On November 21, 1997, negotiators from 33 countries [28 of the 29 member states of the Organization for Economic Cooperation and Development (OECD), along with Argentina, Brazil, Bulgaria, Chile, and the Slovak Republic] adopted a Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the convention) at the Organization for Economic Cooperation and Development in Paris. The convention was signed by representatives of participating countries on December 17, 1997, in Paris. Secretary of State Madeleine Albright signed on behalf of the United States.

At the urging of the United States, in 1994 the OECD adopted a Recommendation on Combating Bribery in International Business Transactions, and in 1996 adopted a Recommendation on the Tax Deductibility of Bribes of Foreign Public Officials. A Revised Recommendation on Combating Bribery in International Business Transactions was approved at the May 1997 OECD ministerial, which included an annex of agreed common elements that served as the basis for the convention negotiations. Three rounds of negotiations were held -- in July, October, and November of 1997.

The convention is a historic achievement in the fight against bribery. The convention obligates the parties to criminalize bribery of foreign public officials. "Foreign public officials" is defined to include officials in all branches of government, whether appointed or elected; any person exercising a public function, including for a public agency or public enterprise; and any official or agent of a public international organization. A public function includes any activity in the public interest, delegated by a foreign country. A public enterprise is any enterprise over which a government or governments may, directly or indirectly, exercise a dominant influence. An official of a public enterprise shall be deemed to perform a public function unless the enterprise operates on a normal commercial basis in the relevant market, i.e., on a basis that is substantially equivalent to that of a private enterprise, without preferential subsidies or other privileges.

Although the text does not specifically cover political parties, the negotiators agreed that the convention will cover business-related bribes to foreign public officials made through political parties and party officials, as well as those bribes that corrupt foreign public officials direct to political parties. Some persons who are not formally designated as public officials but who may in fact perform a public function (e.g., political party officials in single party states) may, under the legal principles of some countries, be considered to be foreign public officials. In addition, under the legal systems of some countries, an advantage promised or given to a person in anticipation of that person's becoming a foreign public official may fall within the scope of the convention. Negotiators agreed to an accelerated work plan to address several outstanding issues related to the convention, including acts of bribery relating to foreign political parties and relating to persons in anticipation of their becoming foreign public officials. The results of this review will be reported to ministers by the 1999 OECD Council meeting.

The negotiators agreed to apply "effective, proportionate, and dissuasive criminal penalties" to those who bribe foreign public officials. Countries whose legal systems lack the concept of criminal corporate liability must provide for equivalent non-criminal sanctions, including monetary penalties. The convention further requires that countries be able to seize or confiscate the bribe and bribe proceeds (i.e., net profit), or property of similar value, or that monetary sanctions of comparable effect be applicable.

The convention requires that parties take necessary measures, within the framework of their relevant laws and regulations, to prohibit the establishment of off-the-books accounts and similar practices used to bribe foreign public officials or to hide such bribery. Parties shall make bribery of foreign public officials a predicate offense for purposes of money laundering legislation on the same terms as bribery of domestic public officials.

Parties are to establish jurisdiction over offenses that are committed in whole or in part in their territories. Parties may rely on the general jurisdictional principles -- nationality or territoriality -- recognized by their legal systems. The territorial basis for jurisdiction is to be interpreted broadly so that an extensive physical connection to the act of bribery is not required. The convention provides that parties will review their current bases for jurisdiction and take remedial steps if they are not effective in the fight against the bribery of foreign public officials. Parties shall consult when more than one party asserts jurisdiction. Participating governments pledged to work together to provide legal assistance relating to investigations and proceedings within the scope of the convention and to make bribery of foreign public officials an extraditable offense.

At the May 1997 OECD Council meeting, ministers recommended that member states submit to national legislatures by April 1, 1998, legislation to criminalize bribery of foreign public officials and seek the enactment of such laws by the end of 1998. The convention requires the parties to cooperate in a follow-up program, in the framework of the OECD, to monitor and promote full implementation.

The convention will enter into force when five of the OECD's 10 largest exporting countries, which by themselves represent 60 percent of the combined total exports of those 10 countries, deposit their instruments of ratification. If this has not occurred by the end of 1998, thereafter the convention will enter into force when at least two signatories have deposited their instruments of ratification and declare their willingness to be bound.

(Editorial notes: The convention has been signed by the 29 OECD members plus Argentina, Brazil, Chile, Bulgaria, and The Slovak Republic. The complete text of the OECD convention can be obtained from the OECD homepage at: http://www.oecd.org/daf/cmis/bribery/20nov1e.htm An update on steps taken and planned future actions by each participating country to ratify and implement the convention may be obtained at: http://www .oecd.org/daf/cmis/bribery/annex2.htm)