IACAlumnus Empowering Professionals
the magazine
Issue XIII, December 2016
The Japanese Anti-Bribery Landscape and Collective Actions Bar Association Guidance and Beyond By Daisuke Takahashi and Shinya Fujino
First Interdisciplinary Corruption Research Forum in Amsterdam By Annika Engelbert and Oksana Huss
The UNCAC Review Mechanism the experience of the Dominican Republic By Wendy Olivero
Welcome Word Dear Alumni, During the third quarter of 2016, IACA successfully conducted a wide range of programmes and tailormade trainings catering to professionals from all parts of the globe. In September the IACA Regional Summer Academy was held in Eastern Africa for the first time. During this programme in Kampala, Uganda, participants from the region had a rich exchange of experiences on international and regional efforts in the fight against corruption. Other recent highlights include the 2016 edition of IACA’s Procurement Anti-Corruption Training, tailor-made trainings for the National Anti-Corruption Commissions of Thailand and Saudi Arabia, and a two-day training for internal investigators from international organizations. This issue of IACAlumnus also has a strong international flavour. Daisuke Takahashi and Shinya Fujino provide an update on the latest anti-bribery developments in Japan and what these mean for Japanese companies - as well as for those doing business with them. Wendy Olivero, a Vienna-based diplomat from the Dominican Republic, shares her personal experience of her country’s involvement in the UNCAC Review Mechanism. Carlos Alberto Pérez Cuevas discusses the damage caused by corruption and points to signs of hope in the fight against it – including in his own country, Mexico. In addition, and following a previous announcement in IACAlumnus XI, Annika Engelbert and Oksana Huss guide us through the First Interdisciplinary Corruption Research Forum in Amsterdam earlier this year. We hope this final IACAlumnus of 2016 will enrich your perspectives, help you in your daily work, and encourage you to contribute to future issues of the magazine. We wish you all a successful end to the year and a great start into 2017. Sincerely, The Alumni Team
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Credits IACAlumnus - the magazine is the alumni magazine of the International Anti-Corruption Academy (IACA), addressing alumni around the world who have participated in and, in general, completed at least one of IACA’s programmes or activities. IACAlumnus - the magazine welcomes contributions by alumni. As a forum to exchange ideas and latest developments, and feature the career paths of our alumni, we seek to provide you with a medium to stay connected. For contributions please contact alumni@iaca.int. IACA reserves the right to select and edit any contribution to suit the publication. We will not consider contributions that have already been published, in any form, in print or online. Editorial Abhishek Bharti, Elisabeth Neckel, Mariana A. Rissetto Design Adrian Ciupagea Photographs IACA, Interdisciplinary Corruption Research Network, iStock.com
front cover; back cover Ensō circle; Laxenburg - aerial view
Publisher International Anti-Corruption Academy (IACA) Muenchendorfer Strasse 2 2361 Laxenburg, Vienna AUSTRIA +43 (0)2236 710 718 100 www.iaca.int alumni@iaca.int
Print Federal Ministry of Defence and Sports/Armed Forces Printing Centre, Vienna, Austria.
Waiver IACA promotes academic freedom. The contents of this magazine reflect the opinions of the contributors and do not necessarily represent the views or official position of IACA. Neither IACA nor its staff members or partners shall be liable for any inaccuracy, incompleteness, unavailability or error of the information provided. editorial date: 19 December 2016
International Anti-Corruption Academy
Issue Xiii, december 2016
CONTENTS
december 2016
04
06
IACA Alumni Mapping
The Japanese Anti-Bribery Landscape and Collective Actions - Bar Association Guidance and Beyond By Daisuke Takahashi and Shinya Fujino
12
16
The UNCAC Review Mechanism - the experience of the Dominican Republic
Making Progress in the Fight against Corruption - the Case of Mexico
By Wendy Olivero
By Carlos Alberto PĂŠrez Cuevas
18
22
First Interdisciplinary Corruption Research Forum in Amsterdam
CrossWord
By Annika Engelbert and Oksana Huss
By Alumni Team
24 Upcoming Events
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Greenland (Denmark)
UNITED STATES OF AMERICA
CANADA
IACA Alumni Mapping
UNITED STATES OF AMERICA BERMUDA
MEXICO
BAHAMAS TURKS AND CAICOS ISLANDS
CUBA CAYMAN ISLANDS
HAITI
JAMAICA
BELIZE
DOMINICAN REPUBLIC
GUATEMALA
BRITISH VIRGIN ISLANDS SINT MAARTEN ANTIGUA AND BARBUDA
SAINT KITTS AND NEVIS MONTSERRAT
HONDURAS EL SALVADOR
NICARAGUA
CURAÇAO
CABO VERDE
DOMINICA
SAINT LUCIA SAINT VINCENT AND BARBADOS THE GRENADINES GRENADA TRINIDAD AND TOBAGO
COSTA RICA
PANAMA
VENEZUELA
GUYANA SURINAME
COLOMBIA
French Guiana (FRA)
KIRIBATI
ECUADOR
BRAZIL
PERU
BOLIVIA
Status as of 8 december 2016 PARAGUAY
The boundaries and names shown and the designations used on this map do not imply any official endorsement or acceptance by the International Anti-Corruption Academy (IACA). No official endorsement or acceptance is implied with regard to the legal status of any country, territory, city, or any area or its authorities, or with regard to the delimitation of frontiers or boundaries. This map was produced to the best of common knowledge.
