OECD Integrity and Anti‑Corruption Review of Ukraine

10. Incentivising and rewarding good corporate behaviour

Abstract

This chapter assesses Ukraine with respect to the sections of the 2021 Anti-Bribery Recommendation which urge countries to incentivise integrity in companies through a number of law enforcement measures and conditions for access to public advantages. Ukraine reinforced its regime of criminal liability of legal persons through recent legislative amendments, but it is still not effectively enforceable for all corruption offences and therefore requires further reform. The chapter recommends that Ukraine consider introducing compliance as a defence or mitigating factor and extend possibility of non-trial resolutions (plea-bargaining) to legal persons in corruption cases. Ukraine should also make the adoption by companies of anti-corruption programmes a condition for their access to public advantages beyond public procurement contracts and address the existing gaps in the regime of debarment of companies from public advantages over convictions for corruption.

10.1. Introduction

An OECD study (OECD, 2020[1]), which looked at why companies in OECD countries adopt anti-corruption compliance mechanisms, found that “a concern with prosecution and a resulting loss to reputation, whether because of an enforcement action against it or because of seeing enforcement actions taken against other companies in its industry” was among top drivers1 for establishing or strengthening anti-corruption compliance tools. In the ACN region, the OECD Business Integrity study (OECD, 2022[2]) found that “the main arguments for not investing in the development of business integrity systems inside companies” included a lack of state-enforcement as number one factor and a lack of executive commitment. Enforcement of corporate liability is therefore key to contributing into business integrity of the country and building stronger good corporate behaviour culture.

Nevertheless, governments can use a variety of incentives and disincentives to prompt companies to adhere to high integrity standards in their operations. They can, in particular, make access to various public advantages conditional on the companies’ adoption of robust internal controls and anti-corruption compliance mechanisms. Equally, they can explore non-trial resolutions, including for companies with effective internal controls, ethics, and compliance programmes, and consider effective compliance programmes a mitigating factor in corruption cases.

Such incentives and disincentives have been at the heart of OECD Working Group on Bribery instruments related to the OECD Anti-Bribery Convention – the 2021 Anti-Bribery Recommendation, originally adopted in 2009, the 2019 Recommendation on Bribery and Officially Supported Export Credits, originally adopted in 2006, and the 2016 Recommendation for Development Co-operation Actors on Managing the Risk of Corruption, which replaced the 1996 Development Assistance Committee Recommendation on Anti-Corruption Proposals for Bilateral Aid Procurement.

One of the key findings of another OECD study (OECD, 2019[3]), which looked at successfully resolved cases by the Working Group on Bribery countries, was that 78% of successfully concluded foreign bribery cases at the time of the study had been concluded through non-trial resolutions, making it the primary enforcement vehicle of anti-foreign bribery laws of the OECD Working Group on Bribery (OECD WGB) members. When updating and expanding upon its 2009 Anti-Bribery Recommendation, the OECD Working Group on Bribery reflected on trends and challenges in the foreign bribery field and set out to ensure that the Recommendation remains relevant and effective. As a result, a new section on non-trial resolutions was added to the 2021 Anti-Bribery Recommendation. Similarly, several sections on incentives were added into the revised Recommendation.

In order to incentivise and reward good corporate behaviour, the 2021 Anti-Bribery Recommendation (Section XV, ii) urges member countries to “consider taking into account mitigating factors, such as (a) fulsome, timely, and voluntary disclosures to law enforcement authorities of misconduct; (b) full co-operation with law enforcement authorities including the disclosure of all facts relevant to the wrongdoing at issue; (c) acceptance of responsibility; or (d) timely and appropriate remediation including the implementation or enhancement of an effective ethics and compliance programme”.

The 2021 Anti-Bribery Recommendation (Sections XVII and XVIII) further recommends that member countries “consider using a variety of forms of resolutions when resolving criminal, administrative, and civil cases with both legal and natural persons, including non-trial resolutions”. In such cases, countries are to ensure that non-trial resolutions follow due process, are applied transparently and accountably through establishing clear and transparent framework for non-trial resolutions and criteria on their use, publication of information on their advantages and elements of concluded non-trial resolutions. The countries are also to ensure appropriate oversight by judicial or other relevant competent authority.

The 2021 Anti-Bribery Recommendation (Section XXIII, D) also urges countries to “encourage their government agencies to consider…internal controls, ethics and compliance programmes or measures...in their decisions to grant public advantages, including public subsidies, licences, public procurement contracts, contracts funded by official development assistance, and officially supported export credits”, as well as to “provide training and guidance to their relevant government agencies, on how internal controls, ethics and compliance programmes or measures are taken into consideration…and ensure such guidance is publicised and easily accessible for companies.”

Finally, the 2021 Anti-Bribery Recommendation (Section XXIV) urges countries to permit, through their laws and regulations, debarment from competition for public contracts and other public advantages of “companies determined to have bribed foreign public officials in contravention of that member country’s national laws, considering mitigating factors.” Countries are to ensure that relevant public agencies have access to information on companies sanctioned for corruption, take into consideration as mitigating factors the remedial actions that companies take to address corruption risks, and provide guidance to public agencies both on debarment and on remedial measures.

10.2. Ukraine should actively enforce liability of legal persons and further improve its legal framework

In 2014, Ukraine introduced a quasi-criminal corporate liability model. Ukrainian Criminal Code (Verkhovna Rada of Ukraine, 2001[4])provides that “measures of criminal law nature” (Chapter XIV-1 of the general part of the CC) are applicable to a legal person if: (1) an authorised person of the legal entity committed on behalf and in the interest of legal entity offences of, inter alia, money laundering (Article 209 CC), active bribery in private or public sector (Articles 368-3 and 369 CC respectively), active bribery of person providing public services (Art. 368-4 CC), trading in influence (Article 369-2 CC); (2) an authorised person failed to implement measures for corruption prevention foreseen in the law or statutory documents of the legal entity, resulting in the commission of offences, including money laundering, active bribery in private or public sector, active bribery of a person providing public services, or trading in influence.

