As a means to address corruption, OECD identified bribery as a threat and a target. Since the OECD functions as an international organisation and has limitations in terms of governance, the Convention therefore serves more as a treaty of commitment among the member and participating states of the treaty in which the OECD also claimed the function of monitoring.
Hence, the OECD cannot reinforce certain accounting measures and imposition of certain practices given that the participating nations have their respective accounting and auditing practices; however, the Convention proposes a set of accounting and auditing standards which ‘prohibit the use of accounting documents for bribing’ . The signatories express commitment in combating bribery in their respective territories through the elimination of corruption practices in their own turf, and at the same time, enforce measures that prevent their respective corporations to take part in any bribery activity.
This Convention therefore demonstrates the OECD’s long-standing role towards its members, and that is, to formulate recommendations that are strongly non-binding. The Convention provides a framework of criminalisation and at the same time, a treatise of commitment for the member states. However, when it comes to the policing of corrupt acts and instances of bribery, it should be noted that the implementation is country-based; as a monitoring body, the success of the anti-bribery measures heavily relies on the enforcement and the degree of practice.
To mention the 2009 report of Transparency International, it was noted that out of the 38 countries that ratified the Convention, four nations were identified to have actively enforced the convention, 11 had moderately enforced the treaty, while the rest, at 21 countries, either had little or no enforcement at all. This reflects a problem because although the OECD has been taking measures to address an important issue in addition to the initiatives that would strengthen participation and co-operation, the actual impact of the treaty has been minimal.
3. 0 Historical Background of the Anti-Bribery Legislation 3. 1 The Practice Order Before 1977 The OECD Convention followed after the United States’ own legislation combating bribery, the Foreign Corrupt Practices Act in 1977. Prior to 1977, anti-bribery measures were not highlighted until certain exposes that would eventually lead to the solidification of government-led anti-bribery frameworks such as the FCPA. In examining the history of anti-bribery laws, a highlight point of take-off was the Watergate scandal in the United States.
Although the Watergate is not just about bribery, what apparently enforced the actions of the President Nixon’ Committee to Re-elect the President was driven by redirected political contributions. It was also found that these funds were used to bribe foreign officials by means of “slush funds” . At that time bribery was not something governments were found to be capable of doing due to the series of laws that were supposed to prevent it from happening; in the United States, an example of such laws are those legislation concerning securities .
However, this is not to say that the government was not capable of committing bribery; in fact, in the political aspect, bribery was already seen to be prevalent in the election process even a century before the Watergate ; in the United States, state constitutions from the early 20th or even dating back to the 19th century already integrated laws meant to address bribery in elections. Bribery concerning corporations and the political platforms seemed unlikely at that time; moreover, bribery concerning officials in foreign governments were considered a critical foreign policy issue .