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01. 02. 03. 04. 05. 06. 07. 08. 09. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.
Afghanistan Albania Algeria Angola Antigua and Barbuda Argentina Armenia Australia Austria Azerbaijan Bahrain Bangladesh Barbados Belarus Belgium Benin Bermuda Bhutan Bosnia and Herzegovina Botswana
21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40.
URUGUAY
ARGENTINA CHILE
Brazil 41. Egypt 60. Indonesia British Virgin Islands 42. El Salvador 61. Iraq Bulgaria 43. Estonia 62. Ireland The boundaries and names shown and the designations used on this map do not imply any official endorsement or acceptance by the International Anti-Corruption Aca Burkina Faso 44. Ethiopia 63. Islamic Republic of Iran Burundi 45. Fiji 64. Israel Cambodia 46. Finland 65. Italy Cameroon 47. France 66. Japan Canada 48. Gambia 67. Jordan Cayman Islands 49. Georgia 68. Kazakhstan Chile 50. Germany 69. Kenya China 51. Ghana 70. Kosovo Colombia 52. Greece 71. Kuwait Congo 53. Grenada 72. Kyrgyzstan Costa Rica 54. Guatemala 73. Latvia Côte d’Ivoire 55. Guinea 74. Lebanon Cyprus 56. Haiti 75. Lesotho Czech Republic 57. Honduras 76. Liberia Democratic Republic of the Congo 58. Hungary 77. Libya Denmark 59. India 78. Lithuania Dominican Republic 79. Luxembourg
International Anti-Corruption Academy
Issue Xiii, december 2016
ICELAND
RUSSIAN FEDERATION
FINLAND
SWEDEN NORWAY
ESTONIA
RUSSIAN FEDERATION
LATVIA DENMARK
LITHUANIA RUS. FED.
BELARUS
POLAND
UNITED KINGDOM
IRELAND
NETHERLANDS
GERMANY
BELGIUM LUXEMBOURG
UKRAINE
CZECH REPUBLIC SLOVAKIA
FRANCE
SLOVENIA
HUNGARY
BOSNIA AND HERZEGOVINA
ITALY
ANDORRA
SERBIA
MONTENEGRO
BULGARIA
Kosovo
ARMENIA
ALBANIA
SPAIN
UZBEKISTAN
GEORGIA
F. Y. R. OF MACEDONIA
HOLY SEE
PORTUGAL
MONGOLIA
ROMANIA
CROATIA
SAN MARINO
MONACO
KAZAKHSTAN
REP. OF MOLDOVA
AUSTRIA
LIECHTENSTEIN
SWITZERLAND
KYRGYZSTAN AZERBAIJAN
GREECE
TURKMENISTAN
TURKEY
MALTA
ISLAMIC REPUBLIC OF IRAN
LEBANON ISRAEL JORDAN
MOROCCO
IRAQ
AFGHANISTAN
JORDAN KUWAIT
ALGERIA
LIBYA
EGYPT
PAKISTAN
NEPAL BHUTAN
BAHRAIN
INDIA
QATAR
Western Sahara
SAUDI ARABIA
UNITED ARAB EMIRATES
OMAN
MALI
CHAD
SIERRA LEONE LIBERIA
PHILIPPINES
CAMBODIA
DJIBOUTI
BENIN
CÔTE D'IVOIRE
THAILAND
YEMEN
ERITREA
SUDAN
BURKINA FASO
GUINEA
Taiwan
VIET NAM LAO PEOPLE'S DEM. REP.
