Rigalian authorities suspect MDI of bribing members of the provincial tribal councils in the Northern Provinces of Rigalia

The transporters for MDI paid mandatory undocumented fees to members of the provincial tribal councils, exercising public functions in the Northern Provinces,[61] in order to ensure the protection of the extraction site and the smooth delivery of the product to RRI’s plant in Rigaliaville,[62] which was sustained by a former MDI employee in his report to the police.[63] Those fees are not allowed by the Rigalian law but may be considered as so called "facilitation" payments by the Ardenian law.[64] The Respondent considers that this contradictory situation must be decided according to Rigalian and international laws.

However they do not formally constitute an offence as payments made “to obtain or retain business or other improper advantage.”[65] However "[f]acilitation payments are a major problem in many developing countries and place a heavy burden on their poorest citizens. They are often part of widespread extortion schemes organized from the top down, and not isolated acts by low-level officials. Corporate compliance experts have learned that it is difficult to draw a line between facilitation payments and other bribes.”[66] “Such payments, which, in some countries, are made to induce public officials to perform their functions, are generally illegal in the foreign country concerned.”[67] Although the permission of those payments in Ardenian law does not directly violate the Convention, but the fact of such payments occurred in the Northern Provinces of Rigalia, while Rigalian law prohibits them, needs assessment. That is why this case should be investigated properly in cooperation with Ardenia. Therefore Rigalia asked for the mutual legal assistance and supposed that the principle of "dual criminality" does not prevent Ardenia for providing such assistance.

B. Ardenia was obliged to provide legal assistance but did not respond to Rigalia's MLA request

Alleged accusations of bribery of foreign public officials need to be investigated lawfully. According to the article 9 para.1 of the OECD Convention:

Each Party shall, to the fullest extent possible provide prompt and effective legal assistance to another Party for the purpose of criminal investigations and proceedings brought by a Party concerning offences within the scope of this Convention. The requested Party shall inform the requesting Party, without delay, of any additional information or documents needed to support the request for assistance and, where requested, of the status and outcome of the request for assistance.[68]

Therefore taking into consideration that Respondent's interests were undoubtedly infringed and that MDI is an Ardenian state-owned corporation, Rigalia demanded to provide proper information and initiate an inquiry by the Ardenian officials and its NCP.

Ardenia did not provide the information and dropped the investigation on the following announced grounds. First, Ardenian legislation did not allow the authorities to access certain information on bank records. This excuse is not valid because the para.2 of article 9 of the OECD Convention states that "[a] party shall not decline to render mutual legal assistance for criminal matters within the scope of this Convention on the ground of bank secrecy.”[69] Therefore Ardenia should not elude the obligations to provide the requested information on bank records and should examine its legislation for compliance to the OECD Anti-Bribery Convention.

Second, National security reasons and a concern over the cost of the investigation could have resulted in the loss of hundreds of jobs and millions of dollars for Ardenian industry as an Ardenian prosecutor Sam Strong and president Arwen explained.[70] Article 5 of the OECD Anti-Bribery Convention states that investigations shall not be influenced “[b]y considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”[71] Although this treaty has no explicit national security exception this issue seems to have the “multitudinous and constrained character.”[72] Therefore under the Convention it is rather clear that the investigation could not be dropped on the grounds of economical, political or any related interest, although national security exception is quite arguable especially pertaining to this case.

Besides it became known that influential judges, members of parliament, and officials of the Ardenian government were strongly influenced by MDI, were invited to lavish receptions and other events in order to drop the inquiry.[73] Consequently the investigation was officially dropped so as to “for national security reasons.”[74] However this reason does not correspond to the facts and in this case national security considerations are being replaced by concerns of a political nature. Therefore the statements alleged by the Ardenian government officials are either invalid.

Third, the applicant did not respond to Rigalia’s MLA request to provide the information regarding MDI’s activities in support of the ZRF or any possible financial transactions with Clyde Zangara and the members of the tribal councils, the correspondence between Clyde Zangara or other ZRF high level officers and Leo Bikra (the President of MDI), the correspondence between ZRF representatives and members of the provincial tribal councils.[75] This constitutes a breach of the article 9 of the OECD Convention according to which "[e]ach Party shall, to the fullest extent possible under its laws ... provide prompt and effective legal assistance to another Party for the purpose of criminal investigations ... brought by a Party concerning offences within the scope of this Convention... against a legal person."[76] The requested information was relevant and necessary for the investigation so it was the Applicant's obligation to provide it and the Applicant unfairly failed to do so.

Therefore those requests comply with the OECD Anti-Bribery Convention, which states that "[e]ach Party shall, to the fullest extent possible under ... relevant treaties and arrangements, provide prompt and effective legal assistance to another Party for the purpose of criminal investigations and proceedings brought by a Party concerning offences ... The requested Party shall inform the requesting Party, without delay, … of the status and outcome of the request for assistance."[77] That obliges Ardenia to provide the MLA because this information can prove or disapprove the bribery charges.

Date: 2015-12-17; view: 747