In 2022, Ukraine requested and was subsequently granted a participant status to the OECD Working Group on Bribery. This status launched a reform process in Ukraine, which was widely quoted by the government, the business, and the civil society in the virtual consultations for this review. The participant status lapsed in February 2025, at which point Ukraine submitted a formal request to join the Working Group on Bribery.

Ukraine has limited practice of enforcement of corporate liability for corruption offences. From 2019 until June 2024, the High Anti-Corruption Court (HACC) of Ukraine issued one sentence which has come into force and applied measures of criminal law nature to a legal person comprising the fine of UAH 340 000.2 During the virtual consultations, the authorities have shared information that there were two convictions of legal persons for corruption in total. Ukraine has not yet had a case of foreign bribery perpetrated by a legal person prosecuted, investigated, nor detected.

Recommendation: Such limited practice is problematic in itself and highlights the need for Ukraine to take practical measures to step up enforcement of corporate liability. Ukraine could, for example, make it a priority for the anti-corruption law enforcers – the leadership of the NABU and the Specialised Anti-Corruption Prosecution Office of Ukraine (SAPO) could prioritise cases involving legal persons in their policy documents and internal communications. Ukraine could also develop and provide practical guidance on these types of cases and training to the law enforcement, in particular the NABU and the SAPO, and the judiciary, in particular the HACC.

Limited enforcement also highlights a clear need for reform of the corporate liability regime. This too has been widely supported by representatives of authorities during the virtual consultations, equally by representatives of non-governmental stakeholders, including business. For example, under Articles 214 and 284 of the Criminal Procedure Code (CPC) (Verkhovna Rada of Ukraine, 2013[5]), the application of measures of criminal law nature to a legal entity is not autonomous and is restricted to cases where the natural person, the perpetrator is identified, prosecuted and convicted, in terms of both substantive and procedural criminal law; proceedings against a legal entity are opened and carried out simultaneously with the relevant criminal proceedings of a natural person, and are closed if criminal proceedings against the natural person have been closed or the person was acquitted.

This has been addressed in parts through the amendments into the CC (Verkhovna Rada of Ukraine, 2001[4]), CPC (Verkhovna Rada of Ukraine, 2013[5]) and other legal acts of Ukraine adopted on 4 December 2024. However, these amendments affected corporate liability regime for selected corruption offences – active bribery of foreign public officials (Article 369 of the CC), money laundering (Article 209 of the CC), and trading in influence (Article 369-2 of the CC) as they relate to foreign public officials – and may have limited effect on enforcement.

In-depth overall analysis of current corporate liability regime and of the recently adopted amendments lies outside of the remit of this review and is being conducted by OECD separately as part of the forthcoming report on Fighting Transnational Bribery in Ukraine: assessment of legal and policy frameworks. It will be published at the same time as this review and should be read in conjunction.

Recommendation: Ukraine is recommended to implement the necessary changes into its legislative framework on liability of legal persons, as recommended by OECD in the above-mentioned report, to ensure active enforcement of the corporate liability for corruption and thus motivate business to act integrally.

10.3. Ukraine should consider introducing compliance as a defence or mitigating factor, while ensuring the necessary safeguards

The sections below will focus on several points that directly link to incentivising internal controls and providing companies with possibility of due diligence defence, as well as of remedial and other actions to seek mitigation of sanctions. Such mitigation will be reviewed in the context of four specific avenues as outlined in the 2021 Anti-Bribery Recommendation:

• Avenue one: fulsome, timely, and voluntary disclosures to law enforcement authorities of misconduct.

• Avenue two: full co-operation with law enforcement authorities including the disclosure of all facts relevant to the wrongdoing at issue.

• Avenue three: acceptance of responsibility.

• Avenue four: timely and appropriate remediation including the implementation or enhancement of an effective ethics and compliance programmes, as well as availability of non-trial resolutions as a tool to incentivise good corporate behaviour.

Ukrainian corporate liability regime does not provide for the due diligence (compliance) defence as such, i.e. when the law provides for a defence which the company can use to argue against imposition of sanctions or for mitigation of sanctions. Already in 2019, the authorities indicated that discussions are ongoing with business representatives, with the participation of the Business Ombudsman Council, aimed at introducing a due diligence defence (OECD, 2022[6]). However, after five years, these discussions have not yielded results.

Recommendation: Ukraine should consider introducing due diligence defence. The defence can be formulated in different ways, for example, that the company had sufficient compliance rules and mechanisms and that it did everything in its power to prevent the crime or that the company had an effective internal controls and compliance programme. The court or another sanctioning body should review each specific case and decide whether conditions set for application of the defence have been satisfied.

The range and clarity of mitigating factors in corruption cases available to Ukrainian companies and companies operating in Ukraine are also not sufficient to incentivise good corporate behaviour, self-reporting, full co-operation with law enforcement or to prompt proactive remediation.

Currently, under Article 96-10 of the CC, when applying measures of criminal law nature to a legal person, the court considers, inter alia, the gravity of the crime committed, the degree of the perpetrator’s criminal intent, and measures undertaken by the legal person to prevent criminal offence (Verkhovna Rada of Ukraine, 2001[4]). However, these appear to be general in nature and have not been applied in practice in corruption cases – therefore there is no case-law interpretation of these concepts. This issue has been identified in the framework of OECD Istanbul Anti-Corruption Plan monitoring of Ukraine (OECD, 2022[6]).

During the virtual consultations with Ukrainian authorities and business – both stakeholder groups did not think that there is a clear link to the possibility of using effective internal controls and compliance programme for mitigating sanctions applied to legal persons for corruption offences. The latest amendments to the corporate liability regime introduce additional factors for court’s consideration for foreign bribery and related trading in influence and money laundering, such as “actions or inaction of the legal person directly linked” to the acts of foreign bribery, but still do not provide a clear link to due diligence.