NIGER
SENEGAL
GUINEA-BISSAU
BANGLADESH
MYANMAR
MAURITANIA
GAMBIA
JAPAN
REP. OF KOREA
CHINA
SYRIAN ARAB REPUBLIC
CYPRUS
TUNISIA
DEM. PEOPLE'S REP. OF KOREA
TAJIKISTAN
FEDERATED STATES OF MICRONESIA
NIGERIA
GHANA TOGO
CAMEROON
SOUTH SUDAN
CENTRAL AFRICAN REPUBLIC
SRI LANKA
MALDIVES
BRUNEI DARUSSALAM MALAYSIA
SOMALIA EQUATORIAL GUINEA SAO TOME AND PRINCIPE
UGANDA
GABON
MARSHALL ISLANDS
PALAU
ETHIOPIA
SINGAPORE
KENYA
CONGO DEMOCRATIC REPUBLIC OF THE CONGO
MALAYSIA
INDONESIA
NAURU
INDONESIA
RWANDA
KIRIBATI
INDONESIA BURUNDI
INDONESIA
UNITED REP. OF TANZANIA
PAPUA NEW GUINEA
SEYCHELLES INDONESIA
TIMOR-LESTE
ANGOLA
SOLOMON ISLANDS
COMOROS
MALAWI
ZAMBIA
TUVALU
SAMOA
MOZAMBIQUE VANUATU
FIJI
MADAGASCAR
ZIMBABWE NAMIBIA
MAURITIUS
BOTSWANA
TONGA
AUSTRALIA SWAZILAND LESOTHO
SOUTH AFRICA
NEW ZEALAND
80. Madagascar 99. Pakistan 119. Slovakia 138. Turks and Caicos Islands IACA Alumni Mapping by Country as of 8 December 2016 81. StatusMalawi 100. Panama 120. Solomon Islands 139. Uganda 82. Malaysia 101. Papua New Guinea 121. Somalia 140. Ukraine ademy (IACA). No official endorsement or acceptance is implied with regard to the legal status of any country, territory, city, or any area or its authorities, or with regard to the delimitation of frontiers or boundaries. This map was produced to the best of common knowledge. © IACA 83. Malta 102. Paraguay 122. South Africa 141. United Arab Emirates 84. Mauritius 103. Peru 123. South Sudan 142. United Kingdom 85. Mexico 104. Philippines 124. Spain 143. United Republic of Tanzania 86. Mongolia 105. Poland 125. Sudan 144. United States of America 87. Monserrat 106. Portugal 126. Swaziland 145. Uruguay 88. Morocco 107. Republic of Korea 127. Sweden 146. Uzbekistan 89. Mozambique 108. Republic of Moldova 128. Switzerland 147. Venezuela 90. Myanmar 109. Romania 129. Syrian Arab Republic 148. Viet Nam 91. Namibia 110. Russian Federation 130. Tajikistan 149. Yemen 92. Nepal 111. Rwanda 131. Thailand 150. Zambia 93. Netherlands 112. Saint Kitts and Nevis 132. The former Yugoslav 151. Zimbabwe 94. New Zealand 113. Saudi Arabia Republic of Macedonia 95. Niger 114. Senegal 133. Timor-Leste 96. Nigeria 115. Serbia 134. Togo 97. Norway 116. Seychelles 135. Trinidad and Tobago 98. Oman 117. Sierra Leone 136. Tunisia 118. Singapore 137. Turkey
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The Japanese Anti-Bribery Landscape and Collective Actions Bar Association Guidance and Beyond
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International Anti-Corruption Academy
Issue Xiii, december 2016
B y Daisuke Takahashi and Shinya Fujino
Overview of Japanese foreign bribery regulations Japanese foreign bribery regulations have been implemented based on the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention). Japan signed the OECD Convention in 1997 and enacted its implementing legislation in the form of amendments to the Unfair Competition Prevention Law (UCPL) in 1998, which came into force in 1999. Article 18(1) of the UCPL criminalizes bribery of foreign public officials. Article 21(2) (vii) penalizes a person who has committed foreign bribery with imprisonment or a fine. Article 22 imposes criminal liability also on a corporation where a representative, agent, employee, or any other staff of the corporation has committed a violation in connection with an operation of the corporation. As a commentary to the Japanese anti-bribery regulations under the UCPL, the Ministry of Economic Trade and Industry (METI) published the Guidelines for the Prevention of Bribery of Foreign Public Officials (METI Guidelines).1
Increasing risk of enforcement of Japanese foreign bribery regulations Previously, Japanese foreign bribery regulations were not actively enforced. As of October 2016, only four bribery cases had been prosecuted under the UCPL. The OECD’s Working Group on Bribery (WGB) repeatedly criticized the Japanese government for the low level of enforcement. However, several recent changes related to Japanese foreign bribery regulations could greatly increase the possibility of enforcement actions under the UCPL and raise expectations for Japanese corporations to strengthen internal control systems for managing bribery risks (see Table 1).
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Table 1: Recent anti-bribery regulatory developments
Directive issued by National Police Agency (NPA)
Date
Content
April 2014
The Criminal Investigation Bureau of the NPA gave formal notices to each prefectural police department requesting them to appoint personnel who would take charge of foreign bribery issues in order to ensure appropriate execution.
Amendment to the ODA 2 rules October 2014
The Ministry of Foreign Affairs (MOFA) of Japan and the Japan International Cooperation Agency (JICA) revised the rules on measures against companies engaged in bribery in connection with ODA projects by extending the period of the suspension from bidding.
Amendment to the METI Guidelines
July 2015
The METI revised the METI Guidelines. In particular, the revised version clarifies strengthened internal control systems for Japanese corporations to manage bribery risks.
Introduction of plea bargaining systems in criminal procedures
May 2016
The Japanese Diet amended the Code of Criminal Procedure to introduce a plea bargaining system. This may create an incentive to report bribery violations committed by others.
Comments and recommendations by the OECD’s WGB
June 2016
The OECD’s WGB visited high-level Japanese representatives from the METI, NPA, MOFA, Ministry of Justice, and National Tax Agency to discuss current problems in Japanese anti-bribery policy.
Global bribery risks faced by Japanese multinational corporations Japanese multinational corporations face significant global regulatory risks and are directly or indirectly subject to bribery regulations under multiple jurisdictions. Several, including JGC, Marubeni, Bridgestone, and Olympus, have been heavily penalized by US authorities through extraterritorial applications of the US Foreign Corrupt Practices Act (FCPA). In addition, Japanese companies have increasingly been asked by their Western client/partner firms to comply with the FCPA and the UK Bribery Act (UKBA) and to strengthen anti-bribery compliance programmes. The US and UK antibribery regulations have recently required companies to conduct due diligence against their business counterparts more prudently. Many firms have integrated anti-corruption clauses3 into their business contracts. Once a company’s involvement with bribery is exposed, it might lose its clients and partners and will be held liable for damages.
