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Activity of International Chamber of Commerce

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Activity of International Chamber of Commerce

The structure of the ICC – institutions of ICC

ICC intervention in economic fields

ICC rules and regulations

ICC activities:

·               Mediation

·               Dispute resolution

·               Advocating open trade

·               Advocating market economy systems

·               Advocating business self-regulation

·               Fighting corruption

·               Combating commercial crime

1. The Institutions of ICC: World Council, National Committees, Executive Boards Finance Committee and International Secretariat

The ICC World Council is a general assembly of a major intergovernmental organization composed of business executives. National committees name delegates to the Council. Ten direct members may be invited to participate. It usually meets twice a year. The Council elects the Chairman and Vice-Chairman for two-year terms. The Council elects the Executive Board on the Chairman's recommendation.

The Secretary General heads the International Secretariat. The Secretary General works with the national committees to carry out ICC's work programs and is appointed by the World Council. The ICC International Secretariat, is based in Paris and is the operational arm of ICC. It carries out the work programme approved by the World Council, feeding business views into intergovernmental organizations.

The Executive Board is responsible for implementing ICC policy. The Executive Board has between 15 and 30 members of both business leaders and ex-officio members. They serve for three years. They have a one third rotation in membership. The Chairman, his immediate predecessor, and the Vice-Chairman form the Chairmanship.

National Committees represent the ICC in their respective countries. They recommend to the ICC their respective national business concerns in its policy recommendations to governments and international organizations. There are established formal ICC structures in over 90 countries. In countries where there is no national committee, companies and organizations such as chambers of commerce and professional associations can become direct members. ICC has unrivalles access to national governments through its network of national committees.

Finance Committee, advices the Executive Board on all financial matters. It reviews the financial implications of ICC's activities and supervises the flow of revenues and expenses of the organization. The Chairman is elected by the ICC World Council.

Commissions develop international and national government initiatives in their subject areas. They also develop business positions for submission to international organizations and governments. Commissions are composed of more than 500 business experts from member companies.

 Dispute Resolution Services

ICC International Court of Arbitration continues to provide the most trusted system of commercial arbitration in the world, having received 14000 cases since its inception in 1923. Over the past decade, the Court's workload has considerably expanded as its reputation for fast, flexible dispute resolution services spreads around the globe. The Court's membership has also grown and now covers 86 countries. With representatives in North America, Latin and Central America, Africa and the Middle East and Asia, the ICC Court has significantly increased its training activities on all continents and in all major languages used in international trade.

In the world of international commerce, the ICC is perhaps best known for its role in promoting and administering international arbitration as a means to resolve disputes arising under international contracts. It is one of the world's premier and leading institutions in providing international dispute resolution services, together with the American Arbitration Association, the London Court of International Arbitration (LCIA), the Singapore International Arbitration Centre (SIAC), and the Stockholm Chamber of Commerce.

It is common for international commercial contracts to provide for an agreed means of resolving any disputes that may arise, and the ICC is one of leading institutions for administering international arbitration. The ICC's dispute resolution services also include ADR procedures such as mediation and expert determinations.

              BASCAP

With the launch of ICC's BASCAP initiative, more than 130 companies and trade associations are now actively engaged in a set of projects designed to defeat the pirates and increase public and political awareness of the economic and social harm caused by this illegal activity. BASCAP is using ICC's global media network and national committee structure to spread the word. BASCAP was launched in 2004 by the then ICC Chairman, Jean-Rene Fourtou, and its an operational platform established by ICC that connects all business sectors and cuts across all national borders, drawing them together to ensure that their message is clearly heard by governments and the public. BASCAP is prepared for a sustained effort to end this scourge. As the only business organization with a truky global reach, ICC is well placed to take the fight against counterfeiting to the level required for action to be effective.

The proliferation of international commercial disputes, many of them involving several parties, is an inevitable by-product of the global economy. Today’s business and operating conditions underscore arbitration’s advantages over litigation, especially in cross-border disputes.

The ICC Rules also lays out world business recommendations on policy action to be taken at national and international level to strengthen the administrative and regulatory framework to fight corruption.

2.2.                    ICC intervention in economic fields

ICC establishes policies in the following economic fields:

- Competition

- Anti-Corruption

- Business in Society

- Banking Technique & Practice

- Arbitration

- Commercial Law & Practice

- Customs & Trade Regulations

- E-business, IT & Telecoms

- Environment & Energy

- Economic Policy

- Financial Services & Insurance

- Marketing & Advertising

- Intellectual Property

- Taxation

- Trade & Investment Policy

- Transport & Logistics

Commission on Arbitration - Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)

The ICC International Court of Arbitration was the initiator and leader of the movement which led to the adoption of the New York Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. The New York Convention is the most important multilateral treaty on international arbitration.

Basically, it requires courts of each contracting state:

- to recognize arbitration agreements in writing and to refuse to allow a dispute to be litigated before them when it is subject to an arbitration agreement; and

- to recognize and enforce foreign arbitral awards.

Before entering into an international arbitration agreement, a party is advised to check whether the states of the other contracting party and, if appropriate, of the place of arbitration, have ratified the New York Convention or have signed other multilateral or bilateral treaties offering the same guarantees.

          Arbitration today

The ICC International Court of Arbitration is the world’s leading institution for resolving international commercial and business disputes.

The total number of cases handled by the Court since it was founded is more than 14,000. In 2005 alone, 521 cases were filed, involving 1,422 parties from 117 countries.

Often the parties are from markedly different national, cultural and legal backgrounds.

They want to avoid litigation because they fear bias by national courts, are unfamiliar with national court procedures and want to be spared damaging publicity. ICC arbitration is an attractive alternative because it is international and confidential. Usually, it is less time-consuming and less expensive than litigation

The Commission on Arbitration aims to create a forum for experts to pool ideas and impact new policy on practical issues relating to international arbitration, the settlement of international business disputes and the legal and procedural aspects of arbitration. The Commission also aims to examine ICC dispute settlement services in view of current developments, including new technologies.[1]

The ICC Commission on Arbitration and its Task Forces and Groups boast over 450 members from over 90 countries, including partners in international law firms, in-house counsels, law professors, experts in different dispute resolution services, and trade executives in member companies and international organizations.

Who can benefit?

You don’t have to be an ICC member to use ICC arbitration. Arbitration agreements are binding and the awards are enforceable in most of the world’s trading nations particularly due to their accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Unlike litigation, arbitration is flexible. The parties to a dispute are entitled to decide what form arbitration should take, even down to the language used in the proceedings.

 Under ICC Rules, the parties can choose the arbitrators, the place of arbitration and which rules of law should apply. They can even indicate a target date for completing the arbitration and estimate approximate costs in advance in full confidence that the Court will exercise control over the choice of the arbitrators, over the procedure, over the costs and over the award.

When negotiating a contract or faced with a business dispute, especially if it involves a partner in another country, you and your lawyer should check out the range of services ICC offers.

More advantages of arbitration

Speed

Arbitral tribunals usually take less time than national courts to reach a final decision, against which recourses are restricted. .

The Court monitors deadlines from start to finish. The Court has the power to step in and replace arbitrators on the rare occasions that they fail to fulfill their obligations. If the parties agree on a fast-track arbitration, cases can be decided within a few months.

 National courts are often congested. They may need between three and five years to resolve a dispute, sometimes even longer.

