9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

International Efforts to Combat Corruption

Prof. Dr. Mark Pieth

Law Faculty, Basel University,Maiengasse 51, CH-4056 Basel, Switzerland: Email:

pieth@ubaclu.unibas.ch

Contents

I. Introduction 3
1. The perspective of the industrialised world 3
2. The perspective of the developing world 5
II. Overview over new instruments 6
1. OECD 6
2. European Union 8
3. Council of Europe 9
4. Other initiatives 11
a. OAS 11
b. UN 12
III. Specific Issues relating to the criminalisation of transnational bribery 12
1. Methodology 12
2. Definition of public official 13
3. Definition of the offence 14
4. Responsibility of legal persons and sanctions against companies 14
5. Jurisdiction 15
6. Enforcement 16
7. Money Laundering and accounting offences 16
IV. Conclusion 17
 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

I. Introduction

For centuries corruption has been accepted as a seemingly inevitable fact of

life. Even in recent times people living and working under conditions of en-
demic corruption have tended to adopt a fatalistic view. At the same time
there has never been any serious doubt that corruption is one of the major im-
pediments to development, that it endangers the rule of law, human rights and
democracy as well as economic prospects of a society. Therefore the dramatic
change of attitude world-wide over the last ten and especially five years needs
an explanation. In the context of this paper I can, of course, merely sketch a
few ideas.

In my view, a combination of very different factors have made it possible to

move the issue to the top of the international agenda. One has to distinguish
between essential economic and political conditions and catalysts allowing a
world-wide movement against corruption to develop in just a few years.

1. The perspective of the industrialised world

In the North the US had in the aftermath of the Watergate and the Lockheed
scandals given itself a strict legislation to combat illicit payments in interna-
tional business transactions.1 At that time neither its major trading partners in
the West, nor the countries of the East and of the South were ready to adopt a
similar approach; efforts to draft a corresponding convention in the UN failed
in 1979. The other industrialised states questioned the rational of the unilat-
eral move by the US. It was either perceived as an act of expansive moralism

The author would like to thank his colleague Mrs. Claire Daams, researcher at the Law Faculty of
Basle University, for her collaboration on this paper.

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

or they suspected a hidden hegemonial trade-agenda. US business in turn de-

manded internationalisation of the FCPA since it saw itself in a comparative
disadvantage on world markets.
The end of the Cold War offered the chance for change from the perspective
of the North; with the opening of the East, new markets became accessible.
With the new technological revolution and the rapidly growing globalisation a
political swing around was possible: now corrupt officials abroad and the
payment of bribes by competitors where considered impediments to market
access. At the same time it became evident to the industrialised nations that
they were not making best use of their development co-operation in some
highly corrupt environments. Finally, the eruption of domestic corruption
scandals in virtually all industrialised states helped to sway the public opinion
in favour of combating corruption; The new awareness was additionally sup-
ported by a change of paradigm in criminal policy; since the late 1980s the
focus was placed increasingly on economic and organised crime. Grand cor-
ruption is a variation of macrocrime, sometimes addressed as fraud. With
other forms of economic crime it has in common that it leads to massive
losses to taxpayers. The rapprochement of corruption to economic and organ-
ised crime allowed to make use of newly developed methods of international
law in creating common standards: The Financial Action Task Force (FATF)2
had only just demonstrated that it was possible to develop a standard by
means of soft law and implement it across the world in less then ten years.

Talking about catalysts: In the industrialised world a combination of harsh

political pressure by the US and a gradual realisation by major trading part-
ners that collective action against corruption was in their common- and in fact

1
Foreign Corrupt Practices Act 1977, as amended in 1988.
2
Financial Action Task Force (FATF) on Money Laundering, The 40 recommendations of the Finan

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

in a world-wide- interest, made it possible to adopt two major instruments

against corruption in the OECD context.
The process took many years to gather momentum 3, but since 1994 events
have followed in a rapid sequence; the 1997 Recommendation contains the
general programme of preventive and repressive measures, the 1997 Conven-
tion focuses on criminalisation of active bribery of foreign public officials.
This process has had direct catalystic effects on regional initiatives with a dif-
ferent mandate and function.