Publication of Bar Association guidance as a collective action As a result of the Japanese and global regulatory developments described above, bribery risks faced by Japanese corporations have been rapidly increasing. Unless these risks are well managed, they may have a significant negative impact on corporate values, both financial and reputational.
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With this in mind, the Japan Federation of Bar Associations (JFBA) published the “Guidance on Prevention of Foreign International Anti-Corruption Academy
Bribery” (JFBA Guide) in July 2016.4 It is a practical guide for Japanese corporations and attorneys to establish adequate systems of internal controls for managing foreign bribery risks. The JFBA Guide aims to supplement the amended METI Guidelines.5 It is rare that national bar associations publish anti-bribery guides for corporations to supplement governmental guidelines. The main reason why the JFBA published this guide is to fill the gap between Japanese anti-bribery regulations and global anti-bribery practice as well as the gap between regulations and practices. The METI Guidelines address compliance issues only for Japanese anti-bribery regulations, and in an abstract manner. The JFBA Guide aims to provide Japanese corporations with more practical guidance for managing global bribery risks caused by multijurisdictional regulations. In addition, the JFBA Guide aims to define elements of internal control systems, which corporate directors are required to establish under the Japanese Companies Act, in relation to foreign bribery prevention.
The development and structure of the JFBA Guide The JFBA Guide is a product of a collective action initiative. It was drafted by Japanese attorneys specialized in anti-bribery practices with the support of researchers focusing on anticorruption issues. The guide was finalized in consultation with various key organizations, including the METI, JICA, the Japan External Trade Organization (JETRO), the Institute of Developing Economies (IDE), and many Japanese
Issue Xiii, december 2016
Daisuke TAKAHASHI Attorney at Law of Japan, Partner, Shinwa Sohgoh Law Offices Vice Chair, CSR Project Team, Japan Federation of Bar Associations takahashi@shinwa-law.jp
Da isuk e TAKAHASHI
Daisuke TAKAHASHI is a partner attorney at Shinwa Sohgoh Law Offices, based in Tokyo, Japan. He has been advising Japanese multinational corporations on global legal and regulatory issues, including anti-bribery compliance. As Vice Chair of CSR Project Team of Japan Federation of Bar Associations (JFBA), Daisuke was involved in drafting JFBA’s Guidance on Prevention of Foreign Bribery and Guidance on Human Rights Due Diligence. He also serves as Invited Researcher at Waseda University, Lecturer at the Faculty of Law of Sophia University, and Co-researcher at Institute of Developing Economies (IDE-JETRO). Daisuke obtained triple degrees of European Master in Law and Economics sponsored by the European Commission and a Master of Laws in International
Dr. Shinya Fujino completed his Bachelor of Economics and Master of Business Administration from Kyoto University, and received a PhD in management from Reitaku University. For his doctoral thesis, he examined the reasons Japanese corporations do not construct effective internal control systems to prevent foreign corrupt practices. He is currently a research fellow at Reitaku University Business Ethics and Compliance Research Center (R-BEC), and serves as a lecturer of business ethics and accounting at both Reitaku University and Bunkyo University. He has written many papers in the field of global compliance, focusing on various issues such as foreign public officials bribery.
Shin ya FUJINO
Shinya FUJINO Ph. D, Research Fellow Reitaku University Business Ethics and Compliance Research Center sfujino@reitaku-u.ac.jp
Law from the Fletcher School of Law and Diplomacy.
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multinational corporations belonging to the Global Compact Network Japan (GCNJ).
framework for handling the situation, and collective action with relevant organizations.
The JFBA Guide consists of 4 chapters and 18 articles as described in Table 2.
(2) Crisis management for when bribery involvement is detected
Most of the JFBA Guide is in line with existing guidelines, including the US Resource Guide to the FCPA and the UKBA Guide as well as the METI Guidelines. However, the JFBA Guide uniquely addresses crisis management and disclosure issues on foreign bribery prevention as follows:
The guide also considers it to be an emergency situation when offering, promising, or paying bribes to foreign public officials is detected within companies. As effective measures against it, the guide lists preservation of evidence, establishment of internal investigation teams, and timely and prompt reporting of its results to top management.