Ukrainian legislation does not provide for a possibility of taking into account “fulsome, timely, and voluntary disclosures to law enforcement authorities of misconduct” by a legal person as a mitigating factor.

Such possibility would incentivise self-reporting by companies that have detected wrongdoings through their own internal investigations or other channels and wish to remediate and, according to the business community of Ukraine, would be a welcome reform. In addition to incentivising good corporate behaviour, it could boost detection of corruption, including foreign bribery – making it also a strong case for authorities.

Practice of the OECD Working Group on Bribery demonstrates that such provisions do provide for higher enforcement rates. In fact, OECD data indicates that self-reporting by companies is, numerically, the most important single source of detection for the crime of foreign bribery, and self-reporting played a role in almost a quarter of sanctioned foreign bribery cases. Moreover, it proves to be a highly reliable source of detection - in particular, cases that were originally detected through corporate self-reporting have a higher ‘yield’ in terms of sanctions than the other sources of detection (such as the media or whistleblowers). Finally, it aids the state law enforcement bodies to tap into resources they would not have had otherwise: the companies that self-reported obtain information using their own resources in a variety of internal control processes. Thus, the internal audit function generated the information in 24% of the self-reported cases, ‘mergers and acquisitions due diligence’ accounted for 7% of the self-reported cases, whistleblowers reporting to internal processes for 5% and pre-listing due diligence for 4% (OECD, 2017[7]; 2019[8]).

Regarding “full co-operation with law enforcement authorities including the disclosure of all facts relevant to the wrongdoing at issue”, recent amendments introduced a possibility to consider company’s co-operation with investigation and prosecution. Under Article 483-18 of the CPC,, the level and nature of co-operation that the legal person provides during the pretrial investigation, including the providing of all necessary information to identify physical persons, which committed criminal offence, are considered by the prosecutor as part of plea-agreement (Verkhovna Rada of Ukraine, 2013[5]). This is a positive development, however, as other introduced changes it is narrow in scope as it applies only to foreign bribery and related money laundering and trading in influence. As mentioned earlier, there are no such cases currently under investigation or prosecution in Ukraine. Most of corruption offences committed by legal persons would not qualify for a possibility of such mitigating factor.

Similarly, “acceptance of responsibility” as a mitigating factor has been introduced as a pre-requisite for entering the plea-agreements by the legal persons in Ukraine through the above-mentioned amendments, and similarly are too narrow in application to provide for effective results in the context of either incentives or detection.

Finally, there is no possibility for companies under Ukrainian law to use “timely and appropriate remediation including the implementation or enhancement of an effective ethics and compliance programme” as a mitigating factor and no availability of non-trial resolutions as a tool to incentivise good corporate behaviour. In OECD, a number of countries have created direct incentives for companies that establish an anti-corruption programme, for example, by providing that they will get “credit” for having a programme if they ever come under investigation for corrupt conduct. Ukraine may consider such approach.

Again, introduction of such mitigating factor or “credit” has been boosting enforcement and promoting business integrity. However, an important factor to consider is that while law enforcement authorities are further encouraged by the 2021 Anti-Bribery Recommendation “to incentivise companies to develop effective internal controls, ethics, and compliance programmes or measures, including as potential mitigating factor”, such incentivising should not prevent effective, proportionate, and dissuasive sanctions. There should be clear guidance on how to assess the adequacy and effectiveness of internal controls, ethics and compliance programmes or measures, and its final consideration should remain “the sole responsibility of judicial, law enforcement, or other public authority”.

Recommendations: Ukraine should introduce a broader range of factors, which could mitigate the liability of companies, as well as extend the scope of newly introduced availabilities to all corruption offences. In particular, with a view to incentivising and rewarding good corporate behaviour, Ukraine could introduce into its criminal procedure legislation a possibility of taking into account the following mitigating factors for all corruption offences committed by legal persons:

• fulsome, timely, and voluntary disclosures to law enforcement authorities of misconduct

• timely and appropriate remediation including the implementation or enhancement of an effective ethics and compliance programme.

Ukraine should also extend the possibility of taking into account the following mitigating factors to all corruption offences committed by legal persons:

• full co-operation with law enforcement authorities including the disclosure of all facts relevant to the wrongdoing at issue

• acceptance of responsibility.

Final consideration on all of the above mitigating factors should remain the sole responsibility of judicial, law enforcement, or other public authority.

With introducing the above measures, Ukraine should develop clear guidance on how to assess the adequacy and effectiveness of internal controls, ethics and compliance programmes or measures. In developing such guidelines, Ukraine could make use of the extensive experience of the Working Group on Bribery on this matter through the Secretariat, analytical materials of the OECD or by requesting bilateral expert advice from OECD WGB members.

10.4. Ukraine should consider introducing non-trial resolutions including to incentivise good corporate behaviour

The 2021 Anti-Bribery Recommendation defines non-trial resolutions as “mechanisms developed and used to resolve matters without a full court or administrative proceeding, based on a negotiated agreement with a natural or legal person and a prosecuting or other authority.” It also provides for clear safeguards to ensure due process, transparency and accountability of this instrument.

