Incoterms_® and Commercial Contracts

Prepared by the ICC Commission on Corporate Responsibility and Anti-corruption

The 2011 edition of the ICC Rules for Combating Corruption consists of three parts:

• Part I states the Rules proper;
• Part II deals with policies which Enterprises should enact to support compliance with the Rules;
• Part III lists the suggested elements of an effective corporate compliance programme.

First published in 1977 by ICC
Copyright © 2011
International Chamber of Commerce (ICC)
All rights reserved.

ICC holds all copyright and other intellectual property rights in this collective work. No part of this collective work may be reproduced, distributed, transmitted, translated or adapted in any form or by any means, except as permitted by law,without the written permission of ICC.

Permission can be requested from ICC through pub@iccwbo.org.

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Preface

Jean-Guy Carrier, ICC Secretary General,

François Vincke, Vice-chair of the ICC Commission on Corporate Responsibility and Anti-corruption, and

Jean-Pierre Méan, Chair of the Task Force on the Revision of the ICC Rules on Combating Corruption

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The International Chamber of Commerce (ICC) has always been at the forefront of the drive for more integrity in business transactions, because only a corruption-free system makes it possible for all participants to compete on a level playing field.

ICC emphasizes the critical role of compliance by enterprises with self-imposed rules, while recognizing the basic responsibility of international organizations and national governments in the fight against all corrupt practices, including extortion, solicitation and bribery.

Enterprises’ adherence to strict rules will help them fulfil their legal obligations in a more natural, effective and sustainable way. The adoption and implementation by businesses of their own corporate compliance programmes is therefore strongly recommended, as it is made compulsory in an increasing number of jurisdictions.

ICC was the first business organization to issue anti-corruption rules with the publication as early as 1977 of its Rules of Conduct to Combat Extortion and Bribery. It has updated these Rules in 1996, 1999, and 2005 to reflect the adoption of key international legal instruments, such as the Convention on Combating Bribery of Foreign Public Officials (1997) of the Organisation for Economic Cooperation and Development and the United Nations Convention on Corruption (2003). These instruments, which are major milestones in the fight against corruption, have been actively supported in their adoption, implementation and enforcement by the business community. ICC will continue to actively contribute to these organisations’ anti-corruption programmes.

The present 2011 revision of the ICC Rules on Combating Corruption mirror-images the impressive evolution of the ethics and compliance practice of leading enterprises. It is based on numerous contributions made by ICC national committees, member companies and experts of the Commission on Corporate Responsibility and Anti-corruption. It provides a compliance model applicable to large, medium and small-sized enterprises. It builds on other documents ICC has prepared such as the ICC Handbook “Fighting Corruption, a Corporate Practices Manual” and on various ICC Guidelines on specific integrity matters.

Fighting corruption, which is at the core of corporate responsibility and good corporate governance, is never finished. Sustained efforts will continue to be necessary in the future. A better awareness is necessary among public officials, in board rooms and in all layers of the corporate world. ICC is committed to continue to bring its contribution to this daunting task.
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Introduction

These ICC Rules are intended as a method of self-regulation by business against the background of applicable national law and key international legal instruments. Their voluntary acceptance by Enterprises will promote high standards of integrity in business transactions, whether between Enterprises and public bodies or between Enterprises themselves. These Rules play an important role in assisting Enterprises to comply with their legal obligations and with the numerous anti-corruption initiatives at the international level. They also provide an appropriate basis for resisting attempts at extortion or solicitation of bribes.

These Rules are of a general nature constituting what is considered good commercial practice. They reflect, and should be read in accordance with the key international legal instruments […].

All Enterprises should conform to the applicable laws and regulations of the countries in which they are established and where they operate, and should observe both the letter and the spirit of these Rules.

ICC Model Contracts contain references to Part I of the present Rules. Enterprises are equally urged to incorporate, in full or by reference, Part I of the present Rules in their commercial contracts, in order to prevent their contractual relationships from being affected by any form of corruption.

Enterprises are advised to collaborate with each other as well as with relevant international, regional and sectorial initiatives to promote and develop the practices reflected in these Rules; they are further encouraged to cooperate with national and foreign law enforcement authorities conducting corruption related investigations. Enterprises are also urged to resist extortion or solicitation for bribes e.g. by using tools such as RESIST […].

For the purposes of these Rules, the term “Enterprise” refers to any person or entity engaged in business and other economic activities, whether or not organized for profit, including any entity controlled by a state or a territorial subdivision thereof; it includes a parent and its controlled subsidiaries. Although these Rules do not differentiate according to the size of an Enterprise or the nature of its activities, their implementation will have to be adapted according to a risk assessment and notably to the nature of the business conducted by small and medium size Enterprises. The success of these ICC Rules will depend on the “tone at the top”: there should be a clear message from the Chair of the Board of Directors (or other body with ultimate responsibility for the Enterprise) and/or the Chief Executive Officer of the Enterprise that corruption is prohibited and that an effective corporate compliance programme will be implemented. Buy-in by all employees of the Enterprise is also essential.

These ICC Rules consist of three parts. Part I states the Rules proper, Part II deals with policies which Enterprises should enact to support compliance with the Rules and Part III lists the suggested elements of an effective corporate compliance programme. […].

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Part I – Anti-Corruption Rules

Article 1
Prohibited Practices

Enterprises will prohibit the following practices at all times and in any form, in relation with

• a public official at international, national or local level,
• a political party, party official or candidate to political office, and
• a director, officer or employee of an Enterprise,

whether these practices are engaged in directly or indirectly, including through Third Parties:

1. Bribery is the offering, promising, giving, authorizing or accepting of any undue pecuniary or other advantage to, by or for any of the persons listed above or for anyone else in order to obtain or retain a business or other improper advantage, e.g. in connection with public or private procurement contract awards, regulatory permits, taxation, customs, judicial and legislative proceedings.Bribery often includes (i) kicking back a portion of a contract payment to government or party officials or to employees of the other contracting party, their close relatives, friends or Business Partners or (ii) using intermediaries such as agents, subcontractors, consultants or other Third Parties, to channel payments to government or party officials, or to employees of the other contracting party, their relatives, friends or Business Partners.
2. Extortion or Solicitation is the demanding of a bribe, whether or not coupled with a threat if the demand is refused. Enterprises will oppose any attempt of extortion or solicitation and are encouraged to report such attempts through available formal or informal reporting mechanisms, unless such reporting is deemed to be counter-productive under the circumstances.
3. Trading in Influence is the offering or solicitation of an undue advantage in order to exert an improper, real, or supposed influence with a view of obtaining from a public official an undue advantage for the original instigator of the act or for any other person.
4. Laundering the proceeds of the corrupt practices mentioned above is the concealing or disguising the illicit origin, source, location, disposition, movement or ownership of property, knowing that such property is the proceeds of crime.

“Corruption” or “Corrupt Practice(s)” as used in these Rules shall include Bribery, Extortion or Solicitation, Trading in Influence and Laundering the proceeds of these practices.

Article 2
Third Parties

With respect to Third Parties subject to the control or determining influence of the Enterprise, including but not limited to agents, business development consultants, sales representatives, customs agents, general consultants, resellers, subcontractors, franchisees, lawyers, accountants
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or similar intermediaries, acting on the Enterprise’s behalf in connection with marketing or sales, the negotiation of contracts, the obtaining of licenses, permits or other authorizations, or any actions that benefit the Enterprise or as subcontractors in the supply chain, Enterprises should:

• instruct them neither to engage nor to tolerate that they engage in any act of corruption;
• not use them as a conduit for any corrupt practice;
• hire them only to the extent appropriate for the regular conduct of the Enterprise’s business; and
• not pay them more than an appropriate remuneration for their legitimate services.

Part II – Corporate Policies to Support Compliancewith the Anti-Corruption Rules

Article 3
Business Partners

Business Partners include (i) Third Parties and (ii) joint venture and consortium partners as well as contractors and suppliers.

1. An Enterprise should, with respect to a Third Party, and to the extent that it is within its power:
1. make clear that it expects all activities carried out on the Enterprise’s behalf to be compliant with its policies; and
2. enter into a written agreement with the Third Party:
   • informing it of the Enterprise’s anti-corruption policies and committing it not to engage in any corrupt practice;
   • permitting the Enterprise to request an audit of the Third Party’s books and accounting records by an independent auditor to verify compliance with these Rules; and
   • providing that the Third Party’s remuneration shall not be paid in cash and shall only be paid in (i) the country of incorporation of the Third Party, (ii) the country where its headquarters are located, (iii) its country of residence or (iv) the country where the mission is executed.
2. The Enterprise should further ensure that its central management has adequate control over the relationship with Third Parties and in particular maintains a record of the names, terms of engagement and payments to Third Parties retained by the Enterprise in connection with transactions with public bodies and state or private Enterprises. This record should be available for inspection by auditors and by appropriate, duly authorized governmental authorities under conditions of confidentiality.
3. An Enterprise should, with respect to a joint venture or consortium, take measures, within its power, to ensure that a policy consistent with these Rules is accepted by its joint venture or consortium partners as applicable to the joint venture or consortium.
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4. With respect to contractors and suppliers, the Enterprise should take measures within its power and, as far as legally possible, to ensure that they comply with these Rules in their dealings on behalf of, or with the Enterprise, and avoid dealing with contractors and suppliers known or reasonably suspected to be paying bribes.
5. An Enterprise should include in its contracts with Business Partners a provision allowing it to suspend or terminate the relationship, if it has a unilateral good faith concern that a Business Partner has acted in violation of applicable anti-corruption law or of Part I of these Rules.
6. An Enterprise should conduct appropriate due diligence on the reputation and the capacity of its Business Partners exposed to corruption risks to comply with anti-corruption law in their dealings with or on behalf of the Enterprise.
7. An Enterprise should conduct its procurement in accordance with accepted business standards and to the extent possible in a transparent manner.

Article 4
Political and Charitable Contributions and Sponsorships

1. Enterprises should only make contributions to political parties, party officials and candidates in accordance with applicable law and public disclosure requirements. The amount and timing of political contributions should be reviewed to ensure that they are not used as a subterfuge for corruption.
2. Enterprises should take measures within their power to ensure that charitable contributions and sponsorships are not used as a subterfuge for corruption. Charitable contributions and sponsorships should be transparent and in accordance with applicable law.
3. Enterprises should establish reasonable controls and procedures to ensure that improper political and charitable contributions are not made. Special care should be exercised in reviewing contributions to organizations in which prominent political figures, or their close relatives, friends and Business Partners are involved.

Article 5
Gifts and Hospitality

Enterprises should establish procedures covering the offer or receipt of gifts and hospitality in order to ensure that such arrangements (a) comply with national law and applicable international instruments; (b) are limited to reasonable and bona fide expenditures; (c) do not improperly affect, or might be perceived as improperly affecting, the recipient’s independence of judgement towards the giver; (d) are not contrary to the known provisions of the recipient’s code of conduct; and (e) are neither offered or received too frequently nor at an inappropriate time.
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Article 6
Facilitation Payments

Facilitation payments are unofficial, improper, small payments made to a low level official to secure or expedite the performance of a routine or necessary action to which the payer of the facilitation payment is legally entitled.

Facilitation payments are prohibited in most jurisdictions.

Enterprises should, accordingly, not make such facilitation payments, but it is recognized that they may be confronted with exigent circumstances, in which the making of a facilitation payment can hardly be avoided, such as duress or when the health, security or safety of the Enterprise’s employees are at risk.

When a facilitation payment is made under such circumstances, it will be accurately accounted for in the Enterprise’s books and accounting records.

Article 7
Conflicts of Interests

Conflicts of interests may arise when the private interests of an individual or of his/her close relatives, friends or business contacts diverge from those of the Enterprise or organization to which the individual belongs.

These situations should be disclosed and, wherever possible, avoided because they can affect an individual’s judgment in the performance of his/her duties and responsibilities. Enterprises should closely monitor and regulate actual or potential conflicts of interests, or the appearance thereof, of their directors, officers, employees and agents and should not take advantage of conflicts of interests of others.

If their contemplated activity or employment relates directly to the functions held or supervised during their tenure, former public officials shall not be hired or engaged in any capacity before a reasonable period has elapsed after their leaving their office. Where applicable, restrictions imposed by national legislation shall be observed.

Article 8
Human Resources

Enterprises should ensure that:

1. human resources practices, including recruitment, promotion, training, performance evaluation, remuneration, recognition and business ethics in general, reflect these Rules;
2. no employee will suffer retaliation or discriminatory or disciplinary action for reporting in good faith violations or soundly suspected violations of the Enterprise’s anti-corruption policy or for refusing to engage in corruption, even if such refusal may result in the Enterprise losing business;
3. key personnel in areas subject to high corruption risk should be trained and evaluated regularly; the rotation of such personnel should be considered.

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Article 9
Financial and Accounting

Enterprises should ensure that:

1. all financial transactions are adequately identified and properly and fairly recorded in appropriate books and accounting records available for inspection by their Board of Directors or other body with ultimate responsibility for the Enterprise, as well as by auditors;
2. there are no “off the books” or secret accounts and no documents may be issued which do not fairly and accurately record the transactions to which they relate;
3. there is no recording of non-existent expenditures or of liabilities with incorrect identification of their objects or of unusual transactions which do not have a genuine, legitimate purpose;
4. cash payments or payments in kind are monitored in order to avoid that they are used as substitutes for bribes; only small cash payments made from petty cash or in countries or locations where there is no working banking system should be permitted;
5. no bookkeeping or other relevant documents are intentionally destroyed earlier than required by law;
6. independent systems of auditing are in place, whether through internal or external auditors, designed to bring to light any transactions which contravene these Rules or applicable accounting rules and which provide for appropriate corrective action if the case arises;
7. all provisions of national tax laws and regulations are complied with, including those prohibiting the deduction of any form of bribe payment from taxable income.

PART III - Elements of an Efficient Corporate Compliance Programme

Article 10
Elements of a Corporate Compliance Programme

Each Enterprise should implement an efficient Corporate Compliance Programme (i) reflecting these Rules, (ii) based on the results of a periodically conducted assessment of the risks faced in the Enterprise’s business environment, (iii) adapted to the Enterprise’s particular circumstances and (iv) with the aim of preventing and detecting Corruption and of promoting a culture of integrity in the Enterprise.

Each Enterprise should consider including all or part of the following good practices in its programme. In particular, it may choose, among the items listed hereunder, those measures which it considers most adequate to ensure a proper prevention against Corruption in its specific circumstances, no such measure being mandatory in nature:

1. expressing a strong, explicit and visible support and commitment to the Corporate Compliance Programme by the Board of Directors or other body with ultimate responsibility for the Enterprise and by the Enterprise’s senior management (“tone at the top”);
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2. establishing a clearly articulated and visible policy reflecting these Rules and binding for all directors, officers, employees and Third Parties and applying to all controlled subsidiaries, foreign and domestic;
3. mandating the Board of Directors or other body with ultimate responsibility for the Enterprise, or the relevant committee thereof, to conduct periodical risk assessments and independent reviews of compliance with these Rules and recommending corrective measures or policies, as necessary. This can be done as part of a broader system of corporate compliance reviews and/or risk assessments;
4. making it the responsibility of individuals at all levels of the Enterprise to comply with the Enterprise’s policy and to participate in the Corporate Compliance Programme;
5. appointing one or more senior officers (full or part time) to oversee and coordinate the Corporate Compliance Programme with an adequate level of resources, authority and independence, reporting periodically to the Board of Directors or other body with ultimate responsibility for the Enterprise, or to the relevant committee thereof;
6. issuing guidelines, as appropriate, to further elicit the behavior required and to deter the behavior prohibited by the Enterprise’s policies and programme;
7. exercising appropriate due diligence, based on a structured risk management approach, in the selection of its directors, officers and employees, as well as of its Business Partners who present a risk of corruption or of circumvention of these Rules;
8. designing financial and accounting procedures for the maintenance of fair and accurate books and accounting records, to ensure that they cannot be used for the purpose of engaging in or hiding of corrupt practices;
9. establishing and maintaining proper systems of control and reporting procedures, including independent auditing;
10. ensuring periodic internal and external communication regarding the Enterprise’s anti-corruption policy;
11. providing to their directors, officers, employees and Business Partners, as appropriate, guidance and documented training in identifying corruption risks in the daily business dealings of the Enterprise as well as leadership training;
12. including the review of business ethics competencies in the appraisal and promotion of management and measuring the achievement of targets not only against financial indicators but also against the way the targets have been met and specifically against the compliance with the Enterprise’s anti-corruption policy;
13. offering channels to raise, in full confidentiality, concerns, seek advice or report in good faith established or soundly suspected violations without fear of retaliation or of discriminatory or disciplinary action. Reporting may either be compulsory or voluntary; it can be done on an anonymous or on a disclosed basis. All bona fide reports should be investigated;
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14. acting on reported or detected violations by taking appropriate corrective action and disciplinary measures and considering making appropriate public disclosure of the enforcement of the Enterprise’s policy;
15. considering the improvement of its Corporate Compliance Programme by seeking external certification, verification or assurance; and
16. supporting collective action, such as proposing or supporting anti-corruption pacts regarding specific projects or anti-corruption long term initiatives with the public sector and/or peers in the respective business segments.

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