(1) Crisis management for unreasonable demands for bribes
(3) Disclosure
The guide considers the case where a company faces racketeering of bribery payments by foreign public officials to be an emergency situation. The guide emphasizes training in how to reject the demand, having an organizational
The guide emphasizes the importance of disclosure concerning foreign bribery issues in both the prevention and detection phases. It recommends that companies explain the status of foreign bribery prevention in various disclosure
Table 2: Structure of the JFBA Guide Introduction
Chapter 2 Response in an emergency situation (crisis management)
Chapter 1 Implementation of anti-bribery compliance program
Article 10 Definition of ”an emergency situation”
Article 1 Top management‘s message and actions
Article 11 Crisis management in the event that the company receives an unreasonable demand for a bribe from a foreign public official or other similar person
Article 2 Risk-based approach Article 3 Establishment of a fundamental policy and internal rules Article 4 Organizational structure Article 5 Managing third parties Article 6 Training
Article 12 Crisis management where the company has become aware that a bribe has been given, offered, or promised to a foreign public official or other similar person (including a situation where it has become aware of such a possibility) Article 13 Crisis management framework Article 14 Record-keeping Chapter 3 Subsidiary management and merger & acquisition
Article 7 Monitoring and continuous improvement
Article 15 Parents‘ assistance to subsidiaries in relation to their anti-bribery compliance programs
Article 8 Facilitation payments
Article 16 Merger & acquisition
Article 9 Record-keeping
Chapter 4 Miscellaneous Article 17 Disclosure of information Article 18 Declaration of implementation of this Guidance
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International Anti-Corruption Academy
Issue Xiii, december 2016
documents including its annual report, corporate governance report, and CSR reports. The guide also recommends that when a foreign bribery issue that may have a significant impact on a company’s financial value or reputation is revealed, a company should report its details in the above documents.
The Anti-Bribery Committee of Japan: Collective action beyond the Bar Association Guide Although the JFBA Guide is expected to strongly support Japanese corporations in fighting foreign bribery, they may still face challenges. These include limited access to information on bribery risks in emerging countries, limited capacity to establish an effective internal control system, and lack of leverage and negotiating power to reject demands for bribes from foreign government officials. To overcome these challenges, companies, organizations, and experts need to consider taking further collective action initiatives. We should note, however, that the collective action should not be led by a company that is a new entrant to the initiative, since this firm might not have the required skills and bargaining power in a challenging environment. A neutral third party or a civil society organization should be involved in promoting the collective action initiative to ensure fairness and reduce the likelihood of competition among the member companies.6 In Japan, companies, governments, and lawyers have taken successful collective actions to reject domestic racketeering to businesses from the Yakuza criminal syndicates. By contrast, collective action on foreign bribery issues is still under development. Therefore, the lawyers and researchers who took the lead in drafting the JFBA Guide are determined to organize the AntiBribery Committee of Japan (ABCJ)7 in order to facilitate collective action through promotion and further development of the guide. The ABCJ will conduct practical research on foreign bribery risks and other global risks and act as an information centre on anti-corruption practices in Japan. In addition, it aims to serve as a platform to encourage relevant companies, organizations, and experts to take collective actions against corruption.
endnotes http://www.meti.go.jp/policy/external_economy/zouwai/ pdf/ GuidelinesforthePreventionofBriberyofForeignPublicOfficials. pdf 1
2
Official Development Aid
http://www.nichibenren.or.jp/en/document/ opinionpapers/20160715.html
3
http://www.nichibenren.or.jp/activity/document/opinion/ year/2016/160715.html
4
Takahashi, D. (2016). Nichibenren Kagaizowaiboshi Guidance no Kaisetsu: Joron (Commentary to JFBA Guidance Introduction) New Business Law, pp14-21.
5
World Bank. Fighting Corruption through Collective Action: A guide for business, 2008. p.25. http://www. grantthornton.ca/resources/Guides/Forensics/Collective%20 action%20guide.pdf
6
Reitaku University Business Ethics and Compliance Research Center (R-BEC) serves as the Secretariat of the Council. Mr. Fujino and Mr. Takahashi are in charge of administration of the Council. 7
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The UNCAC Review Mechanism the experience of the Dominican Republic by Wendy O livero
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International Anti-Corruption Academy
Issue Xiii, december 2016
For the last 20 years I have been working in the field of international relations representing the Government of the Dominican Republic at national, regional, and international level. During this time, I have accumulated broad experience of complex issues that affect our countries and societies. One particular issue that has held my interest is the challenge posed by corruption and how governments can strengthen their capacities to prevent and combat it.
I am the Alternate Representative of the Dominican Republic to the International Organizations based in Vienna, responsible for coordinating my country’s work with the United Nations Office on Drugs and Crime (UNODC). In this capacity I have contributed directly to the effective implementation of the United Nations Convention against Corruption (UNCAC) through the provision of policy guidance and technical advice to the authorities of the Dominican Republic on normative processes and the fulfilment of their international obligations in this field.
The Dominican Republic and the UNCAC
Pilot Review Programme
Further to the ratification of the Inter-American Convention against Corruption, the Dominican Republic ratified the UNCAC in 2006 as part of the government’s efforts to fight against this phenomenon.
Before the Review Mechanism for UNCAC implementation was established, the Government of the Dominican Republic voluntarily participated in the Pilot Review Programme conducted in 2009, when Mexico and Norway acted as reviewing countries. Based on the findings of this review process a number of recommendations were compiled in a country report and specific technical assistance needs identified. During this process, the support of the Secretariat staff assigned to the country review served as a key element.
The institutional anti-corruption framework in the Dominican Republic mainly comprises the Office of the AttorneyGeneral, the General Directorate for Government Ethics and Integrity (DIGEIG), the Office of the Comptroller-General of the Republic, the Court of Accounts, the Superintendence of Banks, and the Financial Analysis Unit. The DIGEIG is the designated authority responsible for following up the implementation of the UNCAC and the development of anticorruption policies. As per the Constitution of the Dominican Republic, international treaties and agreements are placed above the domestic legal order. In 2010, a constitutional reform was introduced which for the first time explicitly established the proscription of corruption, including procedural privileges to facilitate the prosecution of corruption. Under the same order, the Congress of the Dominican Republic can introduce a reform of the Penal Code which includes new criminal offences of corruption. Together with other legislation in force and the necessary political will, this constitutes an adequate legal framework to fight corruption.