Box 10.1. Ensuring due process, transparency, and accountability of non-trial resolutions in the 2021 Anti-Bribery Recommendation

XVIII. RECOMMENDS that member countries ensure that non-trial resolutions used to resolve cases related to offences under the OECD Anti-Bribery Convention follow the principles of due process, transparency, and accountability, and in particular:

i. Adopt a clear and transparent framework regarding non-trial resolutions, including the authorities entitled to enter into non-trial resolutions, whether these resolutions are available to natural and/or legal persons, and the requirement for the alleged offender to admit facts and/or guilt, where applicable.

ii. Develop clear and transparent criteria regarding the use of non-trial resolutions including, where appropriate, voluntary self-disclosure of misconduct, co-operation with law enforcement authorities, and remediation measures.

iii. Provide clear and publicly accessible information on the advantages that an alleged offender may obtain by entering into a non-trial resolution.

iv. Where appropriate, and consistent with data protection rules and privacy rights, as applicable, make public elements of non-trial resolutions, including:

a. the main facts and the natural and/or legal persons concerned

b. the relevant considerations for resolving the case with a non-trial resolution

c. the nature of sanctions imposed and the rationale for applying such sanctions

d. remediation measures, including the adoption or improvement of internal controls and anti-corruption compliance programmes or measures and monitorship.

v. Ensure that foreign bribery resolved by non-trial resolutions is punishable by transparent, as well as effective, proportionate and dissuasive sanctions as required by Article 3 of the OECD Anti-Bribery Convention.

vi. Ensure that the non-trial resolution of foreign bribery cases does not constitute an obstacle to the effective investigation and prosecution of natural or legal persons in other countries, and generally allows for effective international co-operation, as provided under Articles 9 and 10 of the OECD Anti-Bribery Convention.

vii. Ensure that the conclusion of a non-trial resolution with a natural or legal person is without prejudice to an enforcement action against other relevant natural or legal persons, where appropriate.

viii. Ensure that non-trial resolutions are subject to appropriate oversight, such as by a judicial, independent public, or other relevant competent authority, including law enforcement authorities.

Source: (OECD, 2021[9]), Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions

The OECD study on non-trial resolutions, found that the non-trial resolutions systems differed in legal and procedural approaches, but they shared common features, and nominally broke them down into the below five forms:

• Form 1: the termination of an investigation without prosecution or the termination of another enforcement action, subject to the fulfilment of specific conditions, notably disgorgement of profits.

• Form 2: the suspension or deferral of a prosecution or other enforcement action, subject to the fulfilment of specific conditions.

• Form 3: all administrative and civil proceedings that result in a final decision imposing sanctions without criminal conviction.

• Form 4: the resolutions that amount to a conviction, but do not imply an admission of guilt.

• Form 5: the resolutions equivalent to plea agreement, which require the defendant’s admission of guilt and amounts to a conviction.

The study also identified non-trial resolution systems which took multiple forms or led to different outcomes depending on the facts of the case, and dubbed them as “mixed”, i.e. belonging to more than one category (OECD, 2019[3]).

In its ambition to align with OECD WGB standards, Ukraine strives to take into consideration its good practices, including those that support enforcement against foreign bribery and contribute to business integrity. As part of the above-mentioned reform, Ukraine extended a possibility of plea agreements to legal persons in cases of active bribery of foreign public officials, and related money laundering and trading of influence – i.e. providing for a possibility of the fifth form of non-trial resolutions.

Under the current amendments, an agreement could be reached between the legal person and the prosecution on the initiative of either side at any point starting from initiation of the criminal proceeding against a legal person with admission of guilt for reduced sanctions. The requirements for such an agreement, including admission of the guilt by the legal person, as well as procedure for its adoption and judicial oversight of this process have been defined in law (Articles 483-17 to 483-22 of the CPC).

Again, these provisions cover only foreign bribery and related money laundering and trading in influence, rendering them narrow in scope. They also lack elements, that would incentivise businesses to introduce internal controls and anti-corruption compliance mechanisms. In particular, the voluntary self-disclosure of misconduct, as well as remediation measures are not included into the criteria for the plea-bargaining.

Other forms of non-trial resolutions are currently not available: the law does not allow the court to defer the application of sanctions on legal persons if the latter complies with organisational measures to prevent corruption as determined by the court.

Also, back in 2019, the authorities reported ongoing discussions on issues of deferred prosecution agreements (DPAs) that could be introduced in the law in the future. They shared that the law may stipulate different measures that can be applied by courts while deferring (suspending) the main sanction, for example:

• to develop and implement a programme of effective, necessary and reasonable internal controls and other measures with the aim to prevent perpetration of the criminal offence

• to make periodic reports on its business operations and deliver them to the authority competent for supervision

• to refrain from business activities which might provide an opportunity or incentive for reoffending

• to eliminate or mitigate the damage caused by the criminal offence.

These have been welcomed by the monitoring team at the time (OECD, 2022[6]).

During the virtual consultations for this review, representatives of business expressed strong support for introduction of such instruments and explained that they put forward such proposals to the authorities, which were in the end not taken on board.

Finally, in certain Working Group on Bribery members, non-trial resolutions provide a means to impose remedial measures designed to prevent future wrongdoing by legal person, including the engagement of an external party to assess the state of the corporate compliance programme and monitor efforts to improve it. This is often referred to as a “monitorship”, and typically involves the appointment of an independent expert or consultant – a “monitor” to assess whether the offending company fulfils its obligations under the resolution to improve its corporate compliance efforts.

Similarly, there have been active discussions of introducing an instrument of monitorships in Ukraine. To this end, the National Agency on Corruption Prevention has submitted its proposals into the initial draft legislation on reform of corporate liability for corruption; the business has been actively supporting this idea as well. Authorities explained that these proposals have been later dropped to provide for time to study the issue more in-depth and find the best suitable solution for Ukraine.

This is a welcome initiative, as the most active enforcers from among the OECD Working Group on Bribery members have introduced such instruments in their jurisdictions and by now have developed practice that can be useful for Ukraine (see Box 10.2). And indeed, Ukraine would need to consider issues in regard to appointment and selection of “monitors”, their mandate and powers, and oversight for “monitors” to ensure that the system is fit for purpose.