Cost-effective

The relative speed of arbitration compared with litigation keeps lawyers' costs down. Parties generally pay less in the long run for arbitration than if they take their case to national courts.

 If you are worried about arbitrators dragging out proceedings to pad their fees, forget it. The Court sets ICC fees according to a fixed scale, primarily based on the amount in dispute. Wasting time is not in the arbitrators' financial interest.

 You can get a rough idea of what you will have to spend by using the cost calculator on the Court website. Simply enter the amount in dispute to receive an estimate of administrative and arbitrator fees, which are set by the Court.

 Factors like the place of arbitration and the number of arbitrators influence expenses and may affect the final bill. So your own choices can also keep costs down.

Accessible

ICC arbitration is there for everybody in business. It is accessible to companies of all sizes, not just major corporations in the industrialized countries. Arbitration fits all legal systems and cultures. No one national legal tradition predominates.

 

Confidential

The Court respects your privacy. In contrast with ordinary courtroom proceedings under public and media gaze, ICC does not divulge details of an arbitration case and keeps the identities of the parties completely confidential. So your business remains nobody else's business. Sometimes, of course, parties will publicize an award – but ICC's lips are always sealed. If you wish, you may also enter into a confidentiality agreement with the opposing party as an additional safeguard.

Enforceable awards

ICC arbitration is impartial and respects the dispute settlement parameters set down in the original contract or agreed by the parties. Arbitrators will provide a clear solution.

 In the great majority of cases, parties accept the award spontaneously and there the matter ends. But when parties decide on the place of arbitration, they are well advised to make sure that they choose a country that favours arbitration and court enforcement of arbitral awards. The Guide to the ICC Rules for Expertise having been adopted by the Commission in 2004, the Task Force is presently working on the elaboration of explanatory notes for the use of experts.

 Many bilateral and international conventions recognize arbitral awards. More than 130 countries have adopted the 1958 New York Convention, which provides for the enforcement of foreign awards in those countries that have ratified the Convention.

Following the adoption by the ICC Commission on Arbitration of the revised ICC Rules for Expertise in 2003, and in an effort to try to overcome the lack of awareness surrounding the existence, techniques and requirements of expertise proceedings in the business and legal communities, the Commission on Arbitration voted to create a Task Force whose mandate it is to examine this issue in detail and to produce a set of guidelines for ICC expertise proceedings.

ICC has received numerous requests from users to point out ways in which the ICC Rules of Arbitration can most effectively be used for arbitrating small claims. The time and cost involved in arbitrating such small claims should be commensurate with what is at stake. To assist parties in rationalizing the use of resources in the arbitration of smaller cases, the ICC Commission on Arbitration directed the Task Force on Small Claims to explore ways in which the parties, their counsel and arbitrators can reduce the time and cost of arbitrating these smaller claims under the ICC Rules of Arbitration. In accordance with its mandate, the Task Force has elaborated these guidelines, not as a set of rules for incorporation into contracts, but rather as a list of suggestions. The parties can follow one or more of them, as appropriate to the circumstances of their case.

These guidelines do not define a small claim. The notion of ‘small’ depends very much on the parties and their circumstances. For a large multinational enterprise, a ‘small claim’ may mean anything under a few million US dollars. For a smaller trader entering the international marketplace for the first time, that same claim may represent a very substantial part of its business. On the other hand, a small claim is not necessarily an unimportant claim. A dispute over a relatively small monetary amount may have far-reaching repercussions, or may in fact be a ‘test case’ for a number of similar disputes. In some cases, a small claim will be met with a far larger counter-claim. It is up to the parties to determine in light of their own situation whether the claim is ‘small’ and whether to follow one or more of the suggestions contained in these guidelines. Many of these suggestions can in fact be used by any parties who seek to reduce the cost and time required for an arbitration, even in ‘large’ claims.

The ICC Rules of Arbitration require the Claimant to provide a description of the nature and circumstances of the dispute giving rise to the claims and a statement of the relief sought. For small claims, the Request can be prepared in such a way that it sets out clearly and succinctly the Claimant’s entire case. This enables the Respondent to make a full Answer. The arbitrator thus obtains the fullest possible understanding of the case at the earliest opportunity and is able to draft the Terms of Reference and proceed effectively with the arbitration. A complete Request followed by a complete Answer may result in considerable saving of time, since it may allow the parties to reduce significantly or even dispense with further submissions.

The ICC Rules of Arbitration require the Respondent to provide its comments as to the nature and circumstances of the dispute, and its response to the relief sought. For small claims, the Answer can set out clearly and succinctly a detailed response to the Claimant’s case.

Methods such as those suggested in these guidelines can shorten the procedure and minimize the cost of arbitrating small claims. The parties can agree on one or more of those methods, or the arbitrator can suggest them to the parties. Failing agreement by the parties, an arbitrator may settle on one or more of the methods suggested in these guidelines, e.g. in a procedural order pursuant to Article 15(1) of the ICC Rules of Arbitration. In addition, the Secretariat of the ICC International Court of Arbitration can encourage their use.

The ICC Commission on Competition contributes world business views to governmental and intergovernmental debates on key issues in competition policy facing the international business community.

 The International Competition Network (ICN) was created in October, 2001 to improve worldwide cooperation and enhance convergence in competition policy through dialogue between competition authorities worldwide. As such, the ICN seeks input from its members in order to develop standards and best practices which can be applied consistently across a variety of jurisdictions.

ICN members include national and multinational competition authorities entrusted with the enforcement of antitrust laws. Where the work of the ICN results in consensus on recommendations, or best practices, individual competition authorities are able to decide on the most appropriate implementation strategy.

The ICC Task Force works closely with the ICN to develop a harmonized approach to competition policy that takes into account the perspectives of business. In this respect, the joint ICC/BIAC (Business Industry Advisory Committee) Recommended Framework for Best Practices has contributed substantially to the elaboration of the ICN Recommended Practices for Merger Notification and Review Procedures.

The International Competition Network (ICN) provides antitrust agencies from developed and developing countries with a focused network for addressing practical antitrust enforcement and policy issues of common concern. It facilitates procedural and substantive convergence in antitrust enforcement through a results-oriented agenda and informal, project-driven organization.

The ICN brings international antitrust enforcement into the 21st century. By enhancing convergence and cooperation, the ICN promotes more efficient, effective antitrust enforcement worldwide. Consistency in enforcement policy and elimination of unnecessary or duplicative procedural burdens stands to benefit consumers and businesses around the globe. The International Competition Network (ICN) seeks to provide competition authorities with a specialized yet informal venue for maintaining regular contacts and addressing practical competition concerns. It is focused on improving worldwide cooperation and enhancing convergence through dialogue.

The ICN is unique. It is the only international body devoted exclusively to competition law enforcement. Membership is voluntary and open to any national or multinational competition authority entrusted with the enforcement of antitrust laws. The ICN does not exercise any rule-making function. The initiative is project-oriented, flexibly organized around working groups, the members of which work together largely by Internet, telephone, fax machine and videoconference. Annual conferences and meetings provide opportunities to discuss these projects and their implications for enforcement. Where the ICN reaches consensus on recommendations, or 'best practices', arising from the projects, it is left to the individual competition authorities to decide whether and how to implement the recommendations, through unilateral, bilateral or multilateral arrangements, as appropriate.

