Nicola Bonucci
Former OECD Director for Legal Affairs, Paris

Juliana Maia Daniel
Berardo Lilla Advogados, São Paulo
juliana@berardo.adv.br

For a quarter of a century, the enforcement architecture of the Organisation for Economic Co-operation and Development’s (OECD) Anti-Bribery Convention rested on an unstated assumption. Whatever else varied among the 46 parties involved, one of them would set the pace and the system could then be organised around that lead. That assumption no longer holds, and it gave way at a singular moment, just as the Working Group on Bribery sat down to design Phase 5 of its peer review mechanism. In June 2026, the Working Group convened a meeting of business representatives, defence practitioners, academics and civil society organisations in Paris to inform that design process, following the gathering of written submissions between 22 April and 25 May. The authors took part in that exercise. This article records what was argued and what was heard, with the discussions reported in general terms and without attribution.

The timing is not incidental. Enforcement under the Convention has always been concentrated in a limited number of parties, and the US, historically the most active among them, has visibly reduced both its foreign bribery caseload and its engagement with the Working Group over the past year and a half. Until now, the credibility of the level playing field rationale rested in large part on the willingness of major exporting states to sanction their own companies and, as that willingness has become uneven, monitoring can no longer assume a stable enforcement core.

Whether a more distributed pattern consolidates in its place is still an open question. The prosecutorial taskforce announced by the British, French and Swiss authorities in March 2025 remains as a framework for cooperation rather than a source of joint cases and its members concede that it creates no shared jurisdiction and will continue to operate based on mutual legal assistance. The surrounding resolution activity is more telling. France closed a resolution coordinated with the Estonian and Ukrainian authorities in late 2025, the United Kingdom agreed its first foreign bribery deferred prosecution agreement in five years in May 2026 and Swiss corporate enforcement has continued apace. The direction is discernible, but the model is untested.

The Working Group, for its part, is candid about its constraints. Budgets are tight, several parties report fatigue from overlapping reviews by different international bodies and any proposal that adds permanent structures competes for resources that do not exist. Therefore, our suggestions favoured low-cost, high-leverage adjustments over the creation of new institutional layers.

A competition instrument before anything else

Our first point is one of framing. Foreign bribery is not only an integrity problem but fundamentally a competition problem. The Convention exists so that companies win contracts on merit, innovation and efficiency rather than on their willingness to pay, and enforcement protects compliant exporters from competitors that buy business. In a political environment where several governments reason primarily in terms of national economic interest, that rationale travels further than compliance messaging alone, and it offers the most plausible route back for parties that have deprioritised enforcement. Presented in these terms, the Convention is an instrument of competitiveness rather than a constraint upon it, and we argued that this message belongs at the centre of how the Working Group communicates the results of Phase 5.

We are aware that this framing cuts both ways, and the objection deserves to be met rather than avoided. The recent US retrenchment was itself justified in the language of competitiveness, based on the theory that vigorous foreign bribery enforcement handicaps a country’s own exporters. That is the competitiveness argument in its unilateral form, and it is the older of the two. It is the reasoning that prevailed everywhere before 1997, when the US, then the only country policing its own companies abroad, pressed for a multilateral convention precisely so that compliance would no longer be a competitive disadvantage. A party that softens enforcement to favour its national champions does not escape that logic. It restores the collective action problem the Convention was designed to solve and invites every other party to follow. The drafters saw this coming, and Article 5 provides that investigation and prosecution shall not be influenced by considerations of national economic interest. The level playing field is not a by-product of enforcement but a collective good that survives only if each party policies its own side. That should be the answer the Working Group gives when the language of competitiveness is turned against the Convention itself.

Monitoring trajectories rather than reputations

Phase 4 has already moved towards a tailored approach and there is broad support for taking differentiation further. Our caveat concerns the baseline. Calibration should track each party’s current enforcement trajectory rather than its historical standing, because maturity is not permanence. Recent experience shows that an established enforcer can retrench and, in some cases, quickly, and a lighter touch granted based on the strength of past performance relaxes scrutiny precisely where it has become most necessary.

The point has a structural counterpart in data. The monitoring process leans heavily on enforcement statistics self-reported by the parties and that foundation gives way exactly when a party under-enforces or reports selectively. Non-enforcement is far harder to detect than enforcement, and it appears in formal statistics only with a lag. Stakeholder and open-source inputs, from media-based case tracking to civil society monitoring and practitioner observation, allow the Working Group to triangulate what governments report and to spot stagnation or retreat independently of the party concerned. That is one reason we argued for engagement with business, the bar, private sector, academia and civil society throughout the monitoring cycle rather than during country visits alone, and for giving that engagement a concrete form.

The mechanism does not need to be invented. The OECD already works through designated interlocutors, as it does through Business at OECD on the employer side, and the Working Group has long-standing counterparts in civil society and professions. What is missing, in our view, is increased regularity. Each constituency could name a focal point, within organisations that already exist, such as Transparency International, the International Bar Association and academic networks, through which practitioner observations, case tracking and implementation concerns would reach the Secretariat at fixed points in the cycle, for instance ahead of each plenary, in a common format that makes submissions comparable across parties and over time. A channel of this kind creates no new body and no meaningful budget line, and the focal point would aggregate and transmit rather than adjudicate, which preserves the Working Group’s exclusive ownership of the assessment. It also answers a concern that surfaced during the consultation. Stakeholders who fear retaliation for reporting enforcement failures are better protected by routing information through an institutional intermediary than approaching the authorities alone.

From legal frameworks to enforcement outcomes

Most parties now have legislation broadly consistent with the Convention, so the marginal value of reviewing statutory texts has fallen. What remains uneven is what enforcement produces, and that is where we suggested Phase 5 concentrate, on the quality and duration of investigations, the implementation of prior recommendations, remediation and disgorgement outcomes and the results of international cooperation. We also propose a forward-looking component according to which each party would identify its priorities, reforms and enforcement objectives for the next cycle. Asking what a country intends to do, and not only what it has done, tends to elicit more proactive engagement and creates a benchmark against which the following review can measure delivery. This idea, however, carries its own caveat. Future commitments are easy to state and difficult to test, and the Working Group’s distinctive value lies in retrospective scrutiny of what parties actually did. A forward-looking layer earns its place as a supplement to that rigor, but never as a substitute for it.

The blind spots

Part of the elements we raised concerned what the current rounds do not see. Monitoring remains heavily supply side, while bribe solicitation and demand-side conduct are rarely self-reported and the High-Level Reporting Mechanism remains underused. Professional enablers in the legal, accounting and corporate service sectors deserve the same sustained attention, since few significant schemes are built without them, as do beneficial ownership opacity and the recurring high-risk settings of public procurement, state-owned enterprises and defence.

The hardest questions, in our view, concern cross-border coordination. The multijurisdictional resolution model grew up around a single coordinating authority capable of anchoring global settlements, and nobody yet knows how coordinated outcomes function when no party performs that role. The Working Group’s May 2026 paper on sanctioning foreign bribery through multijurisdictional resolutions begins to frame the problem. Penalty allocation, credit for amounts paid elsewhere, recognition of foreign resolutions, ne bis in idem and the familiar obstacles of privilege and data protection in evidence sharing will help to decide whether the distributed enforcement now emerging produces coherent results or duplicative and inconsistent ones. Whether Phase 5 treats these questions as core monitoring material or as a specialist annex may prove the most consequential design choice of the cycle.

What the room added

Several themes from the discussion deserve recording. Participants noted that information about the Working Group and about the monitoring process itself is not easy to find, and that enforcement data would be considerably more useful if published disaggregated by year. There were calls to bring civil society closer to the Working Group’s work, to engage constituencies beyond the traditional anti-corruption community, including those working on human rights and environmental issues, and to use online formats to make engagement more frequent than the physical review calendar allows.

One sobering point concerned the exposure of stakeholders who provide information on enforcement failures and who, in some jurisdictions, face a genuine risk of retaliation. A redesign of stakeholder participation that ignores that risk will simply not receive candid input. On the output side, shorter executive summaries, thematic reports on recurring challenges and a more developed version of the Working Group’s pilot country monitoring dashboard would extend the reach of work that is technically strong but only read by a narrow specialist audience. Comparative country snapshots drew more caution, since they are readily read as league tables, which parties resist and which can be gamed. Thematic comparison captures most of the benefit at a fraction of the diplomatic cost.

Why this matters in practice

Three consequences are worth taking back to clients and to daily practice. The first is that the expectation of a robust corporate compliance programme does not rise and fall with the enforcement appetite of any single party. It is anchored in international convergence around adequate procedures and compliance defences, and in the growing number of authorities capable of bringing a case. Advising disinvestment in compliance because one enforcer has softened misreads the direction of travel.

The second is that practitioners handling cross-border internal investigations should monitor how Phase 5 addresses the recognition and coordination of resolutions, because the treatment of penalty offsets, cooperation credits and ne bis in idem in the next monitoring cycle will shape the negotiating environment for every future multijurisdictional settlement.

The third is an opportunity. The consultation confirmed a real appetite within the Working Group for periodic input through existing professional networks, and bar associations are well-placed to serve as that channel. Contributions need not wait for a country review, and members with experience of enforcement on the ground, in any of the 46 parties, have something concrete to offer.

The design of Phase 5 will be settled over the coming months, in a complex enforcement environment. That is not an easy moment to redraw the architecture of monitoring, but it is also the only moment in which redrawing it is possible, since these frameworks are rarely revisited. The Working Group now has an opportunity to set new standards for scrutiny under the monitoring system. Building on the knowledge and know-how accumulated in the first Phase 4, the Phase 5 should be more granular, more tailored to the key specific issues already identified and more action oriented. Practitioners spend their careers working within these instruments and are rarely in the room when they are designed, it is a real challenge, but it is also golden opportunity for them. In June, the Working Group opened that room, and what follows runs in both directions. For the Working Group, the test is whether stakeholder input leaves a visible mark on the design of Phase 5. For those of us consulted, it is whether that engagement outlasts the consultation.