Abstract
The chapter focuses on the role of the International Chamber of Commerce (ICC) in combating corruption. It offers a historical overview of the chamber’s activities in this field commencing with the establishment of the Committee on Extortion and Bribery in 1974. It illustrates the functions of the International Panel of Experts, created as a monitoring body for the rules of conduct produced by this nongovernmental organization. The chapter then outlines the new anticorruption initiatives developed by the ICC together with other international organizations. In particular, the chapter covers the Resisting Extortion and Solicitation in International Transactions project set up by the ICC, Global Compact, Partnering Against Corruption Initiative (PACI), and Transparency International; the Good Practice Guidance on Internal Control, Ethics, and Compliance developed by the Organisation for Economic Co-operation and Development (OECD) Working Group on Bribery; and the ICC Anti-corruption Clause, which represents a new instrument for the civil sanctioning of corruption.
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Notes
- 1.
Hartley William Shawcross (1902–2003), British barrister and politician. Lord Shawcross served as Member of Parliament from 1945 to 1958 and held the position of Attorney-General from 1945 to 1951. He was the (much-respected) lead British prosecutor at the Nuremberg War Crimes Tribunal.
- 2.
Another famous member of this committee was Lloyd Cutler (1917–2005), an American attorney who served as a White House Counsel during the democratic administrations of Presidents Carter and Clinton. In 1962, Lloyd Cutler cofounded the Washington, D.C.-based law firm Wilmer Cutler & Pickering.
- 3.
See US Government Printing Office, 91 Stat. 1494 Public Law 95–213—Dec. 19, 1977, http://www.gpo.gov/fdsys/pkg/STATUTE-91/pdf/STATUTE-91-Pg1494.pdf, accessed 16 July 2013.
- 4.
Some criticism was voiced against the ICC document, e.g., Draetta (2010); Black and Witten (1997, Chap. 9 at item 5): “[T]here is no evidence that the ICC Rules of Conduct had any tangible impact on international practices”; and Pieth (2007, p. 9): “Similarly, the rules of conduct developed by the International Chamber of Commerce (ICC)…, and aiming to supplement an international public standard, were finalised. They too remained, however, a more or less dead letter without the public backing of the Convention, until new efforts in the 1990s proved more successful.”
- 5.
Transparency International (TI) was founded as a nongovernmental organization in 1993 mainly by a group of former World Bank executives. TI has its international headquarters in Berlin and has, since its foundation, created national chapters in about 100 countries. In June 2003, TI published its Business Principles for Countering Bribery.
- 6.
The United Nations Global Compact was launched in 1998, as the result of an invitation by UN Secretary-General Kofi Annan to the world’s enterprises to commit to comply with the provisions of international instruments in the fields of human rights, labor law, and the protection of the environment. At a later stage, the fight against corruption was added, as “a tenth principle,” to the list.
- 7.
Together with Transparency International and the Basel Institute on Governance, the World Economic Forum launched the document “Principles for Countering Bribery” of the Partnering against Corruption Initiative.
- 8.
The World Economic Forum was founded in 1971 as an independent international organization having its seat in Geneva.
- 9.
International Chamber of Commerce, Extortion and Bribery in Business Transactions: Report Adopted by the 131st Session of the Council of the ICC, 29 November 1977 (Paris: The Chamber, 1977).
- 10.
Article 11 of the Shawcross Report, as well as Part IV of the same document containing the bylaws of the panel.
- 11.
Bylaws adopted by the 132d session of the Council of the ICC, 20 June 1978.
- 12.
ICC usually describes itself by saying: “It makes rules that govern the conduct of business across borders.”
- 13.
The UCP were issued for the first time in 1933 and their sixth and latest revision (under the name ‘UCP 600’) dates from 1 July 2007.
- 14.
The INCOTERMS were first issued in 1936 and their latest revision (under the name “INCOTERMS® 2010”) dates from 1 January 2011. See ICC, The New Incoterms® 2010 Rules, http://www.iccwbo.org/products-and-services/trade-facilitation/incoterms-2010/, accessed 16 July 2013.
- 15.
This code was first published in 1937, it has been revised seven times, the last being in 1997.
- 16.
See also the Business Action for Responsible Marketing and Advertising (BARMA), where advertisers, agencies, media, and other major stakeholders are brought together to promote greater application and reach of the ICC Code of the Consolidated Advertising and Marketing Communication Practice, which has served as the global gold standard for self-regulation in this field since 1937. The ICC Code sets the bar for ethical guidelines and responsible marketing practices globally, and is the reference for most nationally applied self-regulation.
- 17.
In addition to different codes, the ICC also produces an impressive number of model contracts, based on best business practice.
- 18.
The ICC report of 1977 provided that the ICC rules were “of a general nature constituting what is considered good commercial practice in matters to which they relate but without direct legal effect.”
- 19.
Even if a certain number of courts refer to the ICC provisions in their rulings.
- 20.
For a very critical comment on the ineffectiveness of the Panel, see Heritier (1981, p. 137; quoted by Oppetit 1987, p. 17): “one should ask the question whether the acceptance of very strict rules, laid down in the articles 1 to 5 of the [ICC] Code of Conduct [together with] the refusal of control and sanctions, has a meaning or if it is only a means to react in front of external pressure [and] a way to create a good conscience.”