In 1994 the Council of Europe initiated very thorough analytical legal work
on a series of instruments detailed in the Programme of Action of 1996 and
implemented in its Guiding Principles of 1997 and the Criminal Law and
Civil Law conventions of 1998 respectively 1999.4

Equally relevant is the work done in the European Union, even if the context
is again quite different. Especially the First Protocol of 1996, the Second
Protocol of 1997 and the Convention of 19975 need to be mentioned.

cial Action Task Force on Money Laundering, 1990, revised June 28, 1996.
3
Starting from an initiative in 1989 cf. the Recommendation of the Council on Bribery in International
Business Transactions, adopted on May 27, 1994 (C(94) 75 FINAL), the Revised Recommendation,
adopted by the OECD Council on May 23, 1997 and the Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions, adopted by the Negotiating Confer
ence on November 21, 1997.
4
The Programme of Action against Corruption (PAC, 1996) was prepared by the Multidisciplinary
Group on Corruption (GMC) in 1995 and adopted by the Committee of Ministers at the end of 1996.
Resolution (97) 24 on the 20 Guiding principles for the fight against Corruption were adopted by
the Committee of Ministers at its 101st session at Ministerial level on November 6, 1997. The Crimi-
nal Law Convention on Corruption (CM (98) 181) was adopted by the Committee of Ministers in its
103rd session on November 5, 1998. This convention is open for signature from January 27, 1999. The
Civil Law Convention on Corruption was adopted by the Committee of Ministers on September 9,
1999. This convention will be open for signature from November 4, 1999.
5
The First Protocol to the Treaty on the Protection of Financial Interests of the Communities, was
adopted by the Council on September 27, 1996 (96/C 313/01). The Second Protocol was
adopted by the Council on June 19, 1997 and the Convention on the fight against corruption involving
officials of the European Communities or officials of Member States of the European Union, was
adopted by the Council on May 26, 1997 (97/C 95/01).

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

2. The perspective of the developing world

For the public discourse in the South, corruption was certainly not a new
topic. However, the readiness of industrialised nations to take action on the
supply side encouraged new approaches in the South. NGOs and members
of the civil society in general became even more outspoken, sometimes at
high risk to their personal security. It was therefore crucial that a globally ac-
tive NGO, like Transparency International (TI) was created just as the world-
wide change was about to take off: it supported not only activities by critical
opposition, but also encouraged governments, international organisations like
UNDP and especially the World Bank, the IMF as well as regional Develop-
ment Banks to use their potential in an unambiguous anti-corruption policy.

The new policy of the Multilateral Money Lenders will have crucial impact
on the situation in countries in development. The real challenge, however, is
to bring action on the so called supply and the demand side of corruption
together and again here both the UN and regional organisations covering ar-
eas in the North and the South (e.g. the Organisation of American States
(OAS)) have an eminent role to play.

This paper concentrates on the contribution of international organisations in

developing common legal standards. More specifically the new criminal law
conventions of the OECD, CoE, the EU and the OAS will be discussed in
greater detail, first by describing the particular approach of each organisation
(II) and second by raising some key issues of criminal law in a horizontal
analysis (III).

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

II. Overview over new Instruments

Starting my overview with the earliest of the three initiatives, with the OECD-
instruments, I will concentrate on the fundamentals in this first round.

1. OECD

a. The OECD (as the economic organisation of developed states representing

over 70% of exports and 90 % of direct foreign investments world-wide) has
a narrow remit and only limited ambitions in this area: The approach is basi-
cally supply-side oriented intending to reduce the influx of corrupt pay-
ments into relevant markets by sanctioning the active bribers and their ac-
complices as well as by providing for a preventive framework. This approach
depends upon other action being taken from the demand-side and it is in a
sense unilateral, even if collectively unilateral: The concepts apply also to
the bribery of officials of non-participant countries. On the other hand the
OECD takes care not to intrude into other countries sovereignty, so the be-
haviour of foreign officials itself is not a topic for the OECD.

The OECD concept is clearly influenced by the fair trade-approach taken by

the US since 1977. It does, however, not merely replicate the FCPA this has
become evident during the US-ratification procedure of the OECD criminali-
sation Convention which did lead to significant adaptations of the FCPA:
More essential, however, is the fact that the OECD-instruments create an in-
ternational process, with follow-up mechanisms and outreach capability, a
dimension reaching far beyond the traditional one nation-unilateralism.