Intellectual property and competition

Recently, the relationship between intellectual property and competition law has emerged as a fertile area for further research. The U.S. Federal Trade Commission conducted extensive hearings in this area throughout 2002 and issued a report in October, 2003, entitled “To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy'. The report recommended, among others, changes to the patent system and to patent application evaluation standards to improve patent quality. The FTC is expected to issue a second report focused on competition policy issues.

In the EU, the development of case law and recent reviews of the EC block exemption on technology transfer agreements have also prompted reflection on the intersection between intellectual property and competition policy.

ICC's Commission on Competition is cooperating with ICC's Commission on Intellectual Property to explore these issues.

Inadequate healthcare systems and epidemics of serious diseases have placed significant pressure on governments and on industry to take immediate and effective action. The role of the patent system in making medicines available to needy consumers, particularly in poor countries, has been the subject of intense debate.

In this respect, the linkages between intellectual property rights and public health are being addressed in several fora. In April 2006, the WHO's Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH) issued a report on, among other issues, the importance and effectiveness of intellectual property rights regimes in stimulating research and creation of new medicines for diseases that particularly affect developing countries.

The WTO has also worked to resolve the issue of how the TRIPS agreement can best support public health goals. A decision was taken by WTO members on 6 December 2005 to approve an amendment to the TRIPS Agreement, making permanent the 30 August, 2003 decision by the WTO General Council to remove limitations on exports under compulsory licence to countries that cannot manufacture the pharmaceuticals themselves. This amendment has gone a long way towards resolving the contentious debate relating to the introduction of 'cross border' compulsory licensing in the pharmaceutical sector in order to help poor countries obtain access to critical medicines. The amendment is designed to match as closely as possible the waiver introduced by the 2003 decision and its relationship to the statement read out by the General Council Chair in the context of that decision.

The issue of public health and access to medicines calls for a variety of policies, including those unrelated to intellectual property. The business community has an important perspective to contribute to the discussion, having participated in a number of public-private partnerships, as well as in private sector initiatives for supplying needed drugs to developing countries. Business is also providing free or affordable access to biomedical and healthcare information for institutions in low-income countries through public-private initiatives.

The ICC's Task Force on Development is charged with ensuring that the views of ICC members are heard in discussions carried out by the WTO, the WHO and other organizations involved in the public health debate. In particular, the Task Force desires to ensure that questions of interpretation and implementation of the TRIPS Agreement focus on achieving improvements in public health in developing and least-developed countries without eroding the incentives for innovation afforded by intellectual property rights.

The Commission on Business in Society defines the role of business in the context of globalization and changing societal expectations and articulate messages on issues relating to business in society.

Commercial law and practice

The Commission on Commercial Law and Practice (CLP) facilitates international trade and promotes a fair and balanced self-regulatory and regulatory legal framework for international business-to-business (B2B) transactions.

The ICC Model International Sale Contract is intended to provide a reliable and equitable standard legal platform for the global export-import sector. ICC, as the world business organization, has sought to respond to the need for a set of clear and concise standard contractual conditions which balance the interests of export sellers and import buyers.

A flexible and clear model contract providing directions to sellers and buyers of manufactured goods. This ICC model allows users either to incorporate only the general conditions or to include the specific conditions, which set out standard terms common to all contracts with the ICC General Conditions of Sale. A CD-ROM provides the text of the model, and useful annexes include the Golden Rules of Incoterms and United Nations Convention for the International Sale of Goods. Easy-to-use for first-time traders, but also providing the legal protection demanded by experienced practitioners.

Businesses typically want their contracts to succeed, making a good profit for a good product or service. Events, however, frequently frustrate the best business intentions and a party may find itself in the position of having to default because of events beyond its reasonable control. In the ICC Force Majeure Clause 2003 and in the ICC Hardship Clause 2003, the ICC seeks to provide international traders with ready-made, off the peg, model clauses which parties to international contracts may incorporate into their contracts. The ICC Force Majeure Clause 2003 combines the predictability of listed force majeure events with a general force majeure formula which is intended to catch circumstances which fall outside the listed events. The ICC Hardship Clause 2003 balances businessmens legitimate expectations of performance with the harsh reality that circumstances do change to make performance so hard that the contract simply must change.

The Commission’s work focuses on customs reform and modernization and the implementation of transparent, simplified and harmonized customs policies and procedures to promote high standards of ethics in marketing by business self-regulation through ICC international marketing codes, and to elaborate world business views on government initiatives affecting marketing and consumer protection.

Liberalization

To break down barriers to international business in financial services and insurance, and to contribute to the elaboration of sound self-regulatory and supervisory frameworks.

ICC recognizes that the 1997 Financial Services Agreement was an important first step in achieving trade liberalization and market access in financial services. The Doha Development Agenda provides a unique opportunity for further insurance market liberalization among WTO members.

The arguments in favour of the elimination of restraints on foreign participation in financial services have been well rehearsed and the economic benefits of market access in both developed and developing economies are recognized. Insurance liberalization, successfully managed, will help to attract foreign insurers´ direct investment and drive development in insurance services, in turn spurring sustainable overall economic development and financial security and thus contributing to combat poverty.

 The Doha Development Agenda negotiations should be seen as an opportunity to build on past achievements.

The liberalization of trade in financial services

Liberalization of trade in financial services

This ICC policy statement was prepared by the ICC Commission on Financial Services and Insurance, a specialized ICC working body that examines major policy issues and builds consensus among users, providers and intermediaries of financial and insurance services. This statement complements the general policy recommendations submitted to the WTO by the ICC Commission on Trade and Investment Policy.

The importance ICC attaches to the services sector reflects the economic interests of its members in more than 130 developing and industrialized countries around the globe and the importance they attach to improving market access worldwide.

Services are coming to dominate the economic activities of countries at virtually every stage of development, making services trade liberalization a necessity for the integration of the world economy.

ICC has continued its activist role since the Uruguay Round by providing business advice during the subsequent negotiations on basic telecommunications, financial services, and professional services, each of which advanced the cause of trade liberalization.

ICC recognizes the achievements that have been made in liberalizing trade in financial services through the 1997 WTO agreement in the aftermath of the Uruguay Round and, since then, by individual country initiatives. However, ICC is concerned about most countries’ reluctance so far to commit to further financial services liberalization in the current WTO/GATS negotiations.

As a significant number of barriers remain and many unilateral liberalization measures are not included in countries’ commitments under the 1997 WTO Financial Services Agreement, the ongoing WTO services negotiations should seek to incorporate substantive measure to liberalize trade in financial services into the results of the Doha Development Round. The legal binding of existing as well as ongoing unilateral liberalization measures in the WTO would greatly enhance legal certainty and predictability for trade in financial services.

ICC urges all WTO member countries to recognize that services trade liberalization, complemented by transparency, competition, and regulatory reform are critical to economic growth and stability. In terms of economic importance, services in general and financial services in particular are key sectors for growth and employment in both industrialized and developing countries.

Thus, further liberalization of trade in financial services (i.e., banking, insurance, securities and related services) could make a significant contribution to economic development worldwide.

Moreover, providers, users, and consumers stand to benefit from greater competition, choice, and convenience.

The success of the current negotiations will depend on the active participation of all WTO member countries. Every country must recognize that the elimination of obstacles to trade in financial services will play a critical role in their financial services infrastructures and economies.

ICC encourages industrialized countries to provide technical support to developing countries to help them further develop the legislative, regulatory and human resource requirements, which are key components of efficient markets.

Avoid discriminatory regulation

ICC urges all WTO member countries to reject misuse of financial regulation, by embodying barriers to trade and investment in the financial service sector.