Box 10.2. Monitors of anti-corruption compliance

Different countries refer to these experts or consultants using various labels. In the United Kingdom, the Serious Fraud Office may require the company to appoint a “monitor” as part of a DPA. In Brazil, Leniency Agreements concluded with the Federal Prosecution Service can require companies to appoint a “compliance monitor”. In the United States, the Department of Justice resolutions may call for an “independent corporate monitor” or “independent compliance monitor”, while the Security and Exchange Commission resolutions may require a company to engage an “independent consultant”. Furthermore, the expert may be an unaffiliated, independent individual knowledgeable in the fields of corporate governance and anti-bribery legislation. At other times, the offending company may engage a law firm, consulting company, or another entity to carry out the monitorship. Elsewhere, a government agency may be tasked with overseeing the company’s efforts to improve compliance. This is the case in France, where a public-interest judicial agreement can mandate that the company develop a compliance programme under supervision of the Anti-Corruption Agency (AFA). Similarly, in Brazil, a department of compliance specialists within the Office of the Comptroller General (CGU) will monitor a legal entity’s compliance programme if it concludes a Leniency Agreement with the CGU and the Attorney General´s Office.

Source: (OECD, 2019[3]) Resolving Foreign Bribery Cases with Non-Trial Resolutions: Settlements and Non-Trial Agreements by Parties to the Anti-Bribery Convention and select OECD WGB Monitoring reports (OECD, 2025[10]).

Ukraine also needs to consider how it will approach ensuring the transparency and accountability of the non-trial resolutions, when moving ahead with applying them in corruption cases committed by legal persons. There is also ample practice among OECD Working Group on Bribery members on these matters, which could be useful for Ukraine in this matter.

Recommendations: Ukraine should extend possibility of plea-bargaining to legal persons in all corruption cases and consider expanding the criteria for plea-bargaining to include the voluntary self-disclosure of misconduct and remediation measures.

Ukraine should also take advantage of its close co-operation with the OECD Working Group on Bribery and review good practice of its members to make best use of non-trial resolutions – making them a tool to incentivise businesses to introduce and strengthen internal controls. It could, for example, consider introducing other forms of non-trial resolutions, as well as go ahead with introducing “monitorship” mechanism. In doing so, it should clearly define the procedures for selection and appointment of monitors, their mandate and the mechanism for appropriate oversight. This can be done taking into account OECD WGB practice: relevant Ukrainian authorities and other stakeholders can study the various models of ensuring that deferral of sanctions and remedial actions are adequate and identify the best suited model or develop a tailor-made solution for Ukraine.

Ukraine also needs to identify adequate avenues to provide clear and publicly accessible information on the advantages that an alleged offender may obtain by entering into a non-trial resolution, and, where appropriate and consistent with data protection rules and privacy rights, as applicable, make public elements of non-trial resolutions. These too could be developed based on good practices from the OECD Working Group on Bribery.

10.5. Ukraine must extend incentives for adoption of compliance programmes to public advantages beyond procurement contracts

Access to public contracts can be an important factor to incentivise companies in Ukraine to operate with greater integrity, given the significant share of them involved in public procurement. According to the 2024 survey of 1 200 Ukrainian companies by the Rating Group (commissioned by USAID and UK Dev's Promoting Integrity in the Public Sector Activity (Pro-Integrity)), 38 percent of companies had participated in public procurement in the preceding three years, including 36 percent of small enterprises and 44 percent of medium enterprises.

Ukraine has incentivised companies to adopt anti-corruption compliance programmes by making it a condition for access to large public procurement contracts. However, no similar incentive is currently in place in relation to other public advantages.

Ukraine’s Law on Prevention of Corruption (Article 62) requires companies bidding for public contracts equal or above the threshold of UAH 20 million3 to adopt an anti-corruption programme and to appoint an officer responsible for its implementation. Provisions on mandatory compliance with the anti-corruption programme are to be included in the company’s labour contracts and internal regulations and may also be included in contracts concluded by the legal entity. Further provisions in the law (Articles 63-64) establish the status of a company’s anti-corruption commissioner and the required content of the anti-corruption programme. The NACP has also adopted (through Order No. 794/21 from 10 December 2021) the Model Anti-Corruption Program of a Legal Person which is to serve as a guideline for the legal entities that are required to adopt one. The link between the adoption of an anti-corruption compliance programme and the permission to bid for large public contracts is reiterated in the Law 922-VIII on Public Procurement (Article 17) whereby a company’s lack of an anti-corruption programme and an officer responsible for its implementation is among the grounds for denying it participation in a tender with a value UAH 20 million or more.

Ukraine has therefore made it mandatory for its relevant authorities to consider the adoption by companies of internal anti-corruption compliance programmes in their decisions to grant access to large public contracts. However, the threshold from which this requirement is applied appears too high and many large public contracts are therefore likely to be awarded without this important anti-corruption safeguard in place.

There is a lack of transparency as to how rigorously procuring entities are adhering to the relevant provision in Article 17 of the procurement law. The authorities have not collected the statistics on the number of companies denied participation in public procurement tenders over their failure to adopt an anti-corruption compliance programme. Examination of a company’s compliance with this requirement in the public procurement process appears rather formalistic, with procuring bodies not conducting any kind of verification, not even on a random basis. This was the common view of the participants of the virtual consultations with private sector and civil society representatives, while a 2023 study by CIPE also arrived at a similar conclusion (CIPE, 2023[11]).

The authorities stated that, if a company were to bid for (and win) a large public procurement contract with an anti-corruption compliance programme that did not meet the relevant requirements, this would most likely be detected during a subsequent audit of contract implementation. It is not, however, clear how frequent such audits are, what triggers them, whether any such violations have been detected through audits in practice to date, or what the consequences of having an inadequate programme would be.

No training on anti-corruption programmes in the context of procurement-related decisions has been provided either to the procuring bodies or to companies participating in public procurement.

