ICC Anti-corruption Clause

No. 740E

ISBN : 978-92-842-0175-4

This ICC Anti-corruption Clause (the ‘Clause’), is intended to apply to any contract that incorporates it either by reference or in full. While parties to a contract are encouraged to incorporate the Clause into their contract by its full name, it is anticipated that any reference in the contract to the ‘Clause’ or related variations shall, in the absence of evidence to the contrary, be deemed to be a reference to the ICC Anticorruption Clause.

The general aim of the Clause is to provide parties with a contractual provision that will reassure them about the integrity of their counterparts during the pre-contractual period as well as during the term of the contract and even thereafter.

Three options are possible: either a short text with the technique of incorporation by reference of Part I of the ICC Rules on Combating Corruption 2011 (Option I) or the incorporation of the full text of the same Part I of the ICC Rules on Combating Corruption 2011 in their contract (Option II), or a reference to a corporate compliance programme, as described in Article 10 of the ICC Rules on Combating Corruption (Option III).

Where Options I and II have been chosen, if a party fails materially or on several repeated occasions to comply with the anti-corruption provisions incorporated in the contract, the non-complying party will be given the opportunity to remedy the non-compliance. Such party will also have the opportunity to invoke as a defence that it has put into place adequate anti-corruption preventive measures. In the absence of the non-complying party taking remedial action, or if remedial action is not possible and no defence is effectively invoked, the other party may suspend or terminate the contract, at its discretion.

Any entity, whether an arbitral tribunal or other dispute resolution body, rendering a decision in accordance with the dispute resolution provisions of the contract, shall have the authority to determine the contractual consequences of any alleged non-compliance with the Clause.

Code ISBN : 978-92-842-0175-4
Number of pages : 21
Publishing date : 2012-02-01
Language : English

Foreword

Introductory Note on the Application and the General Purpose and Structure of the Clause

  • The ICC Anti-corruption Clause

A. Option I: Incorporation by reference of Part I of the ICC Rules on Combating Corruption 2011

B. Option II: Incorporation in full of Part I of the ICC Rules on Combating Corruption 2011

C. Option III: Reference to a corporate anti-corruption compliance programme, as described by Article 10 in the 2011 Rules

Commentary on the ICC Anti-corruption Clause

  • Options I and II

Paragraph 1: Non-corruption undertaking covering the pre-contractual period

  1. The ICC Anti-corruption Clause aims at creating trust between Parties
  2. Which are the Corrupt Practices covered by Paragraph 1?
  3. Is Paragraph 1 referring to even the smallest undue advantages?
  4. Which ‘reasonable preventive measures’ have to be taken by the Parties with respect to their intermediaries?
  5. To which circumstances is the undertaking of Paragraph 1 applicable?

Paragraph 2: Non-corruption undertaking covering the period after execution of the Contract (contractual and post-contractual periods)

  1. The term of the Parties’ non-corruption undertaking
  2. Paragraph 2 contains a provision for incorporation either by reference or in full
  3. The nature of the Parties’ undertaking

Paragraph 3: Non-compliance, remedial action and sanctions

  1. Non-compliance with Part I of the ICC Rules
  2. Possible remedial action
  3. Invoking the defence of adequate anti-corruption preventive measures
  4. Evidence of non-compliance
  5. Audit right
  6. Sanctions

Paragraph 4: Dispute resolution

Option III .

Paragraph 1: Corporate compliance programmes

  1. Corporate compliance programmes, as described in Article 10 of the ICC Rules
  2. Putting into place a corporate compliance programme
  3. Designation of a qualified corporate representative

Paragraph 2: Deficiencies in a qualified corporate representative’s statement, remedial action and sanctions

  1. Deficiencies in a qualified corporate representative’s statement
  2. Remedial action
  3. Other Commentary

Paragraph 3: Dispute resolution

Annex I: Part I of the ICC Rules on Combating Corruption 2011

Annex II: Article 10 of the ICC Rules on combating Corruption 2011

Selected ICC Publications

Prepared by the ICC Commission on Corporate Responsibility and Anti-corruption, and the Commission on Commercial Law and Practice