ICC warns that discriminatory limitations on market access that would restrict foreign equity ownership, the number of foreign service providers, the type of legal entity required (for example branches or subsidiaries) and the scope of operations would jeopardize the development of financial markets by inhibiting the advantages brought by foreign competition such as strengthening market efficiency but also by undermining the strength of local service providers.

Movement of capital

While significant liberalization of market access for international financial firms’ local presence should, ideally, precede capital-account liberalization, ICC calls all WTO member countries to strive for capital account convertibility as soon as a reasonably sound and competitive financial sector is in place.

Public authorities and the business community in less developed countries should work together with their counterparts in industrialized countries to achieve effective reform by creating a stable and appropriate national financial infrastructure that would allow the free movement of capital, crucial to national markets’ development.

Free movement of capital should be included in developing countries’ policy objectives and also motivate them to commit in the Doha Round to corresponding liberalization in cross-border trade in financial services, envisaging transitional periods and prudential regulation where appropriate.

Emerging Safeguards Mechanisms (ESMs)

WTO member countries are urged to avoid the inclusion of ESMs, and ICC stresses that no measures should be taken to inhibit the activities of companies in connection with local commercial presence. ICC is concerned that there are already many safeguard measures in WTO member countries. While these measures may still be in line with existing WTO provisions such as the balance-of-payment safeguard and the prudential carve-out for financial services in the GATS, world business believes that an increased number of safeguards would damage the legal certainty of liberalization commitments in the WTO, which is a prerequisite for market access by foreign financial firms. This, in turn, could seriously affect the efficiency of the financial sector in domestic economies both by raising the cost of capital and by reducing the flow of international capital and hence limiting the potential benefits from international financial market integration.

ICC is also concerned that discussions on ESMs would delay results of the negotiations on liberalization of financial services and thereby jeopardize the benefits of the Doha Round for national economies.

Implementation of the 1997 Financial Services Agreement and new WTO members’ accession commitments

In the context of the 1997 Financial Services Agreement (Fifth Protocol to the GATS – hereafter referred to as “the 1997 Agreement”), WTO member countries made binding commitments to provide non-discriminatory national treatment and market access in financial services, as specified in their country schedules, to financial services firms from any WTO member country. Through the WTO, there is now a strong body of trade rules as well as a formal process for enforcing rules and resolving trade disputes. ICC urges all WTO member countries that signed the 1997 Agreement to endorse and implement it in full. In addition, WTO accession candidates should commit to a degree of openness for their financial sector that would mirror the increased average level of liberalization in the world of today.

Specific recommendations for further liberalization of trade in financial services

· Right of establishment

The 1997 Agreement produced some significant improvements in providing non-resident financial services providers – such as banks, securities firms, insurance companies and non-bank financial companies – with the opportunity to establish and expand their commercial presence in a number of foreign markets. Nevertheless, there is much to be done still to ensure that countries improve their commitments to open their markets on a non-discriminatory basis to foreign firms to enable them to operate in the legal form of their choice, as allowed by the host country for domestic firms, including wholly owned subsidiaries, joint ventures, branches and representative offices.

Improved commitments should include the removal of:

o                        restrictions on corporate form;

o                        obstacles to majority ownership;

o                        limits on majority ownership and control of joint ventures by foreign firms;

o                        obstacles to expansion;

o                        economic needs tests for investments;

o                        prohibitions and limitations on establishing and licensing of commercial presence;

o                        and allow the grandfathering of existing investments, activities and rights.

· Market access and national treatment

ICC recommends that foreign firms should have the same access to markets as domestic firms, and that anticompetitive regulation and discriminatory application of prudential measures such as capital or reporting requirements should be avoided. Where necessary, existing investments and activities should be safeguarded and those WTO members which have not made commitments to protect existing investments and activities should do so. Companies should be free to repatriate their earnings and to transfer or liquidate their business.

As regards regulation and supervision of legally dependent branches of foreign firms, as far as possible host country authorities should rely on the home country authorities’ supervision, provided it meets internationally accepted standards, such as the Basel Capital Accord for Banks (Basel II). This should enable host regulators to allow regulatory and supervisory relief for the local branches of foreign firms without affecting their responsibilities to regulate the conduct of business in their local market.

National governments should ensure that market commitments access at a national level are not compromised by restrictions imposed at sub-national level.

· Cross-border provision of services

Countries have taken steps, although at an uneven pace, to reduce barriers to foreign financial services firms. As economies increasingly turn to global financial markets to meet a portion of their capital needs, foreign financial firms are helping to channel both foreign and domestic savings to these markets.

Non-resident financial services firms face many barriers, including:

o                        limitations on cross-border access, including the right to buy and sell financial products across borders and to participate in and structure transactions;

o                        lengthy and difficult approval for new products;

o                        restrictions on foreign exchange;

o                        limitations to trading in domestic stocks.

Considering the significant contribution of foreign financial services firms to development, nations should reduce and eventually eliminate these barriers by establishing clear and non-discriminatory approval procedures for the activities of non-resident firms.

· Impartial and transparent regulation

In order to encourage and support growth, markets for financial services must meet several goals,including:

o                        protecting investors;

o                        assuring disclosure of information by issuers;

o                        creating secondary markets with efficient pricing mechanisms.

However, companies often face hurdles in their foreign operations as a result of:

- legal systems which lack transparency and are subject to arbitrary actions and sudden changes;

- unclear and impractical licensing requirements and procedures.

Market access by itself does not necessarily guarantee liberalization. Discriminatory local regulatory requirements often prevent foreign financial services firms from competing on a level playing field with domestic firms. Transparency and impartial enforcement of regulations are conducive to equal competition amongst foreign and local firms. Implementation and harmonization of regulatory principles should help WTO members achieve an adequate and predictable regulatory environment for financial markets which is impartial, efficient and transparent.



To achieve such an environment globally, there is a need to improve transparency through GATS commitments, taking into account the following guiding principles:

o                        Rules, regulations and licensing requirements should be imposed, and regulatory actions should be taken, only for the purpose of achieving legitimate public policy objectives that are expressly identified.

o                        Regulations should be clear and understandable.

o                        Regulation should be enforced in a non-discriminatory manner, in particular excluding political, national or other extraneous considerations.

o                        The introduction of new products and services by firms should be governed by the standards set forth in relevant rules and regulations.

o                        All regulations, including requirements to obtain, renew or retain authorization to supply a service, should be publicly available at all times.

o                        To prevent unnecessary distortions to the market, regulators should issue and make available to the public final regulatory actions and the basis for those actions, to enhance public understanding thereof.

In addition, the process of rulemaking should allow advance public notice of rule changes and provide adequate opportunity for comment by market participants, whether domestic or foreign. A corporate and commercial legal system (including bankruptcy law) which establishes the rights of creditors and shareholders, and thus offers predictability and stability, should be given high priority. The enforcement of commercial contracts is also essential to the integrity of the financial services market.

