The OECD And Supranational Interpretation Of The Rule Of Law

The OECD And Supranational Interpretation Of The Rule Of Law Presented by: Dr. RADOVIĆ Date: 11 – 12 January 2025 OECD Standard-Setting Role and Work - The presentation will focus on the following: • OECD Standard-Setting Role in Fight Against Corruption, Promotion of Good Governance • OECD Standards in the Area of the Fight Against Transnational Bribery • OECD Standards in the Area Public Integrity • OECD Standards in the Area of Corruption Prevention in Public Governance • OECD Country-Specific Public Governance Reviews OECD Standard-Setting Role in Fight Against Corruption, Promotion of Good Governance - The Organization for Economic Co-operation and Development (OECD) has represented, since 1960, a unique forum where the governments of nearly 40 democracies cooperate to address the economic, social and environmental challenges of globalization; they pursue these goals by comparing policy experiences, seeking answers to common problems, identifying good practices and coordinating domestic and international policies. - Recognizing corruption as a threat to national and global security, harming economic growth, distorting fair competition, hurting development and undermining good governance, the OECD was one of the first international organizations to have contributed to fight against corruption and promotion of integrity; it has become an international standard-setter in those areas. - "The OECD's work has been instrumental to the global anti-corruption movement in three complementary directions: fighting against transnational bribery and other forms of unfair competition; promotion of integrity and transparency; and good governance in the public and private sectors." - OECD standards tool for reaching common views on policy issues, ensure coordinated action to tackle global challenges by OECD and cooperating countries. - "Standards" encompass OECD legal instruments and policy principles and guidelines developed within the OECD framework "setting out a collective agreement among the Members about what they shall do, should do, or intend to do." - Legal instruments developed by the OECD include: • OECD acts which are adopted by OECD Council (decisions and recommendations) • other legal instruments developed within the OECD framework (declarations, international agreements, substantive outcome documents)  International agreements and decisions are legally binding, while recommendations and substantive outcome documents are not. - Out of approximately 270 legal instruments developed within OECD framework since its establishment, around 20 legal instruments are dedicated to fighting corruption, bribery and promotion of integrity, both in public and in private sector. Distribution Per Legal Effect - - Legal Instruments by Type • Recommendations: 180 • Substantive Outcome Documents: 37 • Decisions: 23 • International Agreements: 10 • Other: 17 Legal effect of instruments directly affects • Mechanisms of control of their implementation and • Applicable mechanism for sanctioning improper implementation of the standards enshrined in these instruments. OECD Standards in Area of Fight Against Transnational Bribery - The Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the "Anti-Bribery Convention", adopted in 1997, entered into force in 1999) is the cornerstone of the OECD efforts to tackle corruption and sole international instrument in the area of fight against corruption focused on the supplyside of dealings involving bribery. - Significant corpus of standards has been developed by the OECD in the form of recommendations complementing the Anti-Bribery Convention: • Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions, adopted in 2021 • Recommendation on Bribery and Officially Supported Export Credits, adopted in 2019 • Recommendation for Development Co-operation Actors on Managing Risks of Corruption, adopted in 2016 • Recommendation of the Council on Tax Measures for Further Combating Bribery of Foreign Public Officials in International Business Transactions, adopted in 2009. Control Mechanisms: Monitoring Implementation and Enforcement of OECD AntiBribery Standards - Different measures have been developed by the OECD in view of ensuring compliance with the standards and supporting their implementation: regular exchanges of information and experiences on the implementation, collection of best practices, various modalities of countries' self-assessment in relation to implementation of the standards, country reviews (including peer reviews) resulting in recommendations for reviewed countries aimed at improving implementation of instruments and (further) alignment with OECD standards in a particular area. - The OECD's peer review mechanism has received widespread recognition as a model method for systematic evaluations of a state's performance by other states. Main advantages of the OECD peer-review method is the absence of possibility for the state under review to influence its outcome, as well as public availability of the report. - The most relevant example of the mandatory peer-review monitoring system is the monitoring of the countries` implementation and enforcement of the Anti-Bribery Convention by the OECD Working Group on Bribery in International Business Transactions, which is often referred to as `golden standard of monitoring. Control Mechanism - Legal Basis for Monitoring: Article 12 of Anti-Bribery Convention - Body in charge of control: the OECD Working Group on Bribery, composed of experts representatives of the parties to Convention. The WGB is leading global efforts in fight against foreign bribery by ensuring member countries uphold their obligations to prevent, detect and prosecute this crime. - Scope of Assessment: implementation of Anti-Bribery Convention and related instruments. - Monitoring Process: intergovernmental evaluation of every country undertaken in 4 phases addressing level f compliance with the Convention, resulting in adoption of a publicly available report with unanimously adopted recommendations, without the right of vote of evaluated country. Sanctions Related to Control Mechanisms - Measures if non-compliance is detected: • (i) if a country has inadequately implemented the Convention, Working Group on Bribery may consider conducting a Phase 4bis evaluation • (ii) in event of "continued failure to adequately implement the Convention following a Phase 4 evaluation, Phase 4bis evaluation or any follow-up to the Phase 4 or 4bis evaluation", WGB may consider measures from the nonexhaustive list provided in Phase 4 Monitoring guide "to encourage the evaluated country to correct any deficiency in the implementation of the OECD Anti-Bribery Convention or related legal instruments, including insufficient enforcement of the offences set forth in the OECD Anti-Bribery Convention." OECD Standards in Area of Corruption Prevention in Public Governance - Particular aspects of corruption prevention in public governance covered by OECD standards: • OECD Standards of Conduct by Public Officials: Conflict of Interest in the Public Sector • OECD Standards in Relation to Areas of Interaction between Public and Private Sector • OECD Principles for Transparency and Integrity in Lobbying Overview of the OECD Standards in the Area of Public Procurement - The OECD has provided support to governments in reforming their public procurement systems by providing relevant international standards therefor, notably the following: • Recommendation on Anti-Corruption Proposals for Bilateral Aid Procurement • Recommendation on Improving the Environmental Performance of Public Procurement • Recommendation on Principles for Public Governance of Public-Private Partnerships • Recommendation on Fighting Bid Rigging in Public Procurement • Recommendation on Public Procurement Control/Support Mechanisms - Guidance materials have been developed for purpose supporting implementation of the 2015 OECD Recommendation of the Council on Public Procurement, such as: - • The 2015 OECD Recommendation of the Council on Public Procurement • The Public Procurement Toolbox Support in implementing standards is also provided • Through frameworks and indicators, such as Methodology for Assessing Procurement Systems (MAPS), an international standard and universal tool to evaluate any public procurement system at any level of government, regardless of level of development of respective country, and • Peer reviews assessing public procurement systems and providing proposals for improvement, assisted by practical experience of leading experts from OECD Members who assist in implementation of international good practices. Overview of the OECD Standards in the Area of Lobbying - The Recommendation on Principles for Transparency and Integrity in Lobbying, adopted in 2010, is regarded as the first and the only international instrument addressing lobbying-related risks in the public decision-making process. - The Recommendation provides directions and guidance to the decision makers in the executive and legislative branches on how to foster transparency and integrity in lobbying, and on how to promote equal access to policy discussions for all parties concerned. Control /Support Mechanisms - The Public Governance Committee is in charge of reporting on progress made in implementing the Recommendation