In the past the extent of bribery by companies from Western Europe and North America of foreign officials for contracts has been a matter of pure speculation. Little or no empirical evidence was available. But, over the last year or so that has begun to change. In that period we have seen the emergence of evidence from variety of sources that gives some hint of the sheer scale of the bribery by companies headquartered in countries in the region.
Western Europe and North America are home to the major exporting, construction and defence companies which are awarded many of the big contracts in the developing world. We know that many contracts are awarded not because of fair competition but rather the preparedness to pay large bribes. According to a World Bank estimate, the sums distributed worldwide each year as pay offs or bribes total US $ 80 billion.
During that period, we received allegations that bribes had been offered in some 353 international contracts worth about $165 billion. In deals where there were bribery allegations reported, U.S. competitors, and known outcomes, American firms lost 92 contracts worth approximately $26 billion. A large number of competitor firms from other countries have been engaged in bribery of foreign public officials.
This database, it has been revealed, is gathered by US intelligence agencies, a matter further discussed below. U.S. intelligence community found that some 60 major international contracts valued at $30 billion went to the biggest briber, according to a little reported speech by then Secretary of Commerce William Daley. This was in just 12 months.
Another revelation from the all embracing Elf Acquitaine case is that the state owned company systematically paid bribes over the past 25 years to top African politicians and officials. The Elf Acquitaine deal revealed by the top official in the company responsible for Africa, implicates senior French officials and suggests possible French government complicity in dealings that robbed the people of Africa of millions of dollars in oil revenue, whilst sending them instead to corrupt officials.
The attitude of a number of companies is starting to change. But the OECD convention only came into force recently.
The UK has ratified the OECD Convention and initially argued that the existing legislation was sufficient to implement the Convention. Critics pointed out the legalisation dates back to 1906 and was designed for the prosecution of those who bribe foreign officials and noted there has not been one single prosecution of this type. Late last year the Government admitted that British anti bribery laws were not adequate and promised to pass modern legislation.
To bring pressure for a fast resolution a Bill was presented to the House of Commons by Tony Colman, MP for Putney, in mid March. The Bribery of Foreign Public Officials Bill would implement the 1997 OECD Convention. By introducing a clear offence of bribery, it will end the situation whereby the payment of offshore bribes is deductible for tax purposes.
Two British companies admitted in January at the House of Commons international development select committee that they had made facilitation payments in developing countries. Reg Hinkley group vice President of BP Amoco said such payments had to be made sometimes to prevent delays rather than gain unfair advantage over competitors. Of the 54 companies banned from working with the World Bank due to corruption or fraud, on the 2000 blacklist some 36 are British.
Evidence continues to come from developing countries of Western bribes to officials. A recent and welcomed development has been a new willingness of developing countries to bring corruption cases against outside companies that are accused of bribing officials. In one hotly contested case more than a dozen of the well known international construction companies are involved in a trial in Lesotho, where they have been accused of paying bribes to obtain contracts in a multi billion pound dam contract. The consortium were charged with paying a pounds 1.2m bribe into a Swiss bank account controlled by a former chief executive of the Lesotho Highland Water Project. The defendants deny the charges and the focus has rested on a middleman in the deal as the facilitator of bribes.
While it may be getting more difficult to pay direct bribes there is evidence that another corrupt practice is growing that companies are using political donations to influence officials and politicians in some countries. This remains a loophole in the OECD convention which needs to be closed. To this end a group of 28 individuals from nine countries from the private sector, public institutions and civil society met at the behest of TI in Italy in October 2000. They formulated the La Pietra rules which proposed OECD should pressure member states to outlaw payments to foreign political officials and parties.
Much of the international impetus to crack down on bribery of foreign officials comes from the United States Government and is part of their claimed determination to level the playing field for American companies which are subject to the Foreign Corrupt Practices Act. This exposes them to prosecution if they bribe foreign officials. Companies, officers, and directors risk expensive and disruptive investigations, criminal and civil sanctions, and private lawsuits if they fail to take the steps.
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