· Electronic commerce and financial services

In considering GATS and e-commerce, the following areas are of most importance when addressingfinancial services:

o                        Services provided through e-commerce should be treated in the GATS on a technology-neutral basis. For example, commitments made under the cross-border mode of supply should bewithout reference to the technological method used.

o                        GATS commitments should facilitate e-commerce. As such, commitments should especially be sought in cross-border trade and consumption abroad, building on commitments concerning commercial presence as they develop and are negotiated through the GATS. In order for liberalization of financial services to yield optimum results, it should be recognized that the liberalization of related services, such as financial information, telecommunications and IT services, is also of great importance.

o                        Regulations should be transparent and adaptable and acknowledge developments in the market, so that regulators can respond quickly to technological change. Recent history has shown that ecommerce has grown most rapidly in those countries which have refrained from new ecommerce specific regulation. In this new environment, enabled by the internet and related technologies, increased competition can also serve to protect consumers’ interests.

o                        Governments should work through international organisations to ensure international consistency of legislation. Questions of jurisdiction and applicable law should be addressed at the international level, taking into account the possibilities opened up by e-commerce.

o                        While this dialogue continues, and certainly during the Doha Round, it is important that no new

o                        barriers are imposed.

· Movement of natural persons

The need to move professional, technical and managerial personnel across national boundaries for purposes linked to international trade and investment is crucial to business, and especially to service providers. We therefore recommend that the movement of natural persons be treated as a priority issue in the GATS negotiations. Rules and practices to achieve greater certainty, transparency and speed in the movement of natural persons are:

o                        agreement on common definitions of key business personnel;

o                        agreement on transparent processes (i.e. a simple explanation of visa and work permit requirements and annual statistics on numbers of temporary working visas);

o                        common terms for intra-company transfers;

o                        provision for short-term movement of key business personnel;

o                        co-ordinated treatment of modes 1,3 and 4 (i.e. a link with cross-border supply of services and foreign establishment).

ICC encourages WTO member countries to make particular efforts to schedule additional commitments under GATS “mode 4”, due to the increasing need to move professional, technical and managerial personnel across national borders for purposes linked to international trade and investment; an area of particular interest to developing countries. Further progress should also be made towards the mutual recognition of professional qualifications.

ICC strongly believes that the financial sectors of both industrial and developing countries would profit from improved temporary access for highly-skilled personnel, such as managers and experts, from other WTO member states. This would facilitate the transfer of knowledge and the net effect on domestic employment would be positive rather than negative. In addition, mode 4 liberalization is, to a large extent, a prerequisite for mode 3 liberalization, e.g. sending managers and experts to establish a commercial presence.

Thus, to fully realize the benefits of opening up financial sectors for foreign firms, a sufficient degree of openness for temporary movement of personnel is required.

·                Implementation and phasing-in approaches

Members of the WTO should continue to explore ways to develop capacity-building programmes to help developing countries establish the regulatory and financial services infrastructure needed to support the market opening commitments to be made in the ongoing GATS negotiations. WTO work on regulatory issues will be useful to support domestic regulatory reform efforts, including the adoption of international standards. In this respect, the WTO can benefit from co-operation with international supervisors and draw on the work on standards which has been undertaken by bodies such as the Basel Committee on Banking Supervision, the International Association of Insurance Supervisors (IAIS) and the International Organization of Securities Commissions (IOSCO).

As developing countries move forward with liberalization, attention may need to be given to the different stages of development of financial markets among WTO members and the possibility of a temporary negative impact of such liberalization on an individual domestic industry. Accordingly, ICC acknowledges that the liberalization objectives it has outlined may need to be phased in over an appropriate period in certain countries, especially developing economies.

 These phase-in periods will vary by country depending on its local market, legal, regulatory and administrative frameworks. It may be appropriate for certain liberalization steps to be phased in before others. Developed countries should support capacity building programmes within the WTO and other organizations which will assist countries to create the conditions necessary for full implementation of liberalization commitments.

However, in the services negotiations, governments should still include timelines for meeting liberalization commitments and these should be as short as is reasonable in light of the specific circumstances of each member country.

Intellectual property

The Commission on Intellectual Property contributes world business views to governmental and intergovernmental debates on key intellectual property issues facing the international business community.

The role that intellectual property protection plays in development is currently at the heart of many debates, including those over technology transfer, intellectual property and public health, access and benefit sharing in relation to genetic resources, and the availability of intellectual property protected information. ICC's Task Force on Intellectual Property and Development is providing input into the current discussion on how WIPO and the intellectual property system should address development-related considerations.

To help negotiators better understand how the intellectual property system can be used in practice to stimulate development, ICC has organized a series of panel discussions in Geneva.

Furthermore, at the same session of the WIPO General Assembly, it was decided that the 'International Bureau shall undertake immediate arrangements in order to organize with other relevant multilateral organizations, including UNCTAD, UNIDO, WHO and WTO, a joint international seminar on Intellectual Property and Development, open to the participation of all stakeholders, including NGOs, civil society and academia'.

The International Seminar on Intellectual Property and Development (IS) was organized by WIPO jointly with UNCTAD, UNIDO, WHO and the WTO at WIPO headquarters, in Geneva, on May 2 and 3, 2005. Under the two broad themes of IP and Public Policy and IP and Development, the IS covered a wide spectrum of issues, including public health, traditional knowledge, biodiversity, copyright and related rights in the digital environment, competition policy, creating value from intellectual property (IP) assets, technology transfer and national best practices.

Panels of experts, delivered presentations on the different thematic topics. Over 120 participants attended the event, representing a wide cross-section of stakeholders from government, industry, academia and civil society.

The WIPO General Assembly, in its Thirty-First (15th Extraordinary) Session held in Geneva, in September 2004, considered a proposal submitted by Brazil and Argentina and supported by Bolivia, Cuba, the Dominican Republic, Ecuador, Iran (Islamic Republic of), Kenya, Sierra Leone, South Africa, Republic of Tanzania and Venezuela. The General Assembly welcomed the initiative and decided to convene inter-sessional intergovernmental meetings to examine the proposals contained in document WO/GA/31/11 (Proposal by Argentina and Brazil for the Establishment of a Development Agenda for WIPO), as well as additional proposals of Member States.

The goal of an IP strategy is the creation, ownership and management of IP assets to meet national needs and to increase economic growth.

National IP Strategies

National IP Strategy documents, formulated by governments with input from the private sector and universities/research institutions, state choices as to how to use IP to promote and strengthen scientific and technological research, development, and commercialization. Such strategies may also address cultural development and industries.

IP Strategies have short, medium and long term components. They are integrated with other relevant national strategies and institutional policies in science, education, finance, trade. etc. IP strategies are sometimes referred to as Innovation Strategies because they take into account innovation systems.

WIPO’s IP and New Technologies Division collaborates with Member States upon request to help them develop National IP Strategies.  The Member State defines its priorities and objectives, usually with the assistance of a national working group.  WIPO provides support in the form of technical assistance, expertise, comparative data and the IP Audit Tool.

WIPO's 3-4 day Training Module in IP Strategy, has run successfully in several countries. It consists of lectures on critical elements of IP strategy, followed by an extended role-playing scenario that gives participants an opportunity to put their newly acquired learning into practice. The themes include:

·   institutional policies and incentives for research institutions;

·   funding IP and developing entrepreneurship;

·   defining clusters and areas of competitive advantage;

·   and the challenges for professional training.

Public Health

Inadequate healthcare systems and epidemics of serious diseases have placed significant pressure on governments and on industry to take immediate and effective action. The role of the patent system in making medicines available to needy consumers, particularly in poor countries, has been the subject of intense debate.

In this respect, the linkages between intellectual property rights and public health are being addressed in several fora. In April 2006, the WHO's Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH) issued a report on, among other issues, the importance and effectiveness of intellectual property rights regimes in stimulating research and creation of new medicines for diseases that particularly affect developing countries.

