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Created
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09STATE37071
2009-04-15 16:00:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Secretary of State
Cable title:  

MARCH 2009 OECD WORKING GROUP ON BRIBERY MEETING

Tags:  CH CI ECON EG EINV EN ETRD EZ FR ID IN IS PGOV 
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UNCLAS STATE 037071 

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DOC FOR OGC/KNICKERSON
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DOJ FOR CRIMINAL DIVISION/FRAUD SECTION/MMENDELSOHN
PASS TO US SECURITIES AND EXCHANGE COMMISSION/INTL. AFFAIRS/TBEATTY

E.O. 12958: N/A
TAGS: CH CI ECON EG EINV EN ETRD EZ FR ID IN IS PGOV
PREL, RS, SI, TH, UK, KCOR, OECD
SUBJECT: MARCH 2009 OECD WORKING GROUP ON BRIBERY MEETING

UNCLAS STATE 037071

SENSITIVE
SIPDIS
DOC FOR OGC/KNICKERSON
ITA/JKOZLOWICKI
DOJ FOR CRIMINAL DIVISION/FRAUD SECTION/MMENDELSOHN
PASS TO US SECURITIES AND EXCHANGE COMMISSION/INTL. AFFAIRS/TBEATTY

E.O. 12958: N/A
TAGS: CH CI ECON EG EINV EN ETRD EZ FR ID IN IS PGOV
PREL, RS, SI, TH, UK, KCOR, OECD
SUBJECT: MARCH 2009 OECD WORKING GROUP ON BRIBERY MEETING


1. (SBU) U.S. delegation (USDEL) members from the Commerce,
Justice, and State Departments and the Securities and
Exchange Commission (SEC) participated in the OECD Working
Group on Bribery (WGB) meeting in Paris March 16-20, 2009.
The WGB made significant progress on its Review of
Instruments, with the USDEL successfully conveying its view
that amendments to the existing instruments, as well as new
binding instruments, were unnecessary and that new issues and
clarifications would be best advanced through a new
recommendation. The WGB also began discussions on a proposal
to review the WGB Management Group,s role and procedures.
In addition, the WGB negotiated a rough draft for inclusion
in the OECD Ministers' June 2009 statement on the importance
of fighting bribery, respecting Article 5, and rigorous
monitoring of the OECD Anti-Bribery Convention
(&Convention8) during the global economic crisis. Members
of the delegation also participated in a WGB public
consultation with the private sector on internal controls and
external auditors.


2. (SBU) The WGB examined new signatory Israel,s
Convention implementing legislation and overall legal
framework for addressing bribery of foreign public officials,
giving it a fairly positive review. The U.K. delivered a
status report on its anti-bribery legislation, which it said
is on track for public release and &pre-legislative
scrutiny8 by Easter (April 12). The Czech Republic provided
an update on its progress in finally adopting corporate

liability, estimated for 2010, which the WGB found
unacceptable. During the Tour de Table information exchange
on Parties, current investigation and cases, delegates
discussed pending French legislation that would make
investigations of defense companies more difficult and that
may be in response to the UK,s termination of its BAE
investigation; at the Chair,s request, France pledged to
provide a written report within a month and to follow up at
the June WGB meeting. USDEL and Switzerland also proposed
modifying the Tour de Table exercise to focus on specific
companies/industry sectors and a subset of parties at each
WGB meeting, which the WGB will consider. USDEL met with
several countries on the margins of the meeting, including
China, currently a WGB observer, on its views of the
Convention and next steps, and like-minded Parties Canada and
New Zealand on the issue of facilitating payments. Although
a Russian delegation briefly appeared as an observer at the
beginning of the meeting, it left before USDEL could meet
with them and made no presentation or remarks. On the
margins of the meeting, USDEL also participated in
discussions concerning a new WGB Chair.


3. (U) USDEL members were Kathryn Nickerson (DOC),Mark
Mendelsohn and Charles Duross (DOJ),Troy Beatty (SEC) and
Greg Wierzynski (DOS). End Summary.