- 21.
Oppetit commented in the above-mentioned article (1987, pp. 5‒21) that the positions taken in French criminal, civil, and tax law on corruption were particularly lenient, and noted that “the legal system [of the country concerned], far from pronouncing a condemnation free from any ambiguity, … appear[ed] to adopt an attitude of indifference, not to say of pure and simple acceptance: as soon as the matter turn[ed] around the conquest of markets outside the national territory, the moral reprobation of corruption weaken[ed] considerably or even vanishe[d].”
- 22.
On the “benign neglect” shown by the competitors of the USA, see Sacerdoti (2000, p. 30).
- 23.
United Nations, Economic and Social Committee, Report of the Ad Hoc Intergovernmental Working Group on the Problem of Corrupt Practices, July 5, 1977, UN Doc. E/6006.
- 24.
International Chamber of Commerce, Extortion and Bribery in International Business Transactions, Exec. Bd., 83rd Sess. 26 March 1996.
- 25.
BIAC is an independent international business association devoted to advising government policymakers at OECD and related fora on the many and diverse issues of globalization and the world economy.
- 26.
See Commentaries on the Convention, item 1: “This Convention deals with what, in the law of some countries; is called ‘active corruption’ or ‘active bribery’, meaning the offence committed by the person who promises or gives the bribe, as contrasted with ‘passive bribe’, the offence committed by the official who receives the bribe…. In fact, in a number of situations, the recipient will have induced or pressured the briber and will have been, in that sense, the more active.”
- 27.
In its first phase, the RESIST project was led by Mr. François Georges, at the time an executive of EDF and presently Secretary-General of ICC France, while the second phase was led by Mr. Iohann Le Frapper, General Counsel Networks Group at Alcatel-Lucent and recently appointed Vice-Chair of the ICC Commission on Social Responsibility and Anticorruption.
- 28.
See ICC, Resisting Extortion and Solicitation in International Transactions (RESIST), http://www.iccwbo.org/products-and-services/fighting-commercial-crime/resist/, accessed 16 July 2013.
- 29.
ICC France is preparing a number of practical instruments to make RESIST an even easier means to spread among company employees the recommended attitudes when facing solicitation and extortion.
- 30.
Compare Article 10 of the ICC Rules on Combating Corruption (2011).
- 31.
The US Federal Sentencing Guidelines contain a guideline entitled “Effective Compliance and Ethics Program.” The program described in the guideline contains seven items, also often referred to as the Seven Steps: (1) setting up of a compliance program capable of preventing criminal or prohibited acts, (2) assigning specific high-level personnel to oversee compliance, (3) exercising care not to hire individuals or to delegate substantial discretionary authority to them if they are likely to participate in illegal activities or conduct inconsistent with an effective compliance and ethics program, (4) effectively communicating standards and procedures to all employees, (5) implementing reasonable compliance measures, such as monitoring, auditing, and reporting, (6) using disciplinary mechanisms to consistently enforce standards and procedures, and (7) taking all reasonable steps to respond appropriately after an offense has been detected, including modifying the compliance program.
An organization which can evidence effective compliance with a corporate compliance and ethics program meeting the above criteria, may expect this to have a bearing on the penalties and probation terms if it is convicted and sentenced for a criminal offense. See also Vincke (1999, pp. 21‒25).
- 32.
See the Italian Legislative Decree N. 231 of 8 June 2001, which foresees an exemption for entities which can provide evidence that they meet certain compliance conditions. I note, in particular, in this context, that the management model adopted by an entity may be based on a code of conduct, established by a professional association, and notified to the Minister of Justice and to other departments.
- 33.
See Article 7 of the UK Bribery Act 2010 and the guidance about procedures which relevant commercial organizations can put into place to prevent persons associated with them from bribing.
- 34.
OECD, Good Practice Guidance, Sect. B.
- 35.
See ICC, ICC Anti-corruption Clause, http://www.iccwbo.org/Advocacy-Codes-and-Rules/Document-centre/2012/ICC-Anti-corruption-Clause/, accessed 16 July 2013.
- 36.
See ICC, “New ICC Tool Responds to G20 Anti-corruption Call,” http://www.iccwbo.org/News/Articles/2012/New-ICC-tool-responds-to-G20-anti-corruption-call/, accessed 16 July 2013.
- 37.
Part I of the ICC Rules on Combating Corruption expresses a prohibition of all forms of corruptive practices.
- 38.
See ICC, ICC Rules on Combating Corruption, http://www.iccwbo.org/advocacy-codes-andrules/areas-of-work/corporate-responsibility-and-anti-corruption/ICC-Rules-on-Combatting-Corruption/, accessed 16 July 2013.
- 39.
See also the commentaries, which are a part of the ICC Anti-corruption Clause.
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Vincke, F. (2014). Emerging Control of and Sanctions Against Corruption: The International Chamber of Commerce. In: Manacorda, S., Centonze, F., Forti, G. (eds) Preventing Corporate Corruption. Springer, Cham. https://doi.org/10.1007/978-3-319-04480-4_14
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