corruption:Making a Real Difference to the Quality of Life ofMillions? in Manchester Journal of International

Economic Law (2006) 3, pp 3- 44, at 919Ibid, citingR v Libman [1985] SCR 178 (footnote 20) asexample where the issue of extraterritoriality gave rise tosubstantive debates as to whether Canadian criminal lawwas sufficient to cope with corruption of foreign publicofficial by their nationals.

Carl Pacini, et al, take a similar position

when they espouse that: [T]he OECD

Convention... obligates signatory nations

to make bribery of foreign public officials

a criminal act on an extraterritorial

basis.20 Succinctly stated, this means that

since the regime is non-self-executing, SPs

are employed to adopt into their domestic

legislation the offence as created under the

regime and establish jurisdiction over it;

even when committed outside their

boundaries.

Therefore, in the exercise of jurisdiction a

SP may act as follows, inter alia,depending on given scenarios:

a) Prosecute its public officials andtheir intermediaries, subject to

applicable domestic laws on official

immunity, on the basis of active

nationality because the perpetrators

are its nationals. Furthermore, a

country may also prosecute both a

corporation and its human agents

premised on objective territorialitywhere the offence was partially

committed in its territory;

b) In consultation with othercountries with sufficient nexus

(legal connection to the case), SPs

may, in the alternative, have

concerned perpetrators extradited

to their respective countries for

prosecution on the basis of active

nationality jurisdiction,

notwithstanding that the offences

were committed abroad.

20 C. Pacini, J.A. Swingen and H. Rogers, The Role oftheOECD and EU Conventions in Combating Bribery ofForeign Public Officials in Journal of Business Ethics(2002) 37, p 385


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The later approach operates on the

international law principle of aut dedere

aut judicare which compels the custodial

State to try perpetrators itself or hand

perpetrators over to a State that is willing

to prosecute.21

The UNCAC criminalises participation in

the commission of an offence by

intermediaries in any capacity such as

accomplice, assistant, or instigator....22

The AU Convention has a similar

provision which is actually more

comprehensive and detailed stipulating

thus:

This Convention is applicable to the

following acts of corruption...(i)

participation as a principal, co-

principal, agent, instigator, accomplice

or accessory after the fact, or on any

other manner in the commission or

attempted commission of, in

collaboration or conspiracy tocommit....23

Although the AU Convention does not

explicitly provide for bribery of FPOs, by

analogy and implication of Article 4(2)

thereof,24 the same is captured. Therefore,

the above quoted provision implicitly

applies to bribery of FPOs, mutatis

mutandis, provided the SPs in question

mutually agree; and there is compliance

21 G. Werle, Principles of International Criminal (2005), p63, para 18322 Article 27(1)23 Article 4(1)(i)24 It states: This Convention shall also be applicable bymutual agreementwith respect to any other act or practiceof corruptionnot described in this Convention.

with the rigors and niceties of dual

criminality.

Depending on the matrix of a specific case,

the taxonomy of participation may vary

taking a complexion such as: corporationexecutives participating as agents25 for

their corporations; regional directors of

corporations participating as assistants26 to

the group CEOs, while directors of

operation in government departments may

participate as accomplices27 and/or aiders28

to a Minister. The same government

directors of operation may equally

participate as conspirators29 with group

CEOs of foreign corporation while group

CEOs of multi-national corporations may

also participate as instigators of their

regional directors to commit FPO

bribery.30

In the final analysis, unless otherwise, it is

seldom that any of intermediaries in FPO

bribery offences would participate as a

principal offender but simply aiders and/or

abettors31 of some kind owing to the fact

that the most appropriate principal is the

corporation itself and not the

intermediaries- though in exceptional

offences the FPO could be legally deemed

as a reciprocating/alternate/equating

principal offender.

The vice manifests itself in two forms

namely; active bribery and passive bribery.

25 AU Convention, Article 4(1)(i)26 UNCAC, Article 27(1)27Ibid.28 OECD Convention, Article 1(2)29 AU Convention, Article 4(1) (i)30

Ibid31 OECD Convention, Article 1(2)


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One of the most common impediments to

the successful prosecution of FPO Bribery

offences arises from the fact the OECD

Conventionis the chief legal instrument of

authority hereon and yet the OECD

approach thereto is such that OECD

member nations have bound themselves to

prevent bribery by multinational firms by

criminalising active bribery....32

Consequently, defence counsel is likely to

aver that FPO are not criminally liable

under International Anti-Corruption Law

since passive bribery is not outlawed, in as

far as the OECD is concerned hence a FPO

recipient of a bribe from a multinationalcorporation should be acquitted.

Solace is however, found in those

instruments that criminalise both active

and passive bribery such as the CoE

Convention.33 However, the issue remains

controversial because the CoE Convention

is a regional instrument; not binding States

outside its region of operation. The critical

question is what does the UNCACprovide hereon since it is the UN

instrument thus the true International

anti-Corruption Law?

