A/HRC/44/43
60.
As at March 2020, nearly 80 per cent of the 890 corruption cases concluded under
the OECD anti-bribery convention had been settled through non-trial resolutions.104
Nonetheless, judicial remedy remains an important prevention tool. In 2017, the Working
Group underlined that there were many cases of successful cooperation to investigate and
prosecute economic actors in areas closely linked to human rights, for example
transnational bribery and corruption, and that those cases demonstrated that, with political
will, States could work collectively to combat cross-border harm.105 However, despite
numerous allegations implicating businesses in human rights abuses and international
crimes, investigations and prosecutions against companies were almost non-existent.106 As
this remains the case, law enforcement should increase criminal prosecutions in this area.
Furthermore, offices of the attorney general, or their equivalents, should routinely consider
the seriousness of any alleged corruption’s impact on human rights as an aggravating factor
in decisions concerning how to proceed with a case.
61.
Judicial remedy may be found in civil courts. This might be an effective forum for
obtaining a remedy, as under article 35 of the United Nations Convention against
Corruption, States parties are required to open their courts to actions by victims of
corruption against those responsible for the corruption in order to obtain compensation.107
Seeking civil damages for corruption is a relatively recent phenomenon; it remains to be
seen how domestic law will govern the establishment of causation and proving of damages,
especially for harm to groups or communities. However, article 35 provides for such
principles to be interpreted broadly, without the need for interaction between the perpetrator
of corruption and the victim, or the need for a perpetrator to have foreseen the injury caused
to the victim. The “hidden debt” scandal of Mozambique may be one case where victims
can sue the perpetrators for civil damages in one of many States’ courts,108 possibly through
a class action.
62.
There have been calls for an international anti-corruption court to combat grand
corruption and prevent human rights abuses. 109 Certain States have supported this. While
deliberations continue, this should not detract from achieving judicial remedy.
C.
Non-judicial remedy
63.
The OECD Guidelines for Multinational Enterprises are supported by an
implementation mechanism of national contact points. These are established by the
adhering Governments to promote and implement the Guidelines and assist companies and
stakeholders in furthering the implementation of the Guidelines. They also provide
mediation platforms. National contact points may provide access to remedy in cases
concerning corruption and business and human rights, but this is often undermined by
incoherent policy, insufficient funding, lack of independence and inadequate training.110
Nonetheless, as at February 2020, national contact points had handled 35 cases relating to
combating bribery, bribe solicitation and extortion.111 Once the cases had been considered,
the national contact points tended to focus on following up on human rights and labour
issues. It is still instructive to see the overlaps and the relevance of corruption to cases
lodged with national contact points. National contact points should build capacity with
respect to the links between corruption and human rights. States should ensure that national
104
105
106
107
108
109
110
111
18
See www.oecd.org/corruption/Resolving-Foreign-Bribery-Cases-with-Non-Trial-Resolutions.htm.
A/HRC/35/33, para. 6.
Ibid., para. 87.
See https://lawreview.law.ucdavis.edu/issues/49/2/Symposium/49-2_Ramasastry.pdf.
See https://globalanticorruptionblog.com/2020/02/18/civil-damage-actions-for-corruptionpossibilities-offered-by-the-mozambican-hidden-debt-scandal/.
See www.mitpressjournals.org/doi/abs/10.1162/daed_a_00507 and
https://humanrightscommission.house.gov/events/hearings/international-anti-corruption-court-iaccmitigate-grand-corruption-and-human-rights.
A/74/198, para. 42.
See https://mneguidelines.oecd.org/database/searchresults/?q=(Theme:(Combating%20bribery,
%20bribe%20solicitation%20and%20extortion)).
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