The purpose of Phase 2 is to study the structures put in place to enforce the laws and rules implementing the OECD Anti-Bribery Convention and to assess their application in practice. Phase 2 broadens the focus of monitoring to encompass more fully the non-criminal law aspects of the 1997 Revised Recommendation. Phase 2 also serves an educational function as participants discuss problems and different approaches.
Phase 2 includes elements of both self and mutual evaluation. The approach is “vertical” or based on examinations country-by-country. In consultation with the country examined, two countries are chosen to lead the examination. The countries acting as lead examiners choose the experts who take part in the on-site visits and preparation of the preliminary report. The entire group of countries Party to the Convention evaluates each country’s performance and adopts conclusions.
Elements of the Phase 2 evaluation
- Preparation of the evaluation in the Working Group on Bribery
- Appointment of two countries to act as lead examiners
- Replies to an evaluation questionnaire
- On-site visit to the country examined
- Preparation of a preliminary report on country performance
- Evaluation by the Working Group on Bribery
- Adoption by the Working Group of a report, including recommendations, on country performance
Phase 2 Monitoring Information Resources (contains the text of the guidelines, procedure, questionnaire and Convention)
The Working Group adopted a questionnaire for Phase 2, which is sent to the country to be examined. Supplementary questions specific to the country concerned take into account the results of the Phase 1 evaluation of that country. The questionnaire elicits information concerning implementation of the 1997 Revised Recommendation.
On-site visits, which are approximately one week, are carried out in accordance with pre-determined terms of reference. During on-site visits, a country is not required to disclose information that is otherwise protected by a country’s laws and regulations.
On-site visits by the lead examiners and OECD Secretariat are an effective way to obtain information on enforcement and prosecution. It also offers the possibility to talk with magistrates, police, tax and other authorities responsible for applying the law.
In addition, informal exchanges with key representatives of the private sector and civil society can contribute to determining the impact that the laws and enforcement have had on behaviour, including compliance schemes. Each country is consulted on the best manner of obtaining input from the private sector and civil society.
Preliminary report assessing performance
Reports include an evaluation and recommendations for improvement. This report is based on the replies to the questionnaires, information obtained during the on-site visit to the examined country, and independent research carried out by the lead examiners and Secretariat. The country undergoing evaluation has an opportunity to comment on the preliminary report. The preliminary report is drafted by the lead examiners and the Secretariat.
Evaluation by the Working Group on Bribery
The Phase 2 review is undertaken through evaluation by the Working Group. The evaluation provides an opportunity to discuss difficult issues, to listen to a country explain its legal system and approach, and to formulate the recommendations that the Group agrees to make. The examined country may bring experts to the session, including from the enforcement community, to respond to questions from the Group.
Adoption of a report
The Working Group formulates recommendations concerning the country’s performance, which is incorporated in the report. Discussions in the Working Group and interaction between the lead examiners, Secretariat and the country examined ensure that the evaluation reflects the fullest possible understanding of the country’s approach. The examined country cannot block the Group’s decision to adopt the evaluation. However it has the right to have its views, comments and explanations fully reflected in the report.
Budget for on-site visits
In principle, each country takes part in the evaluations of two other countries. For each country they evaluate, countries acting as lead examiners bear the costs of travel and expenses for one to three experts from their countries.
The examined country bears the cost of replying to the questionnaires, translating relevant texts into one of the two OECD official languages (English or French), and preparing the on-site visit.
Other OECD bodies
The Working Group is responsible for overall review of country performance in implementing the Convention and the 1997 Revised Recommendation. However, the monitoring of practical applications of broader issues might require specific expertise that may be found in the other parts of the OECD. In conducting its evaluation, the Working Group may draw on information and expertise developed by other OECD bodies, particularly the Committee on Fiscal Affairs, the Working Party on Export Credits and Credit Guarantees and the Development Assistance Committee.
While civil society does not take part in the formal evaluation exercise, their views can be expressed and reflected in Phase 2, where enforcement in the private sector is also examined. Notably, businesses and civil society groups (such as trade unions or non-governmental organisations) very often take part in on-site visits. Providing the schedule of the country examinations publicly also permits such groups to provide any information or opinions in writing in a timely way. Different options for involvement, or opportunity to express views, are considered by the country to be examined.
Because peer review is an intergovernmental process, business and civil society groups are not invited to participate in the formal evaluation process, in particular in the evaluation by the Working Group.
Procedure of Self- and Mutual Evaluation - Country Monitoring Principles