Anti-Corruption Forum Facilitation Payments Conference Ebooklet

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AMERICAS, ASIA AND PACIFIC • Inter-American Convention against Corruption (OAS Convention) - The Organization of American States imposed the first requirement on member states, requiring them to create laws criminalizing transnational bribes (Low et al., 1998). The OAS Convention does not explicitly mention facilitation payments (Shaw, 2000). The OAS Convention also has not resulted in significant action by member countries. • Asia and Pacific region • ADB-OECD Action Plan for Asia-Pacific (Action Plan) LEGAL FRAMEWORK AT THE NATIONAL LEVEL Panel III – Prosecution 56
AMERICA AND THE CARIBBEAN • In Canada - The domestic bribery laws do not provide any exception for facilitation or “grease” payments. If a payment is made or offered as consideration for the official to perform even a non-discretionary duty (eg, to expedite the performance of the duty), it is potentially subject to being caught by the applicable domestic bribery offence. • In the US - The FCPA permits “facilitation” or “grease” payments. This narrow exception applies to payments to expedite or secure the performance of “routine governmental action’s”, which are specifically defined to exclude actions involving the exercise of discretion. As such, the exception generally applies only to small payments used to expedite the processing of permits, licenses, or other routine documentation; the provision of utility, police or mail services; or the performance of other non-discretionary functions. • In Brazil, Trinidad & Tobago, Mexico - The legislation does not distinguish “facilitation payments” from other bribes AFRICA In South Africa - Facilitation payments have always been illegal in South Africa. In terms of the Prevention and Combating of Corrupt Activities Act (12/2004), it is a criminal offence to provide any form of "gratification" to an official if it is not lawfully due. The act of bribery is also regulated by this act, which defines 'corruption' as follows: "any person who directly or indirectly gives or accepts or agrees or offers to give or accept any gratification from another person with the purpose of acting personally or influencing another person to act in a manner that amounts to an illegal, dishonest, or unauthorized action or an abuse of authority, a breach of trust, or a violation of a legal duty, is guilty of an act of corruption.” In Nigeria - Domestic bribery laws have not been enforced with respect to facilitation or “grease” payments. In Kenya - Whereas there are no express provisions concerning facilitation payments, the Anti-Corruption and Economic Crimes Act provides that where a person is charged with an offence under the Act it shall be no defense that the receiving, soliciting, giving or offering of any benefit is customary in any business, undertaking, office, profession or calling. It may therefore be imputed that grease payments are not permitted. These payments may also be classified as benefits prohibited by law. 57 Panel III – Prosecution
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Facilitation Payments Conference 20
Page 3 and 4:
index Our Speakers 4 - 6 Anti-Corru
Page 5 and 6: Howard Dean Head of Investigations,
Page 7 and 8: anti-corruption forum What is the A
Page 9 and 10: 12:45 - 14:00 Lunch 14:00 - 15:30 P
Page 11 and 12: Dr. Oliver Landwehr United Nations
Page 13 and 14: Art. 15 UNCAC The Term „Facilitat
Page 15 and 16: The Unlawfulness of Facilitation Pa
Page 17 and 18: Findings in Country Reviews • Agg
Page 19 and 20: Mitigating the risk of facilitation
Page 21 and 22: More Materials • A Guide for Anti
Page 23 and 24: 23
Page 25 and 26: 1. What do CoE standards say ? n 6
Page 27 and 28: 27
Page 29 and 30: Panel II - Tackling Facilitation Pa
Page 31 and 32: Organizational Setup Corporate Cent
Page 33 and 34: Customs Interaction Excellence Proj
Page 35 and 36: Dr. Klaus Moosmayer Chief Complianc
Page 37 and 38: 37 Panel II - Tackling Facilitation
Page 39 and 40: 39
Page 41 and 42: Howard Dean Head of Investigations,
Page 43 and 44: _Significance of the sector and the
Page 45 and 46: 45
Page 47 and 48: 47 Panel III - Prosecution
Page 51 and 52: SUMMARY 1. Legal Definition of Faci
Page 53 and 54: FACILITATION PAYMENTS: THE STATE OF
Page 55: EUROPE • Council of Europe Crimin
Page 59 and 60: OECD • Convention on the Bribery
Page 61 and 62: THE FCPA THE UNITED STATES FOREIGN
Page 63 and 64: Prof. Dr. Jürgen Taschke Partner D
Page 69 and 70: Prof. Dr. Michael Kubiciel Universi
Page 71 and 72: Although neither the ratio nor the
Page 73 and 74: of transnational bribery. A state c
Page 75 and 76: Let’s start by a li-le quiz!
Page 77 and 78: CONT’D • An Iraqi hospital adm
Page 79 and 80: The Air Asia Case • In an a
Page 81 and 82: Although there are other gray
Page 83 and 84: 83
Page 86: design & Layout Pia Held pia_held@g
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