OECD WGB BACKGROUND


4. (SBU) Since the adoption of the Foreign Corrupt
Practices Act (FCPA) in 1977, the U.S. has vigorously
enforced criminal and civil penalties against U.S.
individuals and companies involved in the bribery of foreign
public officials. In response to concerns that American
companies were operating at a disadvantage compared to
foreign companies that routinely paid bribes, the U.S. led
negotiations that, in 1997, resulted in the signing of the
OECD Anti-Bribery Convention. The Convention is intended to
level the playing field for U.S. exporters by committing our
main trading partners to adopt laws criminalizing the bribery
of foreign public officials. Now including all thirty OECD
members plus Argentina, Brazil, Bulgaria, Chile, Estonia,
Slovenia, South Africa, and Israel, the Convention is
potentially a powerful tool against corruption. The OECD WGB
conducts regular peer review of countries, legal frameworks
and enforcement. Although U.S. enforcement is stronger than
ever, our trading partners, enforcement record has been
mixed, with most countries having few investigations and
prosecutions, if any. The WGB is currently developing a
permanent peer monitoring mechanism for the Convention.

REVIEW OF INSTRUMENTS


5. (SBU) The WGB continued and made significant progress
on its Review of Instruments exercise, begun in 2007 (ten
years after Convention adoption). The purpose of the review
is to determine whether the WGB needs to amend, clarify or
issue guidance on its instruments, i.e., the OECD
Anti-Bribery Convention, its Commentaries and the 1997
Revised Recommendation of the Council on Combating Bribery in
International Business Transactions. USDEL sought to ensure
that the WGB did not pursue amending the existing instruments
or issuing binding obligations (including &authoritative
interpretations8),which USDEL deems unnecessary and would
likely require Senate consultations. Instead, the U.S.
supported a new non-binding recommendation, which would have
to be approved by the OECD Council but would not require U.S.
Senate approval. The broader WGB, which did not advance
proposals for new instruments or amendments, appeared to
support this view.


6. (U) The WGB (with some USDEL support) continued to
consider language on reporting bribery by public officials,
effective whistleblower protections, internal company
controls, UN Convention Against Corruption (UNCAC)
ratification, mutual legal assistance, and corporate
liability. The WGB threw out several issues that did not
merit revision or clarification, including the treatment of
bribes from the private sector to the private sector (which
is beyond the scope of the Convention) and bribes paid to
third parties on behalf of foreign public officials or paid
through intermediaries (as such bribes are already explicitly
covered by the Convention). Four specific issues related to
the Review of Instruments (tax deductibility of bribes to
foreign public officials, Article 5, facilitation payments
and corporate liability) are discussed in more detail in
paragraphs below.


7. (SBU) Review of the 1996 joint Recommendation on Tax
Deductibility of Bribes of Foreign Public Officials (which is
incorporated into the 1997 Revised Recommendation on
Combating Bribery in International Business Transactions): A
representative from the WGB,s sister Committee on Fiscal
Affairs (CFA) presented a new draft Recommendation on Tax
Measures for Further Combating Bribery of Foreign Public
Officials in International Business Transactions that was
approved by the CFA on January 27, 2009. The new draft
recommends in Part I that Member countries and other Parties
to the OECD Anti-Bribery Convention explicitly disallow tax
deductions for bribes to foreign public officials, that they
review their frameworks for disallowing such payments, and
that they consider including in their bilateral tax treaties
language to allow tax authorities to share tax information
with other law enforcement agencies and judicial authorities
on high priority matters (e.g. to combat money laundering,
corruption, and terrorism financing). The WGB was satisfied
with the bribery text relating to tax deductions in Part I of
the draft Recommendation. However, several countries, i.e.

Canada, New Zealand, and Switzerland, took issue with Part II
of the new Recommendation. Part II recommends establishing
an effective legal and administrative framework and providing
guidance to facilitate tax authorities, reporting on
suspicions of serious crimes (foreign bribery, money
laundering, and terrorism financing) to the appropriate
domestic law enforcement authorities. As a result, the Chair
suggested that the CFA either limit Part II,s scope to
bribery or change the title of the new draft. USDEL had no
comments, as it has been coordinating with the Treasury
Department on the new Recommendation (Treasury has the lead
on this issue and represents the USG in the CFA). (Note:
earlier versions of the new draft Recommendation had included
provisions on disallowing tax deductions for facilitating
payments, e.g. generally small payments to public officials
that are not considered bribes under the FCPA. In earlier
meetings, USDEL and several other delegations (in both
committees) objected to the language, as such payments were
legal under their systems, so the language on facilitating
payments was omitted in the final draft. However, the new
Recommendation will likely be re-reviewed in three years from
its adoption, so the issue of facilitating payments
deductions will likely reappear. End note.)