One would think that UNCACsolves this

issue because it is a universal instrument,

binding all States of the world, and

criminalises both active and passive

bribery. Of course it criminalises both

forms of bribery; but the issue remainsunresolved because under UNCAC only

the criminalisation of active bribery is

32 C. Pacini, J.A. Swingen and H. Rogers, op cit, at 390citing G. Sacerdoti, To Bribe or Not to Bribe? in K.Elliott (ed),No longer Business As Usual (2000), pp 29- 5033 Article 5 read together with Articles 2 and 3

mandatory.34 Criminalisation of passive

bribery is non-mandatory.35

Except the AU Conventionwhich does notincorporate the concept of corporate

liability, the regime provides for liability

of legal persons. For instance, the OECD

Convention obligates SPs to legislate on

[l]iability of legal persons for the bribery

of a foreign public official.36

Consequently, corporations may be held

liable for participating, usually, as

principals in the offence37on the provisionof the CoE Convention which holds legal

persons liable only for active bribery

committed on its behalf. It obligates SPs to

[a]dopt such legislative and other

measures as may be necessary to ensure

that legal persons can be held liable for the

criminal offences of active bribery...

committed for their benefit by any natural

person....38

Equally, if another corporation competing

for business is offered chance by a FPO to

beat the bribery offer from another, such a

corporation will also be liable for active

bribery or attempted active bribery

because the offer from the FPO would

not at law amount to an offer of a bribe

but simply an invitation to treat on an

envisaged illegal activity or stimulation to

34 See Article 16 (1). See also A. Argandoa, The UnitedNations Convention Against Corruption and its Impact onInternational Companies in Journal of Business Ethics(2007) 74, pp 481- 496, at 48935 UNCAC, Article 16(2). See also A. Argandoa, op cit.36 Article 237 AU Convention, Article 4(1)(i)38 Article 18


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offer a bribe. On this point alone, the FPO

would be held liable for soliciting a bribe.

Another dimension hereto is that

corporations may also be held liable for

authorisation39 of their respective CEOscorrupt practice by implied acquiescence

contrary to Article 1(2) of the OECD

Convention. This liability is

jurisprudentially founded on the

extrapolation of the doctrines of vicarious

liability40 and alter ego. These two

doctrines, working in collusion, may also

hold the companies liable atparwith their

CEOs as collaborators.41

In any case, [L]iability of a legal person...

shall not exclude criminal proceedings

against natural persons who are

perpetrators, instigators of, or accessories

to, the criminal offences.42

Concerning the issue of sanctions, the

OECD Convention mandates SPs to

prescribe either civil or administrative

sanctions in addition to,43 and/or, criminalsanctions (subject to domestic legal

systems), or non-criminal sanctions which

may include monetary fine.44 The proviso

thereto is that whatever sanctions SPs opt

for should be effective, proportionate and

dissuasive.45 SPs are further urged to

legislate on seizure and confiscation of the

bribe itself together with its proceeds or

the monetary equivalence thereof.46

39OECD Convention, Article 1(2)40Cf: Pieth, op cit, para 4(a) (3)41 AU Convention, Article 4(1) (i)42 CoE Convention, Article 18(3)43 Article 3(4)44 Article 3(2)45 Article 3(2)46 Article 3(3)

Where the scheme is not executed

(attempted bribery) the most appropriate

penalty would be monetary sanctions in

form of a fine in addition to custodial

sentencing.

Perpetrators of the FPO bribery offence

have often erected the defence of

facilitation/grease payments which is

allowable as per the OECD Convention;

and include payments ...made to induce

public officials to perform [their] non-

discretionary routine functions such as

issuing licenses and permits.47

Technically, therefore, this defence cannot

be sustained at law where the FPOs

functions are discretionary function and

not a non-discretionary routine function.

The FPO should be liable if they had the

discretion to decide which corporation to

award business to in preference over

others hence the reason for bribery.

Furthermore, the amount involved shouldbe scrutinised. If it is unreasonably too

huge (not petty amount) to be treated as

part of the de minimisrules under which

the facilitation/grease payments fall

concept is anchored48 then the defence of

grease payment would fail with liability

being established. In any case, the issue of

facilitation/grease payments is at best

contested because other than the OECD

Convention, the rest of the regime does

not embrace it.

47 Pacini et al, op cit, p 39748 Pieth, op cit, para 4(a)(2)


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This is another ground of defence a FPO

may raise in their memorandum of

appearance. However, it is more likely

than not bound to fail because, subject to

domestic laws, the regime does not allow

FPOs official immunity to hinder the

investigation and/or prosecution of erring

FPOs.49

As enunciated in the case of D v National

Society for the Prevention of Children

Cruelty,50 the importance and associated

dangers of informants role in crime

detection has been appreciated world-

over, hence the need to protect them.

However, there are issues to do with the

reciprocating need to equally protect

innocent persons from disgruntled

whistle-blowers. With the exception of

the OECD Convention, the regime

protects informants so long as the

reporting is in good faith and on

reasonable grounds.51

Informants whomake false and malicious reports against

innocent people52 risk punishment.

Therefore, for informants to be liable for

bad-faith reporting, three elements must

be established against them namely; i)

falsity of the report; ii) malice of the

reporter; and iii) innocence of the reported

person(s).