Consistent with the principle rationale of creating a level playing field of

commerce, it, attempts a homogenous, autonomous definition of the public
official. Having said this, it becomes evident that the OECD so far is limiting

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

its scope to active corruption of foreign public officials. Private to private

corruption is under examination for a further stage of its work, but it is per-
ceived as quite a different problem. Finally, the concepts concern themselves
only with grand or at least straightforward corruption (in the sense of fur-
thering illegal behaviour), excluding mere facilitation or grease payments.
The OECD limits itself to economically relevant corruption.

b. Institutionally the OECD-Initiative is based on two main documents: The

Revised Recommendation of May 1997.6 On the one hand the mother-
document containing a list of agreed preventive and repressive measures, both
criminal and non-criminal in nature. On the other hand the Convention of
November 19977 picks up the criminalisation issue and puts it into a legally
binding form.

The entire system depends on a strict political framework, a timeschedule, a

systematic and serious evaluation both of implementation-legislation and
practice as well as an outreach and networking procedure, integrating further
States into the no-corruption pact.

Turning briefly to the approaches by the EU and the Council of Europe, in

order to highlight the main differences, I will start with the efforts of the EU:

2. European Union

a. One has to consider, that the Community itself has no powers to di-
rectly enact criminal law. According to the Maastricht Treaty it is developing
its co-ordinated legislation in justice and home affairs in a system of inter-
national treaties, which, however, have to be adopted and then ratified and

6
See supra note 3 on the Revised Recommendation.

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

implemented nationally (third pillar). The issue of corruption was first ap-
proached by the EU so to say through the backdoor in the context of the
Protection of the EU budget on the one hand and the fight against organised
crime on the other hand.

b. The Treaty on the Protection of Financial Interests of the Community

of 19958 is the basis for a First Protocol of 19969 focussing for the first time
in Europe on criminalisation of transnational bribery. It is, however, limited to
the bribery endangering the communitys economic interests and to the geo-
graphical area of the Union.

c. This Protocol has in turn been used as a stepping stone in order to drop
the requirement of endangering the communitys interests in the 1997 Con-
vention on Bribery.10 These instruments are currently being ratified and im-
plemented.

d. Meanwhile the Commission is developing supranational law against

corruption in the context of the actual community law (First pillar). You will
in its program find topics addressed already in the Foreign Corrupt Practices
Act and in the OECD context, like the tax treatment of bribes and rules on
accounting and auditing. Most significant, however, are new moves in the
European Union to regulate private to private corruption in a commercial
context with its Joint Action of December 22, 1998.11 It defines commer-
cial bribery, requires as a minimum effective, proportionate and dissuasive
criminal penalties. It also deals with the liability of legal persons and asks for
criminal or administrative sanctions. The rules of jurisdiction are in line with

7
See supra note 3 on the convention.
8
Treaty of the European Union on the Protection of Financial Interests of the Communities of July 26,
1995 (95/C 316/03).
9
See supra note 5 on the First Protocol.
10
See supra note 5 on the EU convention.
11
Joint Action of December 22, 1998. L 358/2, 31-12-1998.

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

the other instruments developed. Most significantly it sets a deadline for im-
plementation and introduces a monitoring procedure by the Council.

e. Finally, reverting to the protection of the EU-budget for a moment, ini-

tiatives to actually unify criminal law, including transnational and suprana-
tional bribery in the context of the EU are well under way with the draft of a
corpus iuris, which has met great interest in the European Parliament. It
could eventually develop into a unified core-criminal code for the European
Union; however, it is early for any reliable prediction.12

Summing up, interesting developments may be identified in the context of the

European Union; they are, however, limited in geographic scope and may be
seen as steps on the way to supranationality.

3. Council of Europe

The approach of the Council of Europe follows yet a different pattern: The
current role of this organisation in Europe in the area of law is to act as a
think tank for legal harmonisation, the protection of Human Rights and to
foster the legal integration of Eastern Europe. Following up on an initiative by
Ministers of Justice of 1994 Heads of Sate have adopted twenty Guiding
Principles13 at their Strasbourg Summit in October 1997. As part of the im-
plementation of its programme the Council of Europe has also prepared a
criminalisation convention.14 Different from the criminalisation initiatives
discussed so far, it uses a very broad notion of corruption, including active
and passive domestic bribery of all sorts of officials, transnational bribes and
the bribery of private persons in a commercial context as well as trading in

12
Delmas-Marty, Vers un espace judiciaire europenne. Corpus Iuris, portant dispositions pnales pour
la protection dintrts financiers de lUnion Europenne, Paris 1996; Delmas-Marty, The European
Union and Penal Law, European Law Journal, March 1998, p. 87 Ss.
13
See supra note 4 on Resolution (97) 24.