Review Mechanism – 1 st Cycle During the first review cycle of the UNCAC Review Mechanism, the Dominican Republic was scheduled to be reviewed by governmental experts from Nicaragua and Uruguay in the first year. As a reviewing country, governmental experts of the Dominican Republic took part in the evaluation of Mozambique and Honduras, as a way to support the mechanism. The Permanent Mission in Vienna coordinated with the Secretariat staff and assisted the national authorities in the following activities: appointment of a focal point, organization of the initial teleconference, completion of the self-assessment checklist, active dialogue between the experts, joint meetings in Vienna, and the preparation of the country review report. In addition, part of my role was and is to participate in the sessions of the Implementation Review
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W endy Oli v ero
Wendy Olivero (Dominican Republic) has been serving as Minister Counsellor and Alternate Representative of the Embassy and Permanent Mission of the Dominican Republic in Austria since 2007. She is responsible for her country’s relations with the international organizations based in Vienna, and coordinates her country’s work with UNODC, UNIDO, IAEA, CTBTO, and IACA. Prior to that, she held positions at her country’s diplomatic representations to France and Canada. Wendy holds a Master’s Degree in International Relations from the Universidad Catolica Santo Domingo and a degree in Computing and Systems Engineering from Pontificia Universidad Catolica Madre y Maestra. She attended the IACA Summer Academy in 2012.
Group and ensure that Dominican official positions are considered in the multilateral arena on various related topics. In order to enhance the full and effective implementation of Chapters III and IV of the Convention, the Government of the Dominican Republic, under the coordination of the DIGEIG, has received technical assistance with the support of the UNODC Regional Office in Panama. The aim is to follow up and monitor the implementation of the measures and the public policies required to put the recommendations and observations in the country review report into practice, as well as to set the guidelines for future measures to allow for progress in different aspects of the review. This is on the understanding that the Review Mechanism methodology is the most effective way to assess the status of the implementation of the UNCAC.
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In this regard, three workshops were organized in September 2015, November 2015, and March 2016 with the participation of multiple relevant institutions including, among others, the Foreign Affairs Ministry, the Office of the Attorney-General, the Office of the Comptroller-General, National Police, International Anti-Corruption Academy
Congress, the Institute of Public Administration, and civil society organizations. The objectives of the workshops were (1) to monitor the implementation of those recommendations related to Chapters III and IV, (2) to create awareness of the need to conclude an action plan for effective implementation of the outstanding recommendations, and (3) to start the self-assessment of Chapter II on Prevention in preparation for the second cycle. The workshops were divided into different round tables to analyze pertinent information by articles and concluded with the presentation of a summary of the discussions. Recently the Government has introduced a number of implementation measures. These include the development of a major legislative reform covering rules on the prevention, control, and punishment of corruption, transparency, access to public information, and accountability, as well as regulations on public procurement, access to public functions, regimes of incompatibilities,1 and conflicts of interest, among others. There are ongoing legislative efforts to adopt norms on non-conviction-based asset forfeiture and to strengthen the anti-money-laundering legislative framework.
Issue Xiii, december 2016
Review Mechanism – 2 nd Cycle In preparation for the second UNCAC review cycle, the above-mentioned workshops served as a basis to start the drafting of the self-assessment report for Chapters II and V, with the active participation of relevant institutions linked to the prevention of corruption and asset recovery. Good practices and lessons learned from previous experience underline the importance of the continuity of the technical assistance provided by UNODC to the States Parties of the Convention during the review process.
endnotes This refers to an ongoing reform of the system of incompatibility in public functions. Based on the principle of impartiality, this reform stipulates that officials must not perform two jobs that can benefit them simultaneously. Another aspect of the system is to regulate participation in bidding in the public sector.
1
The Dominican Republic will be under review in the third year of the second review cycle in 2018. However, the preparation in advance of the self-assessment report will allow the country to identify the gaps and implement lessons learned already at this stage.
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Corruption is spreading throughout the world. Scandals related to economic malfeasance, the diversion of public funding, and money-laundering are on the increase. There are large networks and criminal structures dedicated to corrupting people and institutions and no corner of the globe has been able to escape this cancer. It affects public and private companies, governments, and civil, political, and sporting associations, both in highly developed countries and less developed ones. But there are signs of hope in the fight against corruption - including in my own country, Mexico.
Making Progress in the Fight against Corruption The Case of Mexico
by C arlos A lb er to Pérez Cuevas
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Defining the problem
Steps towards success
Complex problems need definitions and specific concepts to standardize actions for optimum results. Since there is no universal definition of corruption that encompasses and explains the whole phenomenon and its diverse offences, it is very difficult to find a comprehensive manual describing various facets of the problem. Nonetheless, a firm commitment is enshrined in the text of the United Nations Convention against Corruption (UNCAC) for the Parties to the Convention.