The emphasis on reporting in good faith

hereon is hinged on the realisation that

FPOs are busy agents of their respective

49 AU Convention, Article 7(5)50 [1977] 1 All ER 58951 Article 3352 AU Convention, Article 5(7)

governments hence should not be left to

the whims and caprices of busy bodies

who could be disgruntled elements trying

to derail government programmes not

only through malicious insinuations but

also unfounded allegations resultant in bad

faith reporting; with the possibility of

ultimately disturbing development

business plans of the FPO. Nevertheless,

SPs should take all reasonable steps to

balance the scale of mere suspicion and

possibility of actual perpetration. As such,

courageous and well-meaning informants

deserve commendation because, as per

Judge Cory, [t]he position of informers...isalways precarious and their role fraught

with danger....53

From the foregoing, and indeed on a

plethora of authorities, it is clear that a

critical mass of expatiations is slowly

building up at the international level

aimed at combating the abhorrent offence

of FPO bribery in internationalcommercial transactions. Better still, it is

generally settled at international anti-

corruption law that the aforesaid offence is

criminalised even by ordinary preparatory

acts and not actual implementation

whereby capturing the wide inchoate

offences incidental thereto or indeed

consequential therefrom. This is clear

from the buttressing and/or replicated

provisions in other legal instruments nothereinbefore explored but on all-fours

therewith. For example, the Organisation

of American States Convention obligates

its SPs to punish the offering... to a

53R v Scott[1990] 3 SCR 979 at 994


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government official of another state

promise or advantage, in connection with

any economic or commercial transaction

in exchange for any act or omission in the

performance of that officials public

functions.54

Equally, the SADC Protocol55 criminalises

acts of corruption relating to an official of

a foreign State even before

execution/implementation of the plans.56

Therefore, the non-implementation of the

scheme in an attempted FPO bribery cases

is immaterial because it does not

relinquish the perpetrators liability. Onthe authority of the many provision

espoused above and many more verbatim

one, perpetrators of FPO bribery risk

being prosecuted, accordingly, by their

domestic courts or foreign courts with

established jurisdiction.

54 Article VIII55 Signed on 14 August 2001but not yet entered into force56 Article 6


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1. D v National Society for the Prevention of Children Cruelty[1977] 1 All ER 589.2. R v Libman[1985] SCR 178.3. R v Scott[1990] 3 SCR 979.1. African Union Convention on Preventing and Combating Corruption (2003), Maputo.2. Council of Europe: Criminal Law Convention on Corruption (2002), Strasbourg.3. Organization of American States: Inter-American Convention against Corruption

(1996/97), Caracas.

4. Organisation for Economic Cooperation and Development: Convention on CombatingBribery of Foreign Public Officials in International Business Transactions (1999), Basel.

5. United Nations Convention against Corruption (2005), Washington D.C.1. Southern African Development Community Protocol against Corruption (2001),

Victoria Falls.

1. A. Argandoa, The United Nations Convention Against Corruption and its Impact on

International Companies in Journal of Business Ethics (2007) vol. 74, Springer

Publishers, Amsterdam.

2. C. Pacini, J.A. Swingen and H. Rogers, The Role of the OECD and EU Conven tions inCombating Bribery of Foreign Public Officials in Journal of Business Ethics(2002) vol.37, Kluwer Academic Publishers, Amsterdam.

3. G. Sacerdoti, To Bribe or Not to Bribe? in K. Elliott (ed), No longer Business As Usual(2000) OECD, Paris.

4. G. Werle, Principles of International Criminal(2005) T.M.C. Asser Press, The Hague.5. I. Carr, The United Nations Convention on Corruption: Making a Real Difference to

the Quality of Life of Millions?In Manchester Journal of International Economic Law

(2006) Vol. 3, No. 3, London.

6. M. Pieth, Taking stock: Making the OECD Initiative against Corruption Work (2000)available and accessed on 7 October 2009 at

www.oas.org.juridica/english/pieth2000.htm7. T.R. Snider and W. Kidane, Combating Corruption through International Law in

Africa: A Comparative Analysis in Cornell International Law Journal (2007) vol. 40,

New York.

1. http://www.articles.latimes.com/2011/mar/11/business/la-fi-foreign-corrupt-201103112. http://www.oas.org.juridica/english/pieth2000.htm
http://www.oas.org.juridica/english/pieth2000.htmhttp://www.oas.org.juridica/english/pieth2000.htmhttp://www.articles.latimes.com/2011/mar/11/business/la-fi-foreign-corrupt-20110311http://www.articles.latimes.com/2011/mar/11/business/la-fi-foreign-corrupt-20110311http://www.oas.org.juridica/english/pieth2000.htmhttp://www.oas.org.juridica/english/pieth2000.htmhttp://www.oas.org.juridica/english/pieth2000.htmhttp://www.articles.latimes.com/2011/mar/11/business/la-fi-foreign-corrupt-20110311http://www.oas.org.juridica/english/pieth2000.htm

International Anti-Corruption Law and the Offence of Inchoate Bribery

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