Grey Area Questions
The international business community is in particular concerned about the problem of solicitation of bribes or facilitation payments. The problem derives from the fact that the OECD Convention only deals with the supply side of bribery, meaning when somebody is offering a bribe. The OECD Convention does not deal with the demand side of bribery, meaning when a civil servant is asking for a bribe.
The UNCAC does attempt to regulate the demand side, but there is still a grey area concerning facilitation payments that has to be taken into account by companies when operating in environments with a high risk of corruption. The UNCAC in fact allows states to mantain their legal defences, including a defence exhempting facilitation payments in foreign countries from criminal penalties. Some countries, like the UK and Germany, have national legislation criminalising facilitation payments abroad, while most notably the US permits such payments.
Other grey area issues typically relate to charities or donations, gifts, contributions to political parties and travels. Some of these issues will, in practice, be impossible to regulate by international law, while some are covered in national law.
Companies with integrity programmes include such areas in their code of conduct or integrity programmes. The general tendency is that contributions to political parties are ruled out, that there is a certain level for gifts and entertainment and that such arrangements are made transparent, and that donations or charities are only granted in situations where they cannot be interpreted as an attempt to gain undue influence.
For examples and information on codes of conduct, see the following resources:
- Global Advice Network Code of Conduct template from Integrity System
- ICC Rules of Conduct and Recommendations on Combating Extortion and Bribery
- Transparency International Business Principles