The WTO has also worked to resolve the issue of how the TRIPS agreement can best support public health goals. A decision was taken by WTO members on 6 December 2005 to approve an amendment to the TRIPS Agreement, making permanent the 30 August, 2003 decision by the WTO General Council to remove limitations on exports under compulsory licence to countries that cannot manufacture the pharmaceuticals themselves.     This amendment has gone a long way towards resolving the contentious debate relating to the introduction of 'cross border' compulsory licensing in the pharmaceutical sector in order to help poor countries obtain access to critical medicines. The amendment is designed to match as closely as possible the waiver introduced by the 2003 decision and its relationship to the statement read out by the General Council Chair in the context of that decision.[2]

The issue of public health and access to medicines calls for a variety of policies, including those unrelated to intellectual property. The business community has an important perspective to contribute to the discussion, having participated in a number of public-private partnerships, as well as in private sector initiatives for supplying needed drugs to developing countries. Business is also providing free or affordable access to biomedical and healthcare information for institutions in low-income countries through public-private initiatives.[3]

The ICC's Task Force on Development is charged with ensuring that the views of ICC members are heard in discussions carried out by the WTO, the WHO and other organizations involved in the public health debate. In particular, the Task Force desires to ensure that questions of interpretation and implementation of the TRIPS Agreement focus on achieving improvements in public health in developing and least-developed countries without eroding the incentives for innovation afforded by intellectual property rights.

Access and benefit-sharing; protection of traditional knowledge

Prior to the coming into force of the Convention on Biological Diversity (CBD) in 1993, access to and use of genetic resources and related traditional knowledge in a particular country were subject primarily to the national regime in that country. The CBD expressly recognized the efficacy of these national regimes by providing that “[s]tates have the sovereign right to exploit their own resources pursuant to their own environmental policies' (CBD Art 3). 

 Also, the Convention declared as an objective, to promote the “fair and equitable sharing of benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources' (CBD Art 1). To meet this objective, the CBD created expectations and imposed obligations which parties were expected to fulfill in national frameworks on access and benefit sharing. [4]

In the intervening decade, however, relatively few states have implemented national frameworks for access and benefit sharing. To accelerate implementation of CBD access and benefit sharing provisions, the parties to the CBD adopted the “Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization' in 200

 As few Parties have adopted frameworks based upon the Bonn Guidelines, the World Summit on Sustainable Development took note of this issue later that same year and mandated negotiations for a “New International Regime' under the CBD which commenced in February, 2005.

Discussions on the protection of traditional knowledge and access and benefit sharing in relation to genetic resources are also taking place in other international fora, such as the World Intellectual Property Organization, and the World Trade Organization in the context of TRIPS.

The ICC Task Force on ABS works to ensure that business messages on access to and benefit sharing (ABS) of genetic resources are conveyed to intergovernmental organizations and key government negotiators. In particular, the task force focuses on the work of the UN Convention on Biodiversity (CBD) and the World Intellectual Property Organization (WIPO).

The ICC's Task Force on Intellectual Property and the Internet is engaged in a broad review of issues that have arisen at the intersection of these two fields.

Trips

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was the result of concerted efforts on the part of certain governments (in particular, the United States) and private sector organizations to establish adequate and effective levels of protection for intellectual property rights, and to reduce distortions and impediments to international trade arising from differing standards of protection.

TRIPS addresses a variety of intellectual property rights, including copyright, trademarks, geographical indications, industrial designs, patents, and trade secrets. Protection for plant varieties is also mandated, whether by patents or otherwise (such as by 'sui generis' protection, such as plant breeders' rights under the UPOV Convention). In addition to substantive provisions regarding the rights themselves, TRIPS also specifies enforcement measures, effective dispute settlement mechanisms, and transitional arrangements for WTO member countries lacking a developed inte llectual property regime.[5]

Several issues are currently under consideration in the WTO TRIPS Council. These include:

·  the patentability of biotechnological inventions, and the relationship between TRIPS, the UN Convention on Biological Diversity, and the protection of traditional knowledge, folklore and genetic resources.

·  how TRIPS provisions can best support public health goals; and

·  geographical indications, which relate to the manner in which places or country names can be used to identify the origin and quality of specific goods.

The ICC's Task Force on TRIPs is engaged in formulating policy in relation to these issues to contribute the perspective of the international business community to the debate.

Summary of the Paris Convention for the Protection of Industrial Property (1883)

The Paris Convention for the Protection of Industrial Property

  During the last century, before the existence of any international convention in the field of industrial property, it was difficult to obtain protection for industrial property rights in the arious countries of the world because of the diversity of their laws. Moreover, patent applications had to be made roughly at the same time in all countries in order to avoid a publication in one country destroying the novelty of the invention in the other countries. These practical problems created a strong desire to overcome such difficulties.

   During the second half of the last century the development of a more internationally oriented flow of technology and the increase of international trade made harmonization of industrial property laws urgent in both the patent and the trademark field.

   When the Government of the Empire of Austria-Hungary invited the other countries to participate in an international exhibition of inventions held in 1873 at Vienna, participation was hampered by the fact that many foreign visitors were not willing to exhibit their inventions at that exhibition in view of the inadequate legal protection offered to exhibited inventions.

This led to two developments: firstly, a special Austrian law secured temporary protection to all foreigners participating in the exhibition for their inventions, trademarks and industrial designs. Secondly, the Congress of Vienna for Patent Reform was convened during the same year,1873. It elaborated a number of principles on which an effective and useful patent system should be based, and urged governments “to bring about an international understanding upon patent protection as soon as possible.”

As a follow-up to the Vienna Congress, an International Congress on Industrial Property was convened at Paris in 1878. Its main result was a decision that one of the governments should be asked to convene an international diplomatic conference “with the task of determining the basis of uniform legislation” in the field of industrial property.

Following that Congress, a final draft proposing an international “union” for the protection of industrial property was prepared in France and was sent by the French Government to a number of other countries, together with an invitation to attend the 1880 International  conference in Paris. That Conference adopted a draft convention which contained in essence the substantive provisions that today are still the main features of the Paris Convention.

A Diplomatic Conference was convened in Paris in 1883, which ended with final approval and signature of the Paris Convention for the Protection of Industrial Property. The Paris Convention was signed by 11 States: Belgium, Brazil, El Salvador, France, Guatemala, Italy, the Netherlands, Portugal, Serbia, Spain and Switzerland.

When it came into effect on July 7, 1884, Great Britain, Tunisia and Ecuador had adhered as well, bringing the initial number of member countries to 14. El Salvador, Guatemala and Ecuador later denounced the Paris Convention to join again in the 1990s. It was only during the first quarter of the 20th century and then particularly after World War II that the Paris Convention increased its membership more significantly.

The Paris Convention has been revised from time to time after its signature in 1883. Each of the revision conferences, starting with the Brussels Conference in 1900, ended with the adoption of 242 WIPO Intellectual Property Handbook: Policy, Law and Use a revised Act of the Paris Convention.

With the exception of the Acts concluded at the revision conferences of Brussels (1897 and 1900) and Washington, D.C. (1911), which are no longer in force, all those earlier Acts are still of significance, although the great majority of the countries are now party to the latest Act, that of Stockholm of 1967.

The Convention applies to industrial property in the widest sense, including patents, marks, industrial designs, utility models (a kind of “small patent” provided for by the laws of some countries), trade names (designations under which an industrial or commercial activity is carried on), geographical indications (indications of source and appellations of origin) and the repression of unfair competition.