Recommendation: To ensure that the requirement of the adoption of anti-corruption compliance programmes is not a mere formality, Ukraine must develop an appropriate system of oversight. This could take the form, for example, of random verification of these programmes or the introduction of a certification procedure. Companies could also be asked to fill out a standard questionnaire on their anti-corruption programmes and their practical implementation as part of the process of bidding for public contracts. To assess the effectiveness of the system, it is also advisable to collect statistics of the disqualification from bidding of companies without anti-corruption compliance programmes. Finally, Ukraine must reconsider the current threshold of UAH 20 million from which the requirement of an anti-corruption programme applies to the entities bidding for public contracts to ensure that all large public contracts fall within the scope of this safeguard.

Box 10.3. Verification of compliance programmes in Colombia and France

Colombia: supervisory role of the Superintendency of Corporations

In Colombia, the legal requirement to adopt “corporate ethical programmes” applies to a range of legal entities depending on the geographic scope of their activities, sector of operations, use of third parties and size (measured by income, assets and number of employees). The oversight of compliance with this requirement is assigned to the Superintendency of Corporations which requests companies to certify that they have adopted the programmes and imposes sanctions for non-compliance. The Superintendency can also conduct “preventive inspections” to assess whether compliance programmes are in place and are adequate. Based on the findings of these inspections, it issues orders for improvements and the companies must subsequently report on their implementation.

France: Audits by AFA

The obligation of “compliance” established by French legislation applies to companies with over 500 employees and the annual turnover of more than 100 million euros. The obligation requires existence and implementation of the following measures: i) a code of conduct; ii) an internal whistleblowing system; iii) a risk mapping; iv) procedures for assessing the situation of clients, first and middle-tier suppliers and intermediaries; v) accounting controls; vi) a training system for the most exposed managers and staff; vii) a disciplinary regime; and viii) an internal control and evaluation system.

The French Anti-Corruption Agency monitors compliance of companies with this requirement through its audits which can be launched on ad hoc basis even in the absence of a suspected criminal offence through the decision by the AFA director or a request by certain actors, including accredited NGOs. A company’s failure to implement the above compliance measures can lead to a fine regardless of whether or not a corruption offence has been committed. AFA audits result in reports which contain recommendations for the improvement of compliance measures.

Source: (OECD, 2019[12]) Implementing the OECD Anti-Bribery Convention Phase 3 Report: Colombia and (2021[13]) Implementing the OECD Anti-Bribery Convention Phase 4 Report: France

Beyond public procurement, there are no legal provisions or practical guidelines establishing a similar link between the adoption of an anti-corruption compliance programme and a company’s access to other public advantages such as public subsidies, licences, and officially supported export credits. Neither the representatives of the public authorities, nor those of the private sector and civil society that took part in the virtual consultations could recall any incentives of this type. Ukraine has adopted legal provisions establishing a club of “white-listed businesses” whose members are entitled to certain administrative simplifications and preferences. However, inclusion in this club is not conditional on a company’s adoption of an anti-corruption programme and is, instead, linked to its compliance with the tax legislation.

The results of the 2024 survey of 1 200 active Ukrainian companies by the Rating Group also reflected the limited scope of public incentives that are currently in place in Ukraine: only 10 percent of respondents said that they were aware of any government encouragement and incentives for companies to develop anti-corruption compliance policies and programmes.

According to the authorities, they have discussed with the private sector the idea of “white listing” the companies with appropriate anti-corruption compliance programmes and have decided against it, mainly due the concerns that many companies would view such programmes as a mere formality and that even a small number of cases of companies with inadequate internal controls gaining access to public advantages would undermine the trust in the entire system.

It is, indeed, a reasonable concern that offering preferential treatment to companies with anti-corruption compliance programmes in the decisions to grant public advantages could have negative consequences in the current Ukrainian context where the ability of the authorities to verify the effectiveness of these programmes is limited.

Recommendation: Ukraine should, however, make the adoption of the anti-corruption compliance programmes a mandatory condition for access to the advantages (as is the case with large procurement contracts) without granting the relevant public authorities any discretionary power to give preferential treatment to companies with such programmes.

10.6. Ukraine must address the gaps in the system of debarment from public advantages over corruption-related convictions

Ukrainian legislation provides for mandatory debarment of the companies convicted for corruption from public procurement. There are no similar provisions on debarment from other public advantages.

Ukraine has introduced mandatory administrative debarment from public procurement over convictions for corruption offences. Namely, Article 17 (Part 1, Paragraph 2) of the Law on Public Procurement (Verkhovna Rada, 2016[14]) requires the procuring authorities to disqualify from bidding any legal entity which has been entered into the Unified State Register of Persons that Committed Corruption or Corruption-Related Offences. Moreover, under the same law (Article 17, Part 1, Paragraphs 3 and 6), procuring entities must also reject a bid from a company, if the person representing the company in the procurement procedure has been held liable for a corruption-related offence or the company official who signed the bid has been convicted for a “criminal offence committed for reasons of greed (in particular, related to bribery, fraud and money laundering).” The Unified State Register is an electronic database which is accessible to procuring entities and is also open to the general public, thereby ensuring a very high standard of transparency.

While the system of mandatory administrative debarment applies to public procurement only, the December 2024 amendments to the Criminal Code provide for the possibility of criminal debarment of legal entities (at the discretion of a judge and for a specified period of time) from a wide range of public advantages, including public procurement, licences and permits, state aid, state financial support for export activities, participation in privatisation of public property, lease of state assets, and others.

Three issues with the Ukraine’s current system of administrative debarment could undermine its effectiveness.

First, as noted in the section on the liability of legal persons above, Ukraine does not currently have an established track record of convictions of legal entities for corruption, while the relevant legal regime remains limited even after the most recent legislative amendments. Meanwhile, the provisions on debarment cited above offer a very limited possibility to link debarment of companies with convictions of their key decision-making individuals. Although both natural and legal persons can be included in the Unified State Register, no statistics are available as to how many legal entities have been disqualified from public procurement on this basis. As noted earlier, under the current provisions, the circle of natural persons whose conviction for corruption results in a company’s debarment is very narrow, being limited to the disqualification of the persons who represent procurement participants or sign procurement bids on a company’s behalf. Moreover, under the current arrangements, even if a company were to be convicted for corruption and included in the Unified State Register, its owners and senior officers could continue to enjoy access to public contracts through other companies. The discussions with the public authorities and the representatives of the private sector and the civil society during the virtual consultations confirmed that there is currently no effective safeguard against this in Ukraine.