8. (SBU) Article 5: Of particular concern to the U.S. was
an overly prescriptive Secretariat proposal on Article 5 of
the Convention (which prohibits parties from considering
issues of national economic interest, effects on relations
with other States or the identity of the legal or natural
persons involved when exercising discretion to investigate or
prosecute). The Secretariat,s proposal set forth a new set
of required procedural &safeguards8 to ensure that
decisions not to investigate or prosecute are consistent with
Article 5. Many delegates objected to language stating that
such decisions would be &fully reviewable8 by the WGB.
USDEL strongly opposed the Secretariat proposal, as it
exceeded the scope of both the Convention and Commentaries,
including Article 12. USDEL suggested instead that OECD make
a political statement in support of Article 5 in a Council
recommendation. With the support of several other
delegations, the legal advisor to the OECD took on the USDEL
political statement suggestion and prepared a Ministerial
declaration discussion draft expressing renewed support for
the Convention in the context of the global economic crisis
and calling for diligence in monitoring and enforcement
without regard for the prohibited considerations in Article

5. The draft also contains a paragraph calling for accession
by remaining large exporters outside of the group (China and
Russia).


9. (SBU) Article 5 continued: USDEL believes such a
Declaration would serve to (1) reinforce the Convention,s
importance during the economic crisis; (2) support the WGB
and continued systematic monitoring, including the WGB,s
determination, as part of monitoring, to address on a
case-by-case basis situations like the UK,s decision to
discontinue its BAE Al Yamamah investigation (without any
express reference to the UK or that case); (3) address civil
society,s concerns regarding Article 5 enforcement; and (4)
send a strong signal to China and Russia to join the
Convention. The WGB will continue to work on the draft to
ready it for consideration at the June OECD Ministerial. The
United States should strongly support a OECD Ministerial
declaration that emphasizes rigorous monitoring, Article 5
obligations, and the accession of new Parties (i.e. China and
Russia). Linking the objectives of the OECD Anti-Bribery
Convention to multilateral cooperation on the global economic
crisis could send a powerful message about the need for
anti-bribery enforcement.


10. (SBU) Facilitation Payments: Despite the Chair's proposal
to remove the Commentary to the Convention that allowed for a
facilitation payment exception, USDEL convinced the WGB that
it needed to study the issue more closely to provide the
clarity the business community is seeking. At USDEL's
request, the Secretariat will circulate proposed U.S.
questions on how the issue of facilitation payments is
handled by countries without the exception, for example
through the use of prosecutorial discretion. The WGB agreed
to separate this issue from the Review of Instruments to
allow more time, perhaps until October, to develop guidance
or recommendations. The WGB will hold an internal meeting
June 15 to further review the matter; the Swedish delegation
will head the ad hoc group drafting the agenda, and private
sector consultation remains a possibility. In the meantime,
countries that provide for the exception will discreetly
reach out to their private sectors to determine best
practices. Possible outcomes include WGB guidance to
prosecutors, investigators, and the private sector, and
forward-looking language in a new recommendation. USDEL met
with allies (Canada and New Zealand) over a working lunch on
the issue to solidify support (other allies, such as,
Australia did not attend WGB meeting, while Korea sent its
OECD mission representative).


11. (U) Phase 3: The WGB continued to refine a document
setting forth procedures for its next, permanent phase of
monitoring. The WGB agreed to decouple the issue from the
Review of Instruments, another USDEL goal, as we have sought
to begin the new stage of monitoring as soon as possible.
Delegations will provide comments to the Secretariat,s
proposed Phase 3 questionnaire to be completed by June.