The substantive provisions of the Convention fall into three main categories: national treatment, right of priority, common rules.

(1) Under the provisions on national treatment, the Convention provides that, as regards the protection of industrial property, each contracting State must grant the same protection to nationals of the other contracting States as it grants to its own nationals. Nationals of non-contracting States are also entitled to national treatment under the Convention if they are domiciled or have a real and effective industrial or commercial establishment in a contracting State.

(2) The Convention provides for the right of priority in the case of patents (and utility models, where they exist), marks and industrial designs. This right means that, on the basis of a regular first application filed in one of the contracting States, the applicant may, within a certain period of time (12 months for patents and utility models; 6 months for industrial designs and marks), apply for protection in any of the other contracting States; these later applications will then be regarded as if they had been filed on the same day as the first application.

 In other words, these later applications will have priority (hence the expression “right of priority”) over applications which may have been filed during the said period of time by other persons for the same invention, utility model, mark or industrial design. Moreover, these later applications, being based on the first application, will not be affected by any event that may have taken place in the interval, such as any publication of the invention or sale of articles bearing the mark or incorporating the industrial design.

 One of the great practical advantages of this provision is that, when an applicant desires protection in several countries, he is not required to present all his applications at the same time but has six or 12 months at his disposal to decide in which countries he wishes protection and to organize with due care the steps he must take to secure protection.

(3) The Convention lays down a few common rules which all the contracting States must follow. The more important are the following:

(a) As to Patents: Patents granted in different contracting States for the same invention are independent of each other: the granting of a patent in one contracting State does not oblige the other contracting States to grant a patent; a patent cannot be refused, annulled or terminated in any contracting State on the ground that it has been refused or annulled or has terminated in any other contracting State.

The inventor has the right to be named as such in the patent.

The grant of a patent may not be refused, and a patent may not be invalidated, on the ground that the sale of the patented product, or of a product obtained by means of the patented process, is subject to restrictions or limitations resulting from the domestic law.

Each contracting State that takes legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exclusive rights conferred by a patent may do so only with certain limitations.

Thus, a compulsory license (license not granted by the owner of the patent but by a public authority of the State concerned) based on failure to work the patented invention may only be granted pursuant to a request filed after three or four years of failure to work or insufficient working of the patented invention and it must be refused if the patentee gives legitimate reasons to justify his inaction.

 Furthermore, forfeiture of a patent may not be provided for, except in cases where the grant of a compulsory license would not have been sufficient to prevent the abuse. In the latter case, proceedings for forfeiture of a patent may be instituted, but only after the expiration of two years from the grant of the first compulsory license.

(b) As to Marks: The Paris Convention does not regulate the conditions for the filing and registration of marks which are therefore determined in each contracting State by the domestic law. Consequently, no application for the registration of a mark filed by a national of a contracting State may be refused, nor may a registration be invalidated, on the ground that filing, registration or renewal has not been effected in the country of origin. Once the registration of a mark is obtained in a contracting State, it is independent of its possible registration in any other country, including the country of origin; consequently, the lapse or annulment of the registration of a mark in one contracting State will not affect the validity of registration in other contracting States.

Where a mark has been duly registered in the country of origin, it must, on request, be accepted for filing and protected in its original form in the other contracting States. Nevertheless, registration may be refused in well-defined cases, such as when the mark would infringe acquired rights of third parties, when it is devoid of distinctive character, when it is contrary to morality or public order, or when it is of such a nature as to be liable to deceive the public.

If, in any contracting State, the use of a registered mark is compulsory, the registration cannot be canceled until after a reasonable period, and only if the owner cannot justify his inaction.

Each contracting State must refuse registration and prohibit the use of marks which constitute a reproduction, imitation or translation, liable to create confusion, of a mark considered by the competent authority of that State to be well known in that State as being already the mark of a person entitled to the benefits of the Convention and used for identical or similar goods.

Each contracting State must likewise refuse registration and prohibit the use of marks which consist of or contain without authorization, armorial bearings, State emblems and official signs and hallmarks of contracting states, provided they have been communicated through the International Bureau of WIPO. The same provisions apply to armorial bearings, flags, other emblems, abbreviations and names of certain intergovernmental organizations.

Collective marks must be granted protection

(c) As to Industrial Designs: Industrial designs must be protected in each contracting State, and protection may not be forfeited on the ground that the articles incorporating the design are not manufactured in that State.

(d) As to Trade Names: Protection must be granted to trade names in each contracting State without the obligation of filing or registration.

(e) As to Indications of Source: Measures must be taken by each contracting State against direct or indirect use of a false indication of the source of the goods or the identity of the producer, manufacturer or trader.

(f) As to Unfair Competition: Each contracting State must provide for effective protection against unfair competition.

The Paris Union, established by the Convention, has an Assembly and an Executive Committee. Every State member of the Union which has adhered to at least the administrative and final provisions of the Stockholm Act (1967) is a member of the Assembly. The members of the Executive Committee are elected from among the members of the Union, except for Switzerland, which is a member ex officio.

The establishment of the biennial program and budget of the WIPO Secretariat—as far as the Paris Union is concerned—is the task of its Assembly.

The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in 1958 and at Stockholm in 1967, and it was amended in 1979.

The Convention  is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO.

Taxation

The commission speaks for international business in dialogue with governments and intergovernmental organizations on developments in international tax policy and legislation.

Trade and investment

The mandate of the Commission on Trade and Investment Policy is to break down barriers to international trade and investment so that all countries can benefit from improved living standards through increased trade and investment flows.

3.      ICC Rules of Conduct to Combat Extortion and Bribery in International Business Transactions

ICC Recommendations to Governments and International Organizations on Extortion and Bribery

Recommendations for international cooperation
Basic criminal statutes of virtually all countries clearly prohibit extortion and bribery. In the interest of developing consistent standards of criminal legislation in this field, each government should review its statutes to ensure that they effectively prohibit, in conformity with its jurisdictional and other basic legal principles, all aspects of both the giving and the taking of bribes including promises and solicitation of bribes. Where no such legislation 1exists, the governments concerned should introduce it; in those countries where extortion and bribery are already clearly prohibited, the relevant legislation should be perfected.           
           Each government should take concrete and meaningful steps to enforce vigorously its legislation in this area. The ICC also notes with approval that the OECD has urged governments to re-examine their legislation against extortion and bribery; action relating to the tax deductibility of bribes is of particular urgency. The WTO should involve itself with these issues to support the OECD in the implementation of its Recommendations.

National Measures 
In order to deal with the problem of extortion and bribery, governments should, in conformity with their jurisdictional and other basic legal principles, take the following measures, if they have not already done so.

Preventive measures          
Disclosure procedures For the sake of transparency, procedures should be established providing for periodic reports to an authorised government body of measures taken to supervise government officials involved directly or indirectly in commercial transactions. Such reports should be open to public scrutiny.     

For enterprises engaged in transactions with any government or with any enterprise owned or controlled by government, disclosure procedures should provide for access, upon specific request, by the appropriate government authorities to information as to agents dealing directly with public bodies or officials in connection with any particular transaction, and as to the payments to which such agents are entitled. Governments should ensure the confidentiality of any such information received from enterprises and safeguard the trade secrets incorporated therein.