Second, it is not clear whether the Unified State Register contains all relevant convictions for corruption. In particular, there appears to be no mechanism for verifying that a bidding company has not been convicted for corruption abroad and no procedure for checking bidders against the debarment lists of multilateral development banks.

Finally, the existing administrative debarment from public procurement is not limited in time and the law does not establish a procedure for a company to have it reversed: for example, through remedial action. An overly rigid system of debarment (with no time limit and no possibility of reversal) is likely to undermine the effectiveness of this sanction as an incentive for compliance and even dissuade companies from self-reporting.

Box 10.4. Debarment practices in OECD WGB countries

Linking legal entity’s debarment from public procurement with convictions of natural persons

Several WGB countries have adopted legislation linking the debarment of legal entities from public procurement with criminal convictions of individuals connected to these legal entities. In Lithuania, the Public Procurement Law requires debarment of suppliers convicted for foreign or domestic bribery in the previous five years, including the convictions of the legal entity’s manager, a member of its supervisory body, or a person who has the right to represent or control the legal entity, to make a decision or enter into a transaction on its behalf, or to draw up and sign its financial accounting documents. Similarly, in Luxembourg, debarment of companies extends to the cases when the convicted person is a member of the administrative, management, or supervisory body of the company in question, or has any powers of representation, decision-making, or control within it. Italy’s legislation provides for the debarment of companies from public procurement in the event of corruption convictions against their owners, partners, directors, board members, agents and senior officials.

Duration of debarment and possibility of reversal

In line with the WGB recommendations, many member countries have made debarment from public procurement limited in time, while also allowing for the possibility of its reduction or reversal. The debarment usually remains in force for a specific period of time (e.g. five years in Denmark, Italy, Lithuania) but can have a different term if it is handed down as part of a judgement (e.g. Luxembourg).

In a number of countries, debarment can be avoided or reversed through a set of remedial measures, which usually include a combination of compensation for the damages, co-operation with the law enforcement authorities and implementation of measures to prevent recurrence of the offence (Luxembourg, Denmark, Norway). However, in some countries that take remedial measures into consideration, it is not possible to completely avoid debarment. For example, in Brazil, there is mandatory debarment for a minimum of three years, whereupon it can be lifted if a company implements appropriate compliance measures. In Luxembourg, if a company has been debarred as part of a final court judgement, the sanction cannot be lifted throughout the period established by the sentence.

Sources: (OECD, 2022[15]), Implementing the OECD Anti-Bribery Convention Phase 4 Report: Italy, https://doi.org/10.1787/f94df262-en; (OECD, 2024[16]), Implementing the OECD Anti-Bribery Convention in Luxembourg: Phase 4 Report, https://doi.org/10.1787/c328b3e7-en; (OECD, 2023[17]), Implementing the OECD Anti-Bribery Convention Phase 3 Report: Lithuania, https://doi.org/10.1787/640d636a-en; (OECD, 2023[18]), Implementing the OECD Anti-Bribery Convention Phase 4 Report: Denmark, https://doi.org/10.1787/a36c9917-en; (OECD, 2018[19]), Implementing the OECD Anti-Bribery Convention Phase 4 Report: Norway, https://doi.org/10.1787/25a5d7b8-en; (OECD, 2023[20]), Implementing the OECD Anti-Bribery Convention Phase 4 Report: Brazil, https://doi.org/10.1787/fd55d063-en.

Additionally, while the introduction of discretionary criminal debarment of companies convicted for corruption from the entire spectrum of public advantages is a positive step, the fact that existing mandatory administrative debarment is limited to public procurement leaves extensive possibilities for companies convicted for corruption to obtain still other public advantages.

There is also a lack of clarity regarding the access of the relevant authorities to training and guidance on the application of debarment measures. This may not be particularly problematic currently, as the existing debarment only applies in the context of public procurement and is rather straightforward, as any legal entity from the Unified State Register is automatically disqualified from bidding. Training and guidance will, however, become more important as Ukraine adopts additional provisions expanding the use of debarment from public advantages as a sanction for corruption offences.

Recommendation: To compensate for the currently limited practice of convictions of legal entities, Ukraine can extend the administrative debarment from public procurement to the companies whose owners or key decision-makers have been convicted for corruption. It could further require foreign companies bidding for contracts in Ukraine to present certificates that they have not been convicted for corruption in their respective countries, while requiring the procuring authorities to check the bidders against the debarment lists of multilateral development banks.

Ukraine could also consider revising the current link in the legislation between a legal or natural person’s inclusion in the Unified Register and their debarment from public procurement. As an alternative, debarment could be linked in the law to the existence of a conviction for a corruption offence. The procuring entities would then use the Register as the main (but not necessarily the only) source of verifying the absence of such convictions.

To ensure that debarment does not discourage self-reporting and to incentivise adoption of compliance measures, the debarment must be limited in time and provide for the possibility of its reversal or reduction of its length through remedial action.

To reinforce the effectiveness of debarment as an incentive for compliance, Ukraine should extend the existing administrative debarment from public procurement to other public advantages.