Many countries have laws, procedures, and systems aimed at fighting corruption. Some of these have yielded positive results - as in Denmark, where the creation of a unique business registration system has enabled the authorities to fight money-laundering more effectively. Another example is Romania’s National Anti-corruption Directorate (DNA), which was created in 2002 and is in charge of investigating and prosecuting corruption-related offences. There are also success stories from Latin America, such as Chile’s efficient system of transparency, accountability, and access to public information. Unfortunately, other countries have made less progress or have even taken serious backward steps in fighting corruption owing to strong political and economic opposition.
In this context, States Parties, together with experts and nongovernmental organizations, analyze, discuss, and provide ideas to create the best mechanisms, institutions, and practices to fight corruption effectively and efficiently and to root out impunity in a coordinated way. It has been possible to consolidate criteria into the chapters of Preventive Measures, Criminalization and Law Enforcement, International Cooperation, Asset Recovery, and Technical Assistance.1 Every two years more than 180 governments come together at the Conference of the States Parties to the UNCAC. At the most recent meeting, in St. Petersburg, Russian Federation, in November 2015, I had the opportunity to be part of the delegation of the Global Organization of Parliamentarians Against Corruption (GOPAC), to witness the major undertakings and actions implemented in the world’s fight against corruption. International Anti-Corruption Academy
Hope in Mexico In Mexico hopes have been raised by the recent creation of an unprecedented National Anti-Corruption System (NAS), something that had long been demanded by large sections of the public as a way to tackle the country’s serious corruption problem. Having started out in 2012 as a bill introduced by the President of the United States of Mexico, H.E. Mr. Pena Nieto, to create a National Anti-Corruption Commission, the bill was finally approved and adopted in a significantly modified form in July 2016.
Issue Xiii, december 2016
C a rlos Alberto PĂŠre z Cue va s
Carlos Alberto PĂŠrez Cuevas (Mexico) is a lawyer who specializes in Constitutional Law and Anti-Corruption. He was a national parliamentarian from 2009 to 2012. He currently serves as a Member of the Board of Directors of the Global Organization of Parliamentarians Against Corruption (GOPAC) and the Chairman of its chapter in Mexico. He participated in the first IACA Regional Summer Academy in Latin America in November 2015.
The initial proposal of 2012 was not discussed further until the end of 2014 and was eventually rejected. Among other things, this reflected opposition in civil society to creating a top-down commission in light of the number of state and federal entities in Mexico. In 2015 civil society organizations led a drive to call for the creation of a National AntiCorruption System instead of a national commission. Rather than a top-down commission as initially proposed, the NAS would have a mandate to coordinate and streamline the anti-corruption efforts of existing entities. And in another contrast to the proposed commission, the NAS also foresees the creation of sanctions for private contractors implicated in corrupt practices. In the final law, public officials are required to disclose their assets, interests, and tax compliance statements. All in all a great achievement for Civil Society organizations.
of public resources and the actions of public officials, legal research, and prosecution systems that sanction perpetrators and contribute to rooting out impunity are also critical. In order to eradicate this cancer, it is necessary to involve public and private entities, civil society, academia, and business associations as well as non-governmental organizations and the general public. Only then will corrupt practices be controlled and rooted out.
This relatively new law is still being implemented and there is a long way to go. Nonetheless, the first steps have been taken following pressure and activism from civil society organizations that were able to generate collective action and continue to gain ground.
The ongoing fight against corruption
endnotes https://www.unodc.org/unodc /es/treaties/CAC / Accessed 14 October 2016.
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It is important to be aware of the serious nature of the corruption problem, its vast dimensions, and dire consequences. Committed to accountability and the fight against corruption, we must work in a constantly coordinated way and move towards creating new, innovative models. Control and vigilance systems that monitor the management
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Conference Corner
IACA is always keen to learn about interesting conferences you have attended, or organized yourself, to facilitate knowledge sharing and enlarge existing networks. We look forward to hearing from you!
First Interdisciplinary
Corruption
Research Forum in Amsterdam
by A nnika Engelb er t and O k s ana Huss
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As members of the network of young researchers on anticorruption in Germany (KorrWiss), IACA alumnae Oksana Huss (Summer Academy 2015) and Annika Engelbert (Summer Academy 2014) helped to organize the first Interdisciplinary Forum on “How to Research Corruption”, which took place on 17 and 18 June 2016 in Amsterdam. With its emphasis on methods for researching corruption, the forum aimed to give junior researchers the chance to exchange ideas, explore new paths, and discuss opportunities and challenges in studying the complexities of corruption. International Anti-Corruption Academy
Oksana and Annika co-organized the forum together with Nils Köbis and Corinna Martin from Vrije Universiteit (VU) Amsterdam, and Anna Schwickerath (University of Düsseldorf). It was held in cooperation with the VU Amsterdam’s Department of Experimental and Applied Psychology and was funded by the Dutch Science Foundation (NWO). The forum brought together 50 participants from 26 countries and various disciplinary backgrounds, among them
Issue Xiii, december 2016
Annika Engelbert holds a Post-Doc position at the Ruhr University Bochum, Germany, working at the intersection of law and social sciences on human rights and administrative law issues in developing countries. She currently researches rights-based approaches to social health protection in Ghana and Indonesia. Her PhD research project at the Institute of Development Research and Development Policy focused on public procurement law and anticorruption in Sub-Saharan Africa. Previously, Annika has worked for the German International Cooperation in Brussels in various governance development projects financed by the European Commission. She is a founding member of the Interdisciplinary Corruption Research Network. Annika attended the Summer Academy 2014.