Economic regulations when laying down any economic regulations or legislation, government s should, as far as possible, minimise the use of systems under which the carrying out of business requires the issuance of individual authorisations, permits, etc. Experience shows that such systems offer scope for extortion and bribery. This is because decisions involving the issue of permits or authorisations are frequently taken in ways which make it almost impossible to ensure effective control and supervision. Where individual permits and authorisations remain in place, governments should take appropriate measures to prevent their abuse.

Transactions with governments and international organisations Such transactions should be subject to special safeguards to minimise the opportunities for their being influenced by extortion and bribery.

The system for awarding government contracts might include disclosure, to an appropriate government entity independent of the one directly concerned in the transaction, as well as increased public disclosure, whenever feasible, of the criteria and conclusions upon which the award is based. The ICC supports the growing practice of making government contracts dependent on undertakings to refrain from bribery, and recommends that such contracts should include appropriate provisions to ensure compliance with international, national or enterprise codes against extortion and bribery.

Political contributions Undisclosed political contributions can be a source of abuse. Governments should regulate the conditions under which political contributions can be made. Where payments by enterprises to political parties, political committees or individual politicians are permitted by the applicable legislation, governments should enact legislation which ensures that such payments are publicly recorded by the payors and accounted for by the recipients.

Enforcement measures Governments, in conformity with their jurisdictional and other basic legal principles, should ensure:

                           i.                  that adequate mechanisms exist for surveillance and investigation, and

                         ii.                  that those who offer, demand, solicit or receive bribes in violation of their laws are subject to prosecution with appropriate penalties.

Governments should periodically publish statistical or other information in respect of such prosecutions.

Auditing Governments, if they have not already done so, should enact appropriate legislation providing for auditing by independent professional auditors of the accounts of economically significant enterprises.

International Cooperation and Judicial Assistance         
Implementation of the OECD Recommendation


The ICC believes that the May 1994 OECD Recommendation on Bribery in International Business Transactions is essentially sound and that it provides a useful framework for government action. All governments, including non-OECD governments, should promptly take action to implement the steps set forth in the Recommendation.

Cooperation in law enforcement  
Governments should agree, under appropriate provisions for confidentiality, and in conformity with the May 1994 OECD Recommendation, to exchange through law enforcement agencies relevant and material information for the purpose of criminal investigation and prosecution of cases of extortion and bribery. They should also continue to cooperate bilaterally on matters involving extortion and bribery, on the basis of treaties providing for assistance in judicial and penal prosecution matters.

Role of international financial institutions        
International financial institutions, e.g., the World Bank, the European Bank for Reconstruction and Development, should aim to make a significant contribution to the reduction of extortion and bribery in international business transactions. They should take all reasonable steps to ensure that corrupt practices do not occur in connection with projects which they are financing.

Similarly, in negotiating cooperation agreements with non-member countries, whether countries with economies in transition or developing nations, the governing or coordinating bodies of the European Union, NAFTA, ASEAN and other regional institutions, should seek to satisfy themselves that appropriate legislation and administrative machinery to combat extortion and bribery exists in the countries concerned.

Rules of Conduct to Combat Extortion and Bribery       
Introduction

·               These Rules of Conduct are intended as a method of self-regulation by international business, and they should also be supported by governments. Their voluntary acceptance by business enterprises will not only promote high standards of integrity in business transactions, whether between enterprises and public bodies or between enterprises themselves, but will also form a valuable defensive protection to those enterprises which are subjected to attempts at extortion.

These Rules of Conduct are of a general nature constituting what is considered good commercial practice in the matters to which they relate but are without direct legal effect. They do not derogate from applicable local laws, and since national legal systems are by no means uniform, they must be read mutatis mutandis subject to such systems.

The business community objects to all forms of extortion and bribery.  It is recognised, however, that under current conditions in some parts of the world, an effective programme against extortion and bribery may have to be implemented in stages. The highest priority should be directed to ending large-scale extortion and bribery involving politicians and senior officials.

These represent the greatest threat to democratic institutions and cause the gravest economic distortions. Small payments to low-level officials to expedite routine approvals are not condoned.  However, they represent a lesser problem.  When extortion and bribery at the top levels is curbed, government leaders can be expected to take steps to clean up petty corruption.

Basic principle

·               All enterprises should conform to the relevant laws and regulations of the countries in which they are established and in which they operate, and should observe both the letter and the spirit of these Rules of Conduct.         
               For the purposes of these Rules of Conduct, the term 'enterprise' refers to any person or entity engaged in business, whether or not organised for profit, including any entity controlled by a State or a territorial subdivision thereof; it includes, where the context so indicates, a parent or a subsidiary.

Basic Rules

Article 1 : Extortion

·               No one may, directly or indirectly, demand or accept a bribe.

Article 2 : Bribery and  'Kickbacks'

a.No enterprise may, directly or indirectly, offer or give a bribe and any demands for such a bribe must be rejected.

b.Enterprises should not (i) kick back any portion of a contract payment to employees of the other contracting party, or (ii) utilise other techniques, such as subcontracts, purchase orders or consulting agreements, to channel payments to government officials, to employees of the other contracting party, their relatives or business associates.

Article 3 : Agents

·               Enterprises should take measures reasonably within their power to ensure:

a)that any payment made to any agent represents no more than an appropriate remuneration for legitimate services rendered by such agent;

b) that no part of any such payment is passed on by the agent as a bribe or otherwise in contravention of these Rules of Conduct; and

c)that they maintain a record of the names and terms of employment of all agents who are retained by them in connection with transactions with public bodies or State enterprises. This record should be available for inspection by auditors and, upon specific request, by appropriate, duly-authorised governmental authorities under conditions of confidentiality.

 Article 4 : Financial Recording and Auditing

a)All financial transactions must be properly and fairly recorded in appropriate books of account available for inspection by boards of directors, if applicable, or a corresponding body, as well as auditors.

b)There must be no 'off the books' or secret accounts, nor may any documents be issued which do not properly and fairly record the transactions to which they relate.

c)Enterprises should take all necessary measures to establish independent systems of auditing in order to bring to light any transactions which contravene the present Rules of Conduct.  Appropriate corrective action must then be taken. 

Article 5 : Responsibilities of Enterprises

·               The board of directors or other body with ultimate responsibility for the enterprise should:

a)take reasonable steps, including the establishment and maintenance of proper systems of control aimed at preventing any payments being made by or on behalf of the enterprise which contravene these Rules of Conduct;

b)periodically review compliance with these Rules of Conduct and establish procedures for obtaining appropriate reports for the purposes of such review; and

c)take appropriate action against any director or empl oyee contravening these Rules of Conduct.

Article 6 : Political Contributions

·               Contributions to political parties or committees or to individual politicians may only be made in accordance with the applicable law, and all requirements for public disclosure of such contributions shall be fully complied with. All such contributions must be reported to senior corporate management.

Article 7 : Company Codes

·               These Rules of Conduct being of a general nature, enterprises should, where appropriate, draw up their own codes consistent with the ICC Rules and apply them to the particular circumstances in which their business is carried out.  Such codes may usefully include examples and should enjoin employees or agents who find themselves subjected to any form of extortion or bribery immediately to report the same to senior corporate management. Companies should develop clear policies, guidelines, and training programmes for implementing and enforcing the provisions of their codes.



[1] John Dorter, Building and Construction Law, 2001.

[4] WIPO: Traditional Knowledge, Genetic Resource and Folklore http://www.wipo.int/tk/en/

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