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

influence. It links up with previous work of the Council of Europe on mutual

legal assistance and extradition as well as more recent work on money laun-
dering and confiscation of assets. Apart from this broad notion of corruption a
striking difference to the OECD approach to transnational bribery is its refer-
ence back to the law of the victim country for definitions of officials and duty.
Here the Council of Europe echoes the approach chosen in the quite different
setting of the EU. Another feature of the Council of Europes text is its far-
reaching formulations combined with just a set of opt-out-clauses (reserva-
tions), even if last minute efforts have achieved a limitation of the number of
reservations. Instead of adopting the focussed and collective unilateralism of
OECD, the Council of Europe creates a pattern for legal harmonisation of
rules addressing both domestic and transnational corruption, foremost in order
to enable more efficient mutual legal assistance within its geographical
reach. More recently the Council of Europe has adopted a Civil Law Conven-
tion on Corruption.15

It deals with such issues as the compensation of damage, liability, the validity
of contracts and protection of whistle blowers.

Furthermore, the Council of Europe has developed an elaborate follow-up

mechanism under the name GRECO.16 It is construed as a separate agree-
ment, open also to non-member states. It will conduct evaluations focussing
on specific issues, involving all Members using teams of experts. GRECO is
about to start its work in October 1999.

14
See supra note 4 on the Criminal Law Convention.
15
See supra note 4 on the Civil Law Convention. This Convention will be open for signature from No-
vember 4, 1999.
16
Agreement Establishing the Group of States Against Corruption GRECO-, Resolution (98)7.

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4. Other Initiatives

Briefly I will mention two further essential international initiatives establish-

ing minimal standards for its Member States:

a. OAS

The aims of the OAS-Convention come rather close to those of the Council of
Europe, even if the method applied is somewhat different. The Inter-
American Convention Against Corruption of 1996 also applies a broad
concept of bribery, it goes beyond traditional approaches by including illicit
enrichment, a kind of criminally sanctioned reversal of the responsibility of
explanation for sudden increases in the officials assets. The background of the
OAS Treaty is somewhat different from the initiatives mentioned so far: This
instrument is a compromise between Latin-American interests in mutual legal
assistance and extradition and the North-American agenda in criminalising
active transnational commercial bribery. So far it does not have a follow-up
mechanism attached, but OAS is currently developing a more comprehensive
action against corruption, including non-criminal measures.17

b. UN

Finally, within the broadest geographic scope, the initiatives of the United
Nations need to be mentioned. The UN have resumed work18 on corruption
with two General Assembly-Resolutions in 1996.19 They basically pick up the
items of other instruments and welcome the efforts without, however, wanting
to interfere with this work. These policy statements, however, serve as a basis

17
Cf. Symposium on the strengthening of probity in the Hemisphere, November 4, 1998, Documentati-
on and Annexes.
18
An earlier draft anti-corruption convention in the United Nations failed 1979.
19
General Assembly Resolution 51/59 and 51/191.

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

for further work in integrating the corruption-issue into programs against or-
ganised crime.20 Currently ECOSOC is targeting the abuse of offshore resorts
for purposes including the preparation and aftertreatment of bribery. The
General Assembly has recently taken note of a study by the United Nations
Office for Drug Control and Crime Prevention on financial havens.21

III. Specific Issues Relating to the criminalisation of Transnational

Bribery

In a third section of this paper I will focus on some of the key issues of crimi-
nal law as addressed in the Conventions mentioned above:

1. Methodology

First I have to indicate that the wording of the criminalisation Convention of

the OECD is not necessarily precise enough to meet the standards required for
a self-executory international text. The aim has been from the outset and
this is highlighted in Commentary 2 of the OECD-Convention to establish
functional equivalency. The Convention does not attempt substantive uni-
fication, countries have the choice of means, the results have to be compara-
ble. The respective texts of the Council of Europe and the EU are far more
oriented towards actual harmonisation or even unification of criminal law
amongst countries with similar legal systems and standards.