MANAGEMENT GROUP (MG) REVIEW


12. (SBU) The MG was created in 2004 to improve WGB
efficiency and to engage the Secretariat; the U.S. has been a
member of the MG since its inception. At its December
meeting, the WGB decided to review the MG,s role and
procedures. USDEL,s overall goal is to maintain a small
bureau-like MG that will assist in steering the WGB agenda
and provide guidance to the WGB and Chair. USDEL is working
to ensure that MG,s role remains procedural and does not
replace the substantive role of the WGB, even if a
substantive role would sometimes be more convenient for the
Secretariat. Currently the MG has eight elected members: an
independent Chair, a Vice-Chair (Greece) and
heads-of-delegation from France, Sweden, Italy, Germany,
Japan and the United States. In detailed comments to the
Secretariat,s draft proposals, USDEL advocated for better
future regional balance and allowing for MG representation by
delegation alternates when necessary, in light of State,s
rotation process (State normally represents the USDEL in the
MG). The WGB discussion generally echoed these points, and
the MG said it would discuss the proposals in more detail at
its next meeting, taking the WGB,s views into account, and
provide a revised draft for the WGB in June.

INTERNAL CONTROLS AND AUDITING SEMINAR


13. (U) Troy Beatty from the SEC served as a facilitator and
Kathryn Nickerson from DOC represented the USDEL at a public
consultation with the private sector on internal controls and
external auditing. The private sector provided advice on
these issues and commented on whether revision to the 1997
Recommendation is warranted. (Section V of the 1997
Recommendation requires member countries to consider adopting
appropriate internal controls and external auditing
standards.) The private sector enthusiastically provided
advice on the elements of an effective compliance and ethics
program, which participants said must include a strong
management component, continuous internal training, direct
reporting channels to management, whistleblower protection,
and sufficient internal review structures. Seminar
participants agreed that while basic requirements of such
programs should be the same, regardless of the size of the
company, big corporations should have more elaborate programs
whereas smaller companies should have programs more
appropriate to their size. Furthermore, such programs should
extend to companies, subcontractors and subsidiaries.
Participants stressed the importance of government guidance
and incentives, such as providing information on the amount
of corruption risk in particular foreign markets. They also
suggested that governments ) prosecutors in particular )
consider a company,s anti-bribery compliance program and
whether the program would constitute a mitigating factor in
prosecution or sentencing. Concerning external audits, the
private sector explained that strong internal compliance
measures would facilitate external auditors, work. There
was a long discussion on whether external auditors should
report all instances of foreign bribery to company
management, irrespective of materiality (as that term relates
to financial statement reporting). There was agreement, if
such reporting was required or allowed, that some kind of
safe harbor provisions (protecting auditors from liability,
i.e., civil lawsuits) would be needed. The WGB provided
comments on the private sector,s proposals, and the
Secretariat was tasked with incorporating them into proposed
language for a potential new recommendation for discussion at
the June meeting.

ISRAEL PHASE 1 REVIEW


14. (SBU) Israel, the 38th party to the OECD Antibribery
Convention, underwent its Phase 1 Review in which the WGB
examined Israel,s law implementing the Convention and
overall legal framework for addressing bribery of foreign
public officials. The WGB found that Israel,s law generally
met the standards of the Convention, with only a few problems
that would be addressed during Israel,s Phase 2 review (in
which examiners and the Secretariat will visit Israel to
examine its enforcement structure and resources). For
example, although the penalties for foreign bribery were more
or less the same as those for domestic bribery under Israeli
law, as required by the Convention, the WGB questioned
whether 3.5 years imprisonment and 38,000 euro fines were
effective, proportionate and dissuasive, especially for
corporations, as required by Article 3 (Sanctions) of the
Convention. The WGB also expressed concerns about whether
the requirement under Israeli law that the Attorney General
approve foreign bribery indictments presented any concerns
under Article 5 on enforcement, which provides that Parties
cannot take into account economic considerations,
relationships with another State, or the identity of the
specific legal or natural person involved when deciding
whether to investigate or prosecute. Both the lead
examiners, Canada and Switzerland, and Israeli
representatives were extremely well prepared. The review was
an excellent example of Phase 1 monitoring for the observing
Chinese delegation.

UK DRAFT LEGISLATION


15. (SBU) The U.K. delegate provided a report on the U.K.,s
progress in fulfilling its Phase 2 bis legislative
recommendations, as it currently lacks an adequate
anti-bribery law that meets the Convention,s standards. The
U.K. plans to publish a draft bribery bill for
pre-legislative scrutiny this Parliamentary session before
April 12 and claims that officials &are firmly on track8 to
meet this goal. The U.K. said that it appreciated the OECD
expert delegation,s visit in January on behalf of the WGB,
composed of representatives from the Secretariat and the MG
(Mark Mendelsohn, DOJ, represented the USG). The U.K.
reported that it had taken note of the delegation,s advice,
particularly concerning the U.K. Law Commission proposal for
a corporate offense of negligent failure to prevent bribery.
The U.K. said that &it is mindful of the constraints posed
by its electoral cycle, requiring a national Parliamentary
election by May 2010 at the latest,8 and shares the WGB
concern about the need to make substantial progress in reform
in 2009. On the meeting margins, the U.K. delegation
expressed optimism that the draft bribery bill would progress
on schedule and that Parliamentary time would be afforded for
legislation consideration. The WGB needs to maintain
pressure on the U.K. to move toward an adequate anti-bribery
law. USDEL asks Embassy London to flag appropriate
opportunities to convey to U.K. officials -- especially those
at a high level -- the importance of timely reforms.

CZECH IMPLEMENTATION


16. (SBU) The Czech delegate reported on Czech efforts to
establish corporate liability for foreign bribery. He
reported that the Czech Government will likely adopt a
resolution on March 30, 2009 to prepare a draft law on
criminal corporate liability for discussion by June 2010. He
said that the Government may consider an alternative option,
namely, preparing a policy paper on administrative corporate
liability by April 30, 2009. The WGB found this report and
timetable unacceptable, as it had been recommending that the
Czech Republic, an original signatory to the Convention,
adopt corporate liability for years. The WGB agreed that the
Chair would send two letters, on the WGB,s behalf, to the
Czech Prime Minister expressing the WGB,s serious concerns
and asking that the Czech Ambassador to the OECD attend the
next WGB meeting to report to the group. The WGB Chair had
already sent one letter to the Prime Minister in December,
but had not received a reply at the time of the March
meeting.

PROBLEMATIC PROPOSED FRENCH LEGISLATION


17. (SBU) During the Tour de Table, when the WGB discussed
press reports of potential cases, the USDEL raised press
reports that France apparently has a new bill that would
limit investigating magistrates, power to conduct searches
of defense contractors, offices or other locations likely to
have classified or state secret material related to defense
contracts. The U.K. joined the USDEL in expressing serious
concern over this development. The Chair demanded a report
from France within a month. After first denying that the
bill was public and stressing that the bill was in a
preliminary state, France said after the lunch break that
such a bill had in fact been introduced in Parliamentary
committee in October, that the legislation had been proposed
by the Defense Ministry, and promised to deliver a written
report as requested. This not only raises serious Article 5
concerns, but may represent France,s response to the UK,s
discontinuance of its BAE Al Yamamah case and threaten
chances for the Ministerial Declaration described above (para
8 and 9). When confronted, France denied that the draft bill
was related to the U.K. situation, explaining that the
legislation had been prepared some time ago. The USDEL is
deeply concerned that such legislation could undermine
bilateral cooperation on anti-bribery and France,s ability
to fulfill its OECD Anti-Bribery Convention obligations and
asks Embassy Paris to obtain more information from the French
about the proposed legislation that would shield the defense
industry from investigations.

OECD ACCESSION COUNTRIES CHILE, ESTONIA, AND SLOVENIA;
POTENTIAL CONVENTION OBSERVERS THAILAND, EGYPT, AND INDIA


18. (SBU) Chile, Estonia and Slovenia (all parties to the
Anti-Bribery Convention) are seeking OECD accession, so the
WGB must provide the OECD with an opinion on whether they are
fulfilling their anti-corruption obligations. Chile has made
significant progress on a bill creating corporate liability,
which will hopefully pass this year, greatly improving
Chile,s chances for a favorable opinion from the group. The
WGB agreed on draft contents of a letter the Chair will send
to Chile to encourage it to pass such legislation and note
other deficiencies it must address. The Secretariat will
draft new reports for Estonia and Slovenia, which appear to
be on track. The WGB will review the reports in June.


19. (SBU) Concerning Thailand's observer request, the Chair
asked the Secretariat to confirm that the Thai government is
interested, as the request came from Thailand,s Office of
the National Anti-Corruption Commission (NACC),which is
apparently separate from the government. USDEL said that
NACC will be meeting with delegation representatives in April
and will ask about its relationship with the Thai government.
The Secretariat has sent accession information to Egypt in
response to initial interest about observing with a view to
becoming a party to the Convention but has not received any
further expression of interest. The Secretariat separately
told the MG that it is pursuