This month I wanted share an article I recently found on the OECD Foreign Bribery Report, written by Richard Bistrong. Mr. Bistrong is a former international sales executive who himself was convicted of bribery and debarred, and Mr. Bistrong spent 14 ½ months in prison. Prior to his conviction, Mr. Bistrong acted as a government witness and participated in covert cooperation to uncover Foreign Corrupt Practices Act and other export violations.
Of the 427 cases used by the OECD (Organisation for Economic Co-operation and Development) as a data set, only two cases resulted in debarment, one of which was Mr. Bistrong. From Mr. Bistrong’s perspective, a debarred person, debarment is both a fair and appropriate measure. As such he questions why it is not used more frequently. Mr. Bistrong cites to Professor Brandon Garrett of the University of Virginia, who argues prosecutors and regulators want to avoid debarring companies as they are effectively death penalties for the company. Mr. Bistrong argues more of these cases should end in debarment as it is a valuable tool for governments. The OECD report itself encourages countries to debar entities and individuals that have bribed foreign public officials.
So why does it appear this tool has been used so infrequently? There are several potential reasons. First, prosecution for foreign bribery and debarment itself has experienced a resurgence of popularity in the last decade. The OECD report demonstrates a spike in foreign bribery between 2007 and 2013 with a peak in 2011. Debarment in the United States has existed in some form since the Civil War, but the current form was established in the late 1980s. Other countries have recently developed models for a debarment regime or updated their existing models. The timeframe the OECD used (1999-2014) captured the rise in debarment popularity. Even given that change in conditions, two is still a low number.