20
Cf. Article 4ter of the Revised Draft UN Convention Against Transnational Organised Crime, GA,
July 9, 1999. A/AC.254/4/Rev.4.
21
Financial Havens, Banking Secrecy and Money Laundering, UNDCP, Study prepared by Bloom ed.
Al., Bloom, New York, 1998.

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

2. Definition of the Public Official

The differences may be less apparent in the definition of the offence, where a
certain uniformity will be necessary, especially when defining the foreign
public official. Whereas the Convention of the EU and the Council of Europe
refer back to the victim-country for the definition of public official 22, it is
in the logic of the OECDs unilateralism and its aim to create a level playing
field of commerce to attempt an autonomous definition of public official,
potentially using the same criteria on a world-wide basis. So even where dif-
ferent rules would apply locally not only persons holding a legislative, ad-
ministrative or judicial office, whether appointed or elected, but also persons
exercising a public function are included in this definition, no matter if state
employees or privately contracted. Even if the functional official is a cate-
gory known to many OECD-countries domestically, the OECD gives it its
own meaning, explained in art. 1 section 4 and Commentary 12 to 19. On the
other hand, where public ownership overreaches the public function, where
for instance a car-manufacturing plant is state owned merely for historical or
fiscal reasons, but is in full competition with private enterprise without pref-
erential treatment by state, its officials would be considered private opera-
tors.23 This is just one example how the OECD tries to bring light into the
grey area between public and private. The instruments, however, still limit
themselves to the corruption of public officials.

3. Definition of the Offence

A wider spectrum of differences in implementation is to be expected regard-

ing the definition of the actual offence: Whether a country chooses to define
the quid pro quo as an illegal bribe contract, as an exchange of a promise of

22
Cf. EU 1997 Article 1c and CoE 1998 Article 1a.

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

undue advantage against first alternative the envisaged breach of duty or

second alternative simply for acting or refraining from acting in the per-
formance of official duties is in the OECD-context left to the domestic legis-
lator of Party States. The first option might have the advantage that it filters
out all kinds of grease payments without further ado, there will be no need for
an exclusionary rule on facilitation payments and similar, the second option is
less demanding in terms of proof. The bottom line is signalled in OECD
Commentary No. 3: To prevent lengthy arguments about domestic definitions
of duty of officials the autonomous definition of the Convention states that the
partial use of discretion is regarded universally as a breach of duty (e.g. auc-
tions of contracts amongst valid bidders for private benefit). The CoE and EU
texts are far more prescriptive in this respect.

4. Responsibility of Legal Persons and Sanctions Against Companies

A brief look at all Conventions shows that they contain the principle of cor-
porate liability. However, as for instance OECD 1997, art. 2 and 3 and
Commentary 20 indicate, the sanctions could also be administrative in na-
ture, the minimum requirement, however, is a monetary sanction meeting the
standard of effective, proportionate and dissuasive penalty.

You will find a similar approach both in the Council of Europe and the EU
instruments; For the protection of financial interests the EU has in 1997 en-
acted a Second Protocol24 to the Convention of Protection of Financial Inter-
ests of 1995 also applicable to corruption endangering the EU-budget. This
instrument introduces a vicarious responsibility and measures, however,
evades direct reference to criminal responsibility or sanctions.25

23
OECD 1997, Commentary No. 17.
24
See supra note 5.
25
EU protocol II 1997, articles 3 and 4.

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 9th International Anti-Corruption Conference (IACC), 10-15 October, 1999, Durban, South Africa

The detailed texts on responsibility of legal persons in the Convention of the

Council of Europe26 explicitly allow for non-penal sanctions.

Reverting to the OECD-context: The concept of functional equivalence

even allows to fulfil the further requirement of confiscation of both, bribes
and benefits, by way of monetary sanctions of comparable effect. This
might for some jurisdictions be a way out of the technical difficulty of calcu-
lating the proceeds of bribery, since a penalty would rather be governed by
culpability than by provenance of crime and would allow for a wide discretion
in fixing the amount of penalty.

You will easily detect what formidable difficulties the OECD-Working Group
is facing in its follow-up process when having to evaluate the equivalence of
such diverging concepts as fine and confiscation; confiscatable are all values
derived from crime, the fine in turn is dependant upon culpability. To a lesser
extent also the Council of Europe - and the EU-bodies will be faced with such
problems of applied comparison of law.

