The Working Group on Bribery adopted a post-Phase 2 assessment mechanism in December 2009, to act as a permanent cycle of peer review, involving systematic on-site visits as a shorter and more focused assessment mechanism than for Phase 2. The aim of the mechanism is to improve the capacity of Parties to fight bribery in international business transactions by examining their undertakings in this field through a dynamic process of mutual evaluation and peer pressure. The first cycle of review under this mechanism is known as Phase 3.
The purpose of Phase 3 is to maintain an up-to-date assessment of the structures put in place by Parties to the OECD Anti-Bribery Convention to enforce the laws and rules implementing the Convention and the 2009 Recommendations. Phase 3 involves a shorter and more focussed evaluation than Phase 2, and concentrates on the following three pillars:
As for Phase 1 and 2, the approach for Phase 3 evaluations is “vertical” (based on evaluations for each country). The Working Group on Bribery established a schedule of Phase 3 examinations from 2009 to 2014, which includes the designation of two countries to act as lead examiners in each evaluation. The countries acting as lead examiners choose the local/national experts who take part in the on-site visits and they prepare the preliminary country report. The entire Working Group on Bribery, made up of representatives from all States Parties to the Anti-Bribery Convention, evaluates each country’s performance and adopts conclusions.
Elements of the Phase 3 Evaluation
The Phase 3 Monitoring Information Resources booklet (PDF) contains the text of the Phase 3 procedure and questionnaire, and the Convention.
The Working Group has adopted a questionnaire for Phase 3, which is sent to the country to be evaluated. Supplementary questions specific to the country concerned take into account the results of the Phase 2 evaluation of that country. The questionnaire elicits information concerning implementation of the Convention and the 2009 Recommendations.
On-site visits are normally conducted over a three-day period (as opposed to approximately one week in Phase 2), and are carried out in accordance with the Phase 3 procedure. During on-site visits, a country is not required to disclose information that is otherwise protected by a country’s laws and regulations, and/or professional rules of conduct.
On-site visits by the lead examiners and OECD Secretariat are an effective way to obtain information on enforcement and prosecution. They also offer 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. Each report is based on the replies to the questionnaires, information obtained during the on-site visit to the evaluated 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 mutual evaluation is undertaken through an evaluation by the Working Group on Bribery in International Business Transactions. 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 agree to make.
The evaluated 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 being evaluated ensure that the evaluation reflects the fullest possible understanding of the country’s approach. The evaluated country cannot block the Group’s decision to adopt the evaluation and its recommnedations. However it has the right to have its views, comments and explanations fully reflected in the report and the evaluation.
Like Phase 2, evaluated countries will be asked to provide follow-up reports on the implementation of recommendations adopted by the Working Group. Oral reports will not be automatic, however. Instead, during the adoption of the Phase 3 report and recommendations, the Working Group may determine that an evaluated country should be required to report orally within 12 months on specific recommendations or follow up issues. In all cases, the evaluated country is required to submit a written report within 24 months of the adoption of the evaluation report explaining steps taken by it concerning all Phase 3 recommendations and follow-up issues. When considering those steps taken, the Working Group may require the evaluated country to give a further oral report within a further 12 months on key outstanding recommendations.
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 two experts from their countries.
The evaluated 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 2009 Recommendations. However, the monitoring of the practical application 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 3, where enforcement in the private sector is also examined. Notably, business and civil society groups (such as trade unions or non-governmental organisations) very often take part in on-site visits.
Because peer review is an inter-governmental process, business and civil society groups are not invited to participate in the formal evaluation process, in particular in the evaluation and follow-up in the Working Group.