Judicial diplomacy and Foreign Bribery
Corruption is not a new phenomenon. Globalization, the unbridled race to make more profits, coupled with the internalization of trade give transnational corruption a new dimension known as "grand corruption".
In recent years, numerous grand corruption scandals have emerged, most often revealed by whistleblowers or investigative media. Multinational companies have been involved in complex patterns of corruption. These scandals also involve politicians across political parties and from the highest reaches of government.
The OECD Anti-Bribery Convention establishes standards to criminalize bribery of foreign public officials in international business transactions. Articles 15 and 16 of the UNCAC also relate to the obligations of States Parties to criminalize the bribery of national public officials, foreign public officials and officials of public international organizations.
The corruption of foreign public officials has a double face: behind every corrupt person is a person will to pay a bribe. Often, this is a legal person with a registered office in the world's major economic capitals, making their prosecution a large and complex undertaking. As part of a comprehensive approach and the fight against impunity, it is important to strengthen the prosecution and punishment of foreign private companies involved in such acts.
Under Belgian law, any Belgian company that pays a bribe nationally or internationally is liable to criminal prosecution in Belgium. The legislation thus allows the opening of national investigations against Belgian companies suspected of having committed acts of corruption of a public official abroad.
Despite this optimal legislative framework, the international anti-corruption evaluation from the OECD emphasized that there was no case of large-scale foreign bribery opened in Belgium underscoring the lack of application of the existing legislation. This appeared to be the case despite Belgian companies being exposed to corruption risks given the countries where they operate, many where corruption is endemic.
Subsequent to these international evaluations, in 2015 the Belgian Ministry of Justice and the Ministry of Foreign Affairs adopted a new inter-institutional approach to cooperate based on three axes:
1. Obligation of official reporting by officials of diplomatic posts abroad:
According to Article 29 of the Criminal Investigation Code, any constituted authority, any civil servant in Belgium or abroad or any public official has the obligation to officially report to the judicial authority any crime or offence of which they became aware when performing their duties.
This provision is in line with Article 8.4 of the UNCAC under “code of conduct for public officials”
In other words, diplomats and officials of diplomatic missions abroad who become aware of serious indications of corruption by a Belgian company are obliged to report this information without delay to the competent authority.
2. Memorandum of Understanding (MoU) between Ministry of Foreign Affairs and Ministry of Justice establishing a reporting channel:
An agreement signed in October 2015 between these two Ministries foresees that reports of diplomatic posts must be sent with all relevant information to the Ministry of Foreign Affairs (Directorate General Globalization, International Governance) which conveys the serious indications of acts of corruption to the Ministry of Justice. It is the responsibility of the Ministry of Justice to submit relevant information to the competent judicial authority, which is the only authority empowered to decide whether to open an investigation or to close the case.
3. Raising the awareness of Belgian companies abroad through instructions from the Minister of Foreign Affairs:
Belgium’s diplomatic posts abroad are instructed by the Minister of Foreign Affairs to make Belgian companies aware of their due diligence obligations under the Responsible Conduct Business plan and of the risks of corruption.
As a result, since 2015, several complex cases of international corruption practices against Belgian companies have been reported by the diplomatic channel and national investigations are being opened by the Federal Prosecutor.
Judicial diplomacy and international cooperation
Informal and direct contacts between practitioners could play an important role to ensure adequacy and success of international cooperation requests for their timely execution and should generally be explored before sending a formal mutual legal assistance request. It is very useful to share strategic information for multi-jurisdictional investigations through the identified national contact points of regional networks of practitioners like CARIN, Europol and Interpol.
Diplomatic networks can also be useful as contact points to facilitate the preparation of a request for mutual legal assistance. In certain sensitive or complex cases, Belgian embassies abroad have established, in agreement with the judicial authority, prior and direct contacts with the authorities of the country competent to execute the MLA. These contacts led by Belgian ambassadors make it possible to sensitize the competent foreign authorities to the complexity of a case and to prepare the execution of the MLA request for example, by determining the venue of the investigators and the Belgian judge and the strategy for the cooperation.
Diplomatic posts have the advantage of being accredited in all countries and benefit from mutual trust and respect. In certain instances, the particular nature of a case may justify that Ambassadors activate judicial diplomacy that will tend to facilitate international judicial cooperation.
To conclude, as a way forward, this culture of judicial diplomacy needs to be strengthened and diplomatic networks need to be used in a global approach to fight against transnational corruption and impunity. This approach is also likely to give economic diplomacy a “label of quality” and success that will benefit companies that give priority to risk management, social and environmental responsibility and integrity, supporting therefore the creation of long-term ethical values.