Summary of recommendations

Liability of legal persons for corruption

• Ukraine should implement further changes to its legislative framework on the liability of legal persons to ensure its effective applicability to all corruption offences

• Ukraine should step up the enforcement of corporate liability for corruption offences. The leadership of NABU and SAPO could prioritise cases involving legal persons in their policy documents and internal communications. Ukraine could also develop and provide practical guidance on these types of cases and training to the law enforcement staff  

• With a view to incentivising and rewarding good corporate behaviour, Ukraine should consider introducing due diligence defence in corruption cases and including into its criminal procedure legislation a possibility of taking into account the following mitigating factors for all corruption offences committed by legal persons: 

  • fulsome, timely, and voluntary disclosures to law enforcement authorities of misconduct 

  • timely and appropriate remediation including the implementation or enhancement of an effective ethics and compliance programme  

  • full co-operation with law enforcement authorities including the disclosure of all facts relevant to the wrongdoing at issue 

  • acceptance of responsibility

• Ukraine should extend possibility of plea-bargaining to legal persons in all corruption cases and consider expanding the criteria for plea-bargaining to include the voluntary self-disclosure of misconduct and remediation measures. making them a tool to incentivise businesses to introduce and strengthen internal controls

Incentivising compliance through public advantages

• To ensure that the requirement of the adoption of anti-corruption compliance programmes by companies bidding for public procurement contracts is not a mere formality, Ukraine should develop an appropriate system of verification of these programmes.

• Ukraine should make the adoption of the anti-corruption compliance programmes a mandatory condition for access to other public advantages.

• To compensate for the currently limited practice of convictions of legal entities, Ukraine can extend the administrative debarment from public procurement to the companies whose owners or key decision-makers have been convicted for corruption.

• To ensure that debarment does not discourage self-reporting and to incentivise adoption of compliance measures, the debarment must be limited in time and provide for the possibility of its reversal or reduction of its length through remedial action.

• To reinforce the effectiveness of debarment as an incentive for compliance, Ukraine should extend the existing administrative debarment from public procurement to other public advantages.

References

[11] CIPE (2023), Rebuild with Trust: How Ukraine’s Private Sector Can Strengthen the Integrity of Reconstruction and Combat Corruption, https://www.cipe.org/wp-content/uploads/2023/11/CIPE_Ukraine_Rebuild-with-Trust_2023.pdf.

[10] OECD (2025), Fighting Foreign Bribery webpage, https://www.oecd.org/en/topics/fighting-foreign-bribery.html.

[16] OECD (2024), Implementing the OECD Anti-Bribery Convention in Luxembourg: Phase 4 Report, OECD Publishing, Paris, https://doi.org/10.1787/c328b3e7-en.

[17] OECD (2023), Implementing the OECD Anti-Bribery Convention Phase 3 Report: Lithuania, Implementing the OECD Anti-Bribery Convention, OECD Publishing, Paris, https://doi.org/10.1787/640d636a-en.

[20] OECD (2023), Implementing the OECD Anti-Bribery Convention Phase 4 Report: Brazil, Implementing the OECD Anti-Bribery Convention, OECD Publishing, Paris, https://doi.org/10.1787/fd55d063-en.

[18] OECD (2023), Implementing the OECD Anti-Bribery Convention Phase 4 Report: Denmark, Implementing the OECD Anti-Bribery Convention, OECD Publishing, Paris, https://doi.org/10.1787/a36c9917-en.

[6] OECD (2022), Anti-Corruption Reforms in Ukraine: Pilot 5th Round of Monitoring Under the Istanbul Anti-Corruption Action Plan, OECD Publishing, Paris, https://doi.org/10.1787/b1901b8c-en.

[2] OECD (2022), “Business integrity in Eastern Europe and Central Asia 2022”, OECD Business and Finance Policy Papers, No. 11, OECD Publishing, Paris, https://doi.org/10.1787/1ed3fe17-en.

[15] OECD (2022), Implementing the OECD Anti-Bribery Convention Phase 4 Report: Italy, Implementing the OECD Anti-Bribery Convention, OECD Publishing, Paris, https://doi.org/10.1787/f94df262-en.

[13] OECD (2021), Implementing the OECD Anti-Bribery Convention Phase 4 Report: France, Implementing the OECD Anti-Bribery Convention, OECD Publishing, Paris, https://doi.org/10.1787/2c7d8500-en.

[9] OECD (2021), Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0378.

[1] OECD (2020), Corporate Anti-Corruption Compliance Drivers, Mechanisms, and Ideas for Change, OECD Publishing, Paris, https://doi.org/10.1787/4245d0fc-en.

[12] OECD (2019), Implementing the OECD Anti-Bribery Convention Phase 3 Report: Colombia, Implementing the OECD Anti-Bribery Convention, OECD Publishing, Paris, https://doi.org/10.1787/edb44636-en.

[8] OECD (2019), OECD Business and Finance Outlook 2019: Strengthening Trust in Business, OECD Publishing, Paris, https://doi.org/10.1787/af784794-en.

[3] OECD (2019), Resolving Foreign Bribery Cases with Non-Trial Resolutions: Settlements and Non-Trial Agreements by Parties to the Anti-Bribery Convention, OECD Publishing, Paris, https://doi.org/10.1787/e647b9d1-en.

[19] OECD (2018), Implementing the OECD Anti-Bribery Convention Phase 4 Report: Norway, Implementing the OECD Anti-Bribery Convention, OECD Publishing, Paris, https://doi.org/10.1787/25a5d7b8-en.

[7] OECD (2017), The Detection of Foreign Bribery, OECD Publishing, Paris, https://doi.org/10.1787/8ab65bd4-en.

[14] Verkhovna Rada (2016), Law of Ukraine on Public Procurement 922-VIII, https://zakon.rada.gov.ua/laws/show/922-19/print1453109859715783?lang=en#Text (accessed on 11 April 2025).

[5] Verkhovna Rada of Ukraine (2013), Criminal Procedure Code of Ukraine 4651-VI.

[4] Verkhovna Rada of Ukraine (2001), Criminal Code of Ukraine 2341-III.

Notes

← 1.  80.7% of the respondents whose companies had an anti-corruption compliance programme indicated that avoiding prosecution or other legal action was a “significant” or “very significant” factor in their decision to establish the programme.

← 2.  EUR 7 463 as of 10 September 2024.

← 3.  EUR 439 000 as of 10 September 2024.