Oksana Huss is a PhD candidate of political science at the Institute for Development and Peace, University of Duisburg-Essen (Germany) and KWI Fellow of the Program for Young researchers. Her research focus is on political corruption in hybrid regimes. Oksana has a teaching- and research affiliation with the AntiCorruption Research and Education Centre (ACREC) in Ukraine. She is a founding member of the International Corruption Research Network and co-administrator of the KorrWiss Network for interdisciplinary corruption research in Germany. Oksana attended the Summer Academy 2015.
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five other IACA alumni. As a mix of traditional conference and interactive workshops, the event featured keynote speeches and presentations on individual research projects, as well as working groups tackling specific research problems regarding corruption. Participants gave introductory presentations of qualitative, quantitative, and experimental approaches pertinent to their research questions, and discussed these methodological choices in small working groups. During the second day, the workshops focused on research puzzles and concrete questions, aiming to find appropriate methods to address them. In addition, established professors and experts offered valuable insights into their work: Shaul Shalvi (University of Amsterdam) presented a behavioural ethics approach to researching corruption, while Nikos Passas (Basel Institute on Governance) and Bo Rothstein (University of Oxford) focused on anticorruption research and its potential leverage and shortcomings. Dieter Zinnbauer, Senior Programme Manager for Emerging Policy Issues at Transparency International, added a practitioner’s perspective to the question of which topics in the area of corruption need to be more thoroughly researched. Besides group work and presentations, the forum offered ample time for stimulating discussions among the participants over coffee and lunch. After the first day we all enjoyed a well-deserved city walk in sunny Amsterdam, delicious food in a hip market hall, and some dancing afterwards. Due to the great success of the conference, the concluding workshop on the future of the forum called for a continuation of the experience: the next Interdisciplinary Corruption Research Forum will be held on 15 and 16 June 2017 in Paris. For more information, young researchers are very welcome to contact the authors at: info@icrnetwork.org.
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International Anti-Corruption Academy
Issue Xiii, december 2016
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cross word
4. 1. 2.
7. 3.
10.
6.
8.
9.
Guidelines 1. IACAlumnus Crosswords are open to members of the IACA Alumni Association. 2. The minimum word length is three letters. 3. 1. No individual IACAlumnus Crosswords will contain the same answer twice. 4. IACAlumnus Crosswords are thematic. 2. Emphasis is given to anti-corruption/ corruption, and compliance-related vocabulary. 5. Together with the last issue of the IACAlumnus magazine in a calendar year, 10.from all the a final word will be7.formed letters positioned in the grey cells of Crosswords in that 3. previous IACAlumnus 6. year. 6. To be considered for the IACAlumnus Crossword Award, alumni should send a picture of the last IACAlumnus Crossword containing the final word 8. 9. to alumni@iaca.int no later than 18:00 CET on 31 December 2016. 7. The participant who sent the first email received by IACA with the correct final 11. in word shall be the winner. The decision this regard shall be final. 8. 5. The winner will be announced in the following issue of IACAlumnus where his/ her name, picture, and short biography will be published upon his/her consent and will receive the award.
Good Luck and Enjoy!
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International Anti-Corruption Academy
11. 5.
Across 2 3 5 8 11
Obedient (Verb) Not Unlawful Moral principles Agreement Anti-corruption legislation (UK)
down 1 4 6 7 9 10
Comply (Noun) Anti-corruption legislation (US) Form of Void International Organization promoting Anti-corruption education and research Firm belief in the reliability of someone Gridlock
Issue Xiii, december 2016
Upcoming conferences 2017 12 JAN 2017
11th Annual National Institute on Securities Fraud
Location: Utah, USA
31 JAN - 1 FEB 2017
International Compliance, Legal Risks and Corporate Integrity
Location: Frankfurt, Germany
19 - 22 FEB 2017
Utilities & Energy Compliance & Ethics Conference
30 - 31 JAN 2017
31 JAN - 1 FEB 2017
Anti-Corruption Compliance Programmes in China
21st Advanced Global Legal and Compliance Forum on Cyber Security & Data Privacy and Protection
Location: Shanghai, China
Location: Washington, DC. USA
31 JAN - 1 FEB 2017
11th Houston Forum on the Foreign Corrupt Practices Act
Location: Houston, USA
22 - 23 FEB 2017
9th Expert Forum on ITC Litigation & Enforcement
13 feb 2017
TRACE Anti-Bribery Workshop
Location: Johannesburg, South Africa
save the date
4
th IACA Alumni Reunion
6 - 7 Jul 2017 Location: Washinhgton DC, USA
Location: Washinhgton DC, USA
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IACA INT
International Anti-Corruption Academy Muenchendorfer Strasse 2 2361 Laxenburg / Vienna Austria T: +43 2236 710 718 100 F: +43 2236 710 718 311 E: mail@iaca.int www.iaca.int