5. Jurisdiction

One of the main concerns has been to reduce the loopholes between country
jurisdictions in transnational corruption. Territoriality is to be interpreted
broadly and additionally the Conventions advocate the nationality principle.
They all, however, allow to opt out of the nationality principle. The OECD as
a minimum requires extradition of nationals as a -maybe imperfect- substitute.

Difficulties are to be expected where foreign subsidiaries through foreign

operators engage in bribery. The parent company and its officials can be held
responsible where they are in any way linked to the crime as accomplices27,

26
CoE 1998, articles 18 and 19.
27
OECD 1997, article 1 section 2.

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including through authorisation. Where they have been caught unawares, the
host-state of the parent company may have jurisdiction on the basis of nation-
ality or depending upon the case and specific legislation based on a special
corporate liability for negligent lack of control28. But here national law di-
verges considerably.

6. Enforcement

Picking up a seemingly very technical point: The OECD-Convention respects

the established domestic rules of prosecution (including traditional rules on
prosecutorial discretion). It rules out, however, that decisions are influenced
by considerations of national economic interest, the potential effect upon re-
lations with another state or the identity of the natural or legal persons in-
volved.29 If you are in doubt how relevant this point is you will maybe want
to consider the arms-trade for a moment, where frequently we are faced with
government to government interaction where preferential treatment is likely.

7. Money Laundering and Accounting Offences

The Conventions primarily deal with criminalisation of the bribery of foreign

public officials. However, they also contain ancillary provisions on money
laundering and falsified accounts. Frequently the significance of these rules is
underestimated30.

Especially large scale and continuous corruption depends on long term money
management. Slush funds have to be built up well beforehand. The payments
have to be engineered in a way not to attract too much attention, both on the

28
Cf. EU Protocol II 1997 article 3 p. 2 CoE 1998 article 18 p. 2.
29
OECD 1997 article 5.

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payment and the recipient side. The bribe and the newly forfeitable profits of
transnational bribery will need to be hidden.

This issue has been acknowledged in all three fora, I am discussing here. The
Council of Europe has enacted its Convention 141, the EU its Protocol II to
the Convention on Protection of Financial Interests and the Convention of the
OECD asks for criminalisation of corruption-money laundering and forged,
falsified and incomplete bookkeeping. However, the OECD-text on money
laundering is less than satisfactory since it refers to the national treatment of
bribery and proceeds. Here loopholes in the implementation are to be ex-
pected, especially in south-east Asia. However, other fora have developed
rules going beyond this text and they have been accepted virtually by the
same countries as the OECD-Convention (cf. the Revised Recommendation
of the FATF of 1996). The OECD Working Group on Bribery has the man-
date to explore whether further steps need to be taken against money laun-
dering and the misuse of offshore-financial resorts.

The most difficult problem relating to money laundering is in my view just

as in the parallel topic of confiscation the issue of laundering of proceeds:
Are gains generated through corruption-affected contracts proceeds of crime?
Can they be object of money laundering? Some will argue that these gains are
the results of legitimate business, even if obtained through illegal means. Oth-
ers will hold that the bribe was not really causal for the awarding of the con-
tract/for the gain. Yet others will want to deduct investments from the confis-
cated gains. And, the link between confiscation and money laundering is only
really established where countries define money laundering as the obscuring
of forfeitable funds.

30
Cf. Paolo Bernasconi, Off-Shore Domizilgesellschaften als Instrument der Bestechung und der Geld-
wscherei Zehn Empfehlungen gegen den Missbrauch von Off-Shore Domizilgesellschaften, in:
Pieth/Eigen: Korruption im internationalen Geschaeftsverkehr, Frankfurt/Basel, 1998.

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IV. Conclusion

If in all fora discussed the anti-corruption-programme heavily relies on crimi-

nal law, the aim is not really to send as many managers to prison as possible:
The aim is to motivate namely corporations to a change of attitude and to
introduce sound internal rules and controls, applied down to the operational
level.31 Criminal law mainly has the function of clarifying what is forbidden.
Some of the non-criminal sanctions might be far more effective, they, how-
ever, depend on a clear definition of the illegal. Overall the instruments dis-
cussed will change everyday practice substantially and have a strong influ-
ence not only on life in the industrialised states but world wide.

31
Cf. John Brademas and Fritz Heimann, Tackling International Corruption, Foreign Affairs, Septem-
ber/October 1998 p. 22.

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