Conventions Of Public Officials (Fraternity) - Full Text Of The Rule

Original Language Title: CONVENCIONES COHECHO DE FUNCIONARIOS PUBLICOS (FRANCIA) - Texto completo de la norma

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Conventions Law 25.319 Approve the Convention on the Fight against the Cohecho of Foreign Public Officials in the International Commercial Transactions signed in Paris, France.

Sanctioned: September 7, 2000.

Enacted: October 6, 2000.

The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc. sanction with force of Law:

ARTICLE 1 Agree on the Convention on the Limitation of the COHECHO OF FOREIGN PUBLIC WORKERS IN INTERNATIONAL TRADE TRANSACTIONS, signed in Paris .REPUBLICA FRANCESA. on 17 December 1997, which consists of DIECISIETE (17) articles and UN (1) annex, whose authentic photocopy is part of this law.

ARTICLE 2 Contact the national executive branch.

IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, TO THE SEPTEMBER OF THE YEAR DOS MIL.

# 25.319 EL

PASCUAL RAFAEL. . JOSE GENOUD. . Guillermo Aramburu. . Mario L. Pontaquarto.

CONVENTION ON THE LIGHT AGAINST COHECHO OF FOREIGN PUBLIC WORKERS IN INTERNATIONAL TRADE TRANSACTIONS

Preamble

The Parties,

Considering that coheche is a widespread phenomenon in international trade transactions, including trade and investment, which raises serious moral and political concerns, undermines good governance and economic development and distorts international competitive conditions;

Considering that all countries share a responsibility in the fight against bribery in international trade transactions;

Taking into account, the Revised Recommendation on Combating Cohecho in International Commercial Transactions, adopted by the Council of the Organization for Economic Cooperation and Development (OECD) on 23 May 1997, C(97)123/FINAL, which, inter alia, called for effective measures to deter, prevent and combat the cohechoing of foreign public officials in relation to international trade transactions, in particular, for the prompt and effective conformity of

In line with other recent developments that further promote international understanding and cooperation in the fight against the cohechoing of public officials, including United Nations activities, the World Bank, the International Monetary Fund, the World Trade Organization, the Organization of American States, the Council of Europe and the European Union.

Acknowledging the efforts of societies, trade organizations, trade unions, as well as other non-governmental organizations to combat cohecho.

Recognizing the role of Governments in preventing the request for bribes by individuals and companies in international trade transactions;

Recognizing that progress in this area is not only required at the national level but also multilateral cooperation, monitoring and follow-up;

Recognizing that achieving equivalence between actions taken by Parties is an essential objective and purpose of the Convention, which requires ratification without exceptions affecting this equivalence:

They agreed to the following:

ARTICLE 1

THE CRIME OF COHECHO OF FOREIGN PUBLIC

1. Each Party shall take the necessary measures to establish as an offence under its legislation the fact that a person deliberately offers, promises or grants any undue, pecuniary or other benefit, either directly or through intermediaries, to a foreign public official, to that official or to a third party, in order that the official may act or refrain from acting in connection with the exercise of his or her official functions, in order to obtain or retain an undue contract or other benefit.

2. Each Party shall take the necessary measures to criminalize complicity, including instigation, complicity or authorization of a cohesive act by a foreign public official. The attempt and association to bribe a foreign public official shall constitute criminal offences to the same extent as the attempt and association to bribe a foreign public official.

3. The offences defined in paragraphs 1 and 2 above shall be referred to as "collecting a foreign public official".

4. For the purposes of this Convention:

a. "foreign public officials" refers to anyone who holds a legislative, administrative or judicial office in a foreign country, either designated or elected; anyone who exercises a public service for a foreign country, including a public agency or a public enterprise, and any official or agent of an international public organization.

b. "foreign country" refers to all levels and subdivisions of the government, from the national to the local.

c. the term "act or refrain from acting in connection with the exercise of official functions" refers to the use of the position of the public official, both within and outside the authorized competence of that official.

ARTICLE 2

RESPONSIBILITY OF JURIDIC PERSONS

Each Party shall take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for cohesion to a foreign public official.

ARTICLE 3

SANCTIONS

1. The co-execution of a foreign public official may be punished with effective, coherent and deterrent penalties. The scale of penalties shall be comparable to those applicable to the co-execution of public officials of that Party and, in the case of natural persons, shall include deprivation of liberty sufficient to allow for effective mutual legal assistance and extradition.

2. In the event that, according to a Party ' s legal system, criminal liability is not applicable to legal persons, the Party shall provide assurances that they are subject to effective, consistent and deterrent sanctions of a non-criminal nature, including monetary sanctions for the cohesion of foreign public officials.

3. Each Party shall take such measures as may be necessary to ensure that the co-execution and proceeds of the co-execution of a foreign public official, or the assets whose value corresponds to that of that product, are subject to kidnapping and confiscation, or that monetary sanctions of comparable effect are applied to it.

4. Each Party shall consider the imposition of additional civil or administrative sanctions on a person who is liable to sanctions for the cohesion of a foreign public official.

ARTICLE 4

JURISDICTION

1. Each Party shall take such measures as may be necessary to establish its jurisdiction over the co-execution of a foreign public official when the offence is committed in whole or in part in its territory.

2. Each Party having jurisdiction to try its nationals for crimes committed abroad shall take such measures as may be necessary to establish its jurisdiction to proceed with respect to the cohecho of a foreign public official in accordance with the same principles.

3. Where more than one Party has jurisdiction over an alleged offence under this Convention, the Parties concerned, at the request of one Party, shall consult with a view to determining the most appropriate jurisdiction for judicial action.

4. Each Party shall consider whether its current basis of jurisdiction is effective in combating the cohecho of foreign public officials and, if not, shall take remedial action.

ARTICLE 5

IMPLEMENTATION

The investigation and prosecution of a foreign public official by cohecho shall be subject to the applicable rules and principles of each Party. These will not affect considerations of national economic interest, the possible effect on relations with another State or the identity of the natural or legal persons involved.

ARTICLE 6

PRESCRIPTION

The statute of limitations applicable to crimes of bribery of foreign public officials will provide an appropriate time for the investigation and prosecution of this offence.

ARTICLE 7

LAVADO DE DINERO

Each Party that has established the cohecho of its own public official as a determining offence, for the purpose of implementing its legislation on money laundering, shall do the same and under the same conditions with respect to the cohecho of a foreign public official, without regard to the place where the cohecho occurred.

ARTICLE 8

CONTABILITY

1. In order to effectively combat the co-execution of foreign public officials, each Party shall take such measures as may be necessary, within the framework of its laws and regulations relating to the maintenance of books and records, the publication of financial statements and the rules of accountability and audit, in order to prohibit the maintenance of extra-contable records, the conduct of extra-contable or insufficiently identified transactions, the registration of non-existent expenses, the seating of non-considentifiable

2. Each Party shall establish effective, coherent and deterrent penalties of a civil, administrative or criminal nature for such omissions and counterfeiting in respect of the books, records, accounts and financial statements of such societies.

ARTICLE 9

MUTUAL LEGAL ASSISTANCE

1. Each Party, to the extent permitted by its laws and relevant treaties and agreements, shall provide immediate and effective legal assistance to the other Party for the purposes of criminal investigations initiated by a Party in respect of offences falling within the scope of this Convention and for non-criminal proceedings brought under the Convention by a Party against a legal person. The requested Party shall promptly notify the requesting Party of any additional information or documents necessary to support the request for assistance and, where requested, the status and outcome of the request for assistance.

2. Where a Party commits the provision of mutual legal assistance to the existence of dual criminality, it shall be presumed to exist if the offence for which assistance is sought falls within the scope of this Convention.

3. A Party shall not refuse the provision of mutual legal assistance in criminal matters within the scope of this Convention on the basis of bank secrecy.

ARTICLE 10

EXTRADITION

1. The co-execution of a foreign public official shall be regarded as an extraditable offence under the laws of the Parties and extradition treaties between them.

2. If a Party which makes extradition conditional on the existence of an extradition treaty receives an extradition request from another Party with which it does not have an extradition treaty, it may consider that this Convention is the legal basis for extradition with respect to the offence of cohes of a foreign public official.

3. Each Party shall take the necessary measures to ensure the possibility of extraditing its nationals as well as the possibility of prosecuting its nationals for the offence of cohesing a foreign public official. A Party denying a request for the extradition of a person on the basis of cohesiveness of a foreign public official solely on the basis of the fact that the person is a national, shall submit the matter to the competent authorities for the purpose of the prosecution.

4. Extradition by cohecho of a foreign public official shall be subject to the conditions laid down in domestic law and the applicable treaties and agreements of each Party. Where a Party commits extradition to the existence of dual criminality, this condition shall be deemed to have been fulfilled if the offence for which extradition is requested falls within the scope of Article 1 of this Convention.

ARTICLE 11

RESPONSIBLE AUTHORITIES

For the purposes of Article 4, paragraph 3, on consultations, of Article 9, on mutual legal assistance, and of Article 10, on extradition, each Party shall notify the Secretary-General of OECD of the authority or authorities responsible for the formulation and receipt of applications, which shall serve as a link in this matter with respect to that Party, without prejudice to other agreements between the Parties.

ARTICLE 12

CONTROL AND FOLLOW-UP

The Parties shall cooperate in the implementation of a systematic follow-up programme to monitor and promote the full implementation of this Convention. Unless otherwise decided by consensus among the Parties, this shall be done within the framework of the OECD Working Group on Cohecho in International Trade Transactions and in accordance with its terms of reference, or within the framework or terms of reference of any organ that happens to it in such functions, and the Parties shall bear the costs of the programme in accordance with the rules applicable to that agency.

ARTICLE 13

FIRMA AND ADHESION

1. Until the entry into force, this Convention will be open for signature by members and non-OECD members who have been invited to be full participants in their Working Group on Cohecho in International Commercial Transactions.

2. Following its entry into force, a non-signatory country that is a member of the OECD or has become a full participant in the Working Group on Cohecho in International Trade Transactions or any agency that happens to it may accede to this Convention. For each non-signatory country, the Convention shall enter into force sixty days after the date on which the instrument of accession has been deposited.

ARTICLE 14

RATIFICATION AND DEPOSITARIAN

1. This Convention shall be subject to the acceptance, approval or ratification of the signatories, in accordance with their respective laws.

2. Instruments of acceptance, approval, ratification or accession shall be held by the Secretary-General of OECD, who shall act as depositary of this Convention.

ARTICLE 15

IN VIGOR

1. The present Convention shall enter into force on the sixtieth day after the date on which five of the countries with the ten largest export quotas expressed in document DAFFE/IME/BR(97)18/FINAL (annexed), and representing themselves, at least sixty per cent of the combined total exports of those ten countries, have deposited their instruments of acceptance, approval or ratification. For each State depositing its instrument after such entry into force, the Convention shall enter into force on the sixtieth day after the deposit of its instrument.

2. If, after 31 December 1998, the Convention had not entered into force in accordance with paragraph 1 above, any signatory State which has deposited its instrument, of acceptance, approval or ratification may declare to the Depositary in writing its will to accept the entry into force of this Convention under this paragraph 2. The Convention shall enter into force for that State on the sixtieth day following the date of deposit by at least two signatory States. For each State depositing its declaration after such entry into force, the Convention shall enter into force on the sixtieth day after the date of deposit.

ARTICLE 16

MODIFICATIONS

Any Party may propose modification of this Convention. Proposals for modification shall be submitted to the Depositary, who shall communicate them to the other Parties at least sixty days before the convening of a meeting of the Parties to consider the proposed amendment. A modification adopted by consensus between the Parties, or by any other means determined by consensus by the Parties, shall enter into force sixty days after the deposit of an instrument of ratification, acceptance or approval by all Parties or in the other circumstances specified by the Parties at the time of the amendment.

ARTICLE 17

RETIRO

A Party may withdraw from this Convention by giving a written notification to the Depositary. The withdrawal shall enter into force one year after the date of receipt of the notification. After withdrawal, cooperation between the Parties and the withdrawn Party shall continue with respect to all requests for assistance or extradition made prior to the date of entry into force of the withdrawal and pending.

Regarding Belgium-Luxembourg: Statistics for Belgium and Luxembourg: Statistics for Belgium and Luxembourg are available only on the combined basis of the two countries. For the purposes of Article 15, paragraph 1 of the Convention, if Belgium or Luxembourg separately deposit its instrument of acceptance, approval or ratification, or if Belgium and Luxembourg jointly deposit their instruments of acceptance, approval or ratification, it shall be considered that it has deposited its instrument one of the top ten exporting countries and the exports of both countries as a whole, shall be considered for 60 per cent of the combined total of ten countries that is necessary for the entry into force of this Convention.

Annex

DAFFE/IME/BR(97)18/FINAL

STATISTICS IN OECD EXPORTS

OECD EXPORTS

1990-1996

1990-1996

1990-1996

US$ millions

%

total OECD

%

10 pp.

United States

287.118

15.9 per cent

19.7 per cent

Germany

254.746

14.1%

17.5%

Japan

212.665

11.8%

14.6%

France

138.471

7.7%

9.5%

United Kingdom

121.258

6.7%

8.3 per cent

Italy

112.449

6.2%

7.7%

Canada

91.215

5.1 per cent

6.3%

Korea (1)

81.364

4.5%

5.6 per cent

Netherlands

81.264

4.5%

5.6 per cent

Belgium-Luxembourg

78.598

4.4%

5.4 per cent

Total 10 pp.

1.459.148

81.0%

100%

Spain

42.469

2.4%

Switzerland

40.395

2.2%

Sweden

36.710

2.0%

Mexico (1)

34.233

1.9%

Australia

27.194

1.5%

Denmark

24.145

1.3%

Austria*

22.432

1.2%

Norway

21.666

1.2%

Ireland

19.217

1.1%

Finland

17.296

1.0%

Poland (1)**

12,652

0.7 per cent

Portugal

10.801

0.6%

Turkey*

8.027

0.4%

Hungary**

6.795

0.4%

New Zealand

6.663

0.4%

Czech Republic***

6.263

0.3%

Greece*

4.606

0.3%

Iceland

949

0.1 per cent

Total OECD

1.801.661

100%

Notes: * 1990-1995; ** 1991-1996; *** 1993-1996

Source: OECD, (1) IMF