US embassy cable - 05PARIS7355

UNCLAS SECTION 01 OF 04 PARIS 007355 
 
SIPDIS 
 
FROM USOECD 
 
STATE FOR EUR/ERA, EB/IFD/ODF-LFCONNELL, 
EB/IFD/OIA-PBROWN 
DOC FOR ELENZ 
DOJ FOR MMENDELSOHN 
TREASURY FOR STVARDEK AND DDRYSDALE 
PASS TO EX-IM CFIRESTONE 
 
SENSITIVE 
 
E.O. 12958:N/A 
TAGS: EFIN, EINV, ETRD, EXIM, OECD 
SUBJECT: OECD/EXPORT CREDIT: STRENGTHENED ANTI-BRIBERY 
ACTION STATEMENT FACES DIVERGENT VIEWS 
 
 
(U) SENSITIVE BUT UNCLASSIFIED-- PROTECT ACCORDINGLY. 
Not for Internet distribution. 
 
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SUMMARY 
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1.  (SBU) Summary: Members of the Organization for 
Economic Cooperation and Development (OECD) working 
group on export credits and credit guarantees (ECG) met 
October 10 and 11 in Paris to consider proposals to 
enhance the November 2000 Action Statement on Bribery 
and Officially Supported Export Credits.  The Chairman 
of the OECD Working Group on Bribery (WGB) and several 
members of the WGB management group (US, France, 
Sweden) also attended.  ECG members, who expressed 
divergent views on key aspects of the Statement, agreed 
to the OECD Secretariat's offer to prepare a draft 
reflecting the information and views expressed in the 
talks. Germany, Belgium, Czech Republic, and Japan were 
among those least interested in a robust new Action 
Statement.  The Secretariat's strong draft statement 
(attached at para. 6), distributed October 21, provides 
a favourable starting point for further negotiations, 
which will culminate in the ECG's semi-annual plenary 
session November 14-18.  End summary. 
 
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TI Presents a Strong Proposal 
----------------------------- 
 
2.  (U) Representatives from Transparency International 
(TI), who joined ECG members the morning of October 10, 
made a strong presentation on the need for export 
credit agencies (ECAs) to take active antibribery 
measures, outlining a broad range of steps which built 
on those offered in the U.S. proposal circulated to the 
ECG via the OECD on September 2. Specifically, TI 
proposed strengthening the U.S. proposal by including a 
requirement that exporters and applicants seeking ECA 
support disclose agents' names, addresses, commissions, 
services performed, bank account receiving the 
commission, connections between the agent and public 
officials in the buyer's country, and a statement as to 
the reasonableness of the amount of commission.  [The 
U.S. proposal notes that disclosure of agents and their 
commissions may be required, but does not set a firm 
requirement or further detail further information 
required.] TI also proposed that ECG member countries 
develop and implement a debarment system for excluding 
companies previously engaged in bribery from receiving 
export credit agency (ECA) support and that they 
encourage ECAs in non-ECG member countries to adopt 
measures outlined in the strengthened Action Statement. 
 
--------------------------------------------- 
New Canadian Proposal Better Than the Germans' 
(But Still Not Good) 
--------------------------------------------- - 
 
3.  (U) A German/Belgian/Czech proposal presented in 
2004, which the U.S. had found lacked sufficient 
concrete measures, was the least progressive proposal 
discussed. A new Canadian proposal took a middle 
position between that proposal and the U.S. proposal. 
The Canadian proposal had a useful provision on 
illustrative requirements of measures that companies 
previously debarred for bribery could take to re-gain 
eligibility for export credits, including replacing 
individuals who had been involved in bribery, adopting 
an effective anti-bribery program, and submitting to an 
audit and making its results available.  However, the 
Canadian proposal also omitted some key elements of the 
U.S. proposal, such as disclosure of 
agents/commissions, and references to applicants. 
 
--------------------------------------------- ---------- 
Key Issues: Agents, Due Diligence, Reporting, Debarment 
--------------------------------------------- ---------- 
 
4.  (U)Despite helpful explanations from OECD's export 
credit and legal staff on the rapid evolution and 
strengthening of international anti-bribery law and 
practice, comments reflected a wide range of opinion. 
An attempt by the OECD Secretariat to base plenary 
discussion on the U.S. proposal elicited wide 
opposition and was dropped.  Given the absence of 
consensus, the Chair solicited members' views for 
inclusion in an OECD Secretariat draft Action Statement 
on four areas: 
(1) selection by export credit agency (ECA) clients of 
agents and disclosure of agents' commissions; 
(2) ECA conditions for applying enhanced due diligence; 
(3) ECA reporting to authorities of possible bribery; 
and 
(4) ECA measures, such as debarment, in event past 
bribery by ECA clients. 
 
-------------------------------------- 
Divergent Views Leave Outcome in Doubt 
-------------------------------------- 
 
5.  (SBU) Discussion revealed some members strongly 
resistant to commit to any concrete measures.  This 
group included Germany, Belgium, the Czech Republic, 
Austria, Poland, Spain, Turkey and especially Japan. 
The U.S. consistently presented the practical need for 
and benefits from its proposals in each area and found 
some support, notably from the Netherlands, the UK, 
Switzerland, Sweden, Finland, and Australia.  In the 
middle were Canada (although closer to the first 
group), Denmark, France, and Korea.  Italy and Mexico 
were silent, while Portugal and Slovakia were absent. 
In a meeting between the ECG bureau and the WGB 
management group, USDel to the WGB warned that failure 
by the ECG to enhance the Action Statement risked work 
being transferred to the WGB.  Supporting USDel, the 
WGB Chairman, Mark Pieth, noted that the WGB is 
building up a "case law" type approach through 
recommendations in the WGB's peer review process. 
Through this process, the WGB has made a series of 
specific recommendations for enhancements to specific 
members' export credit policies.  The WGB's October 18- 
20 meeting (septel forthcoming) briefly reviewed work 
in the ECG and encouraged delegations to ensure they 
coordinate with their ECG counterparts. 
 
6. (SBU) The Secretariat's draft action statement, 
distributed October 21, includes key provisions of the 
U.S. proposal, along with some positive elements of the 
Canadian proposal and suggestions made by other 
delegations such as the Swiss.  Comment: While it 
remains unclear whether a consensus document with 
meaningful improvements over the 2000 Statement will 
gain approval, the Secretariat's strong draft statement 
(para. 7) provides a favourable starting point for 
further negotiations.  End comment. 
 
7. (U) Following is the Secretariat draft scheduled to 
be considered in the ECG plenary meetings the week of 
November 14: 
Begin quote. 
 
DRAFT 2005 ACTION STATEMENT ON BRIBERY AND OFFICIALLY 
SUPPORTED EXPORT CREDITS 
 
In recognition of the Convention on Combating Bribery 
of Foreign Public Officials in International Business 
Transactions (hereafter the Anti-Bribery Convention) 
and the 1997 Revised Recommendation of the Council on 
Combating Bribery in International Business 
Transactions (hereafter the 1997 Recommendation)(1), 
the Members of the OECD Working Party on Export Credits 
and Credit Guarantees (ECG) agree: 
 
1) Combating bribery in international business 
transactions is a priority issue and the ECG is the 
appropriate forum to ensure the implementation of the 
Anti-Bribery Convention and the 1997 Recommendation in 
respect of international business transactions 
benefiting from official export credit support. 
 
2) To take appropriate measures (2) to deter bribery 
(3) in international business transactions benefiting 
from official export credit support, including: 
a) Informing applicants and exporters requesting 
support about the legal consequences of bribery in 
international business transactions under its national 
legal system including its national laws prohibiting 
such bribery. 
 
b) Requiring applicants and exporters to provide an 
undertaking/declaration that they maintain appropriate 
(4) anti-bribery controls and that neither they, nor 
anyone acting on their behalf, (e.g. agents) have been 
engaged or will engage in bribery in the transaction. 
 
c) Requiring applicants and exporters to disclose 
occurrences, within a [xx] year period preceding the 
application, of (i) any debarment of the exporter, or 
any subsidiary or affiliated entity (5), by the World 
Bank or any other multilateral financial institution, 
or any government entity, as a result of having been 
engaged in bribery, and (ii) any conviction, charge, or 
civil or administrative determination, penalty, order 
or settlement involving the exporter, or any subsidiary 
or affiliated entity, for violations of laws against 
bribery of foreign public officials of any country. 
 
d) Requiring that applicants and exporters agree to 
disclose, upon demand: (i) the identity of persons 
acting on their behalf in connection with the 
transaction, and (ii) the amount and purpose of 
commissions and fees paid to such persons. 
 
e) Requiring, for medium and long-term transactions (6) 
with a total contract value of SDR [xx] million or more 
with a public sector buyer in a country where risk of 
bribery and corruption is deemed to be relatively high 
(7), that applicants and exporters disclose: (i) the 
identity of persons acting on their behalf in 
connection with the transaction, and (ii) the amount 
and purpose of commissions and fees paid to such 
persons. 
 
f) Undertaking enhanced due diligence if the Member 
becomes aware that the applicant, exporter, or any 
subsidiary or affiliated entity of such exporter has, 
within a [xx] year period preceding the application, 
been: (i) debarred by the World Bank or any other 
multilateral financial institution or any government 
entity as a result of having been engaged in bribery, 
(ii) found guilty in a court, criminally charged, or 
the subject of a civil or an administrative 
determination, penalty, order or settlement, for 
violation of laws against bribery of foreign public 
officials of any country; or if they have reason to 
believe that bribery may be involved in the 
transaction. 
 
g) Developing and implementing procedures to disclose 
to their law enforcement authorities instances of 
credible evidence of bribery in the case that such 
procedures do not already exist. 
 
h) Taking preventive and corrective actions that are 
appropriate given the specific circumstances of the 
transaction if there is credible evidence that bribery 
was involved in the award of the export contract, 
including: refusing to approve credit, cover or other 
support and, where support has already been provided, 
denying payment or indemnification or seeking refund of 
sums provided. 
 
i) Developing and implementing procedures to deal with 
companies that have been convicted of bribery in order 
to ensure that support is not provided to any company 
that has not taken appropriate internal corrective 
measures (8) to deter further bribery. 
 
3) The application by Members of the measures set out 
in Paragraph 2 in no way mitigates the responsibility 
of the exporter and other parties in transactions 
benefiting from official support to: (i) comply with 
all applicable laws and regulations, including national 
provisions for combating bribery of foreign public 
officials in international business transactions, or 
(ii) provide the proper description of the transaction 
for which support is sought, including all relevant 
payments. 
 
4) To continue to exchange information on how the Anti- 
Bribery Convention, the 1997 Recommendation and the 
measures listed in Paragraph 2 above are being taken 
into account in Members' official export credit 
systems. 
 
5) To continue to collate, map and review the 
information exchanged with a view to: (i) ensuring that 
functional equivalence exists in respect of the 
practical application by Members of the measures set 
out in Paragraph 2 above, and (ii) considering further 
steps to combat bribery in respect of transactions 
benefiting from official export credit support. 
 
6) To continue to publish the results of the 
information exchange and to consult on a regular basis 
with appropriate stakeholders. 
Footnotes: 
(1) Article 12 of the Anti-Bribery Convention provides 
for monitoring and follow-up to promote the full 
implementation of this Convention. The OECD Working 
Group on Bribery in International Business Transactions 
considers that insofar as officially supported export 
credits is concerned, the appropriate forum is the OECD 
Working Party on Export Credits and Credit Guarantees 
(ECG); the ECG reports progress to the Working Group on 
Bribery. 
(2) These measures would be realized in accordance with 
the legal system of each Member country taking into 
account its specific judicial instruments and 
institutions to implement its penal laws and are not 
prejudicial to the rights of any parties not 
responsible for the illegal payments. 
(3) As defined in the Anti-Bribery Convention. 
(4) Some small- and medium-sized enterprises may have 
less detailed anti-bribery controls in comparison to 
those maintained by e.g. large, multinational 
corporations. 
(5) For the purposes of this Statement, "affiliated 
entity" means (a) any company that holds, directly or 
indirectly, a majority of the voting stock of the 
company; and (b) any other company the majority 
ownership of whose stock is held by the company 
described in (a). 
(6) For the purposes of this statement, any transaction 
with a repayment term of two years or longer. 
(7)  For  the  purposes  of this Statement,  "countries 
where  the risk of bribery and corruption is deemed  to 
be  high" are countries with a score of three or  lower 
on  Transparency International's Corruption  Perception 
Index. 
(8)  Such measures could include: replacing individuals 
that  have  been  involved  in  bribery,  adopting   an 
effective anti-bribery program, submitting to an  audit 
and making the results of such audit available. 
End Quote. 
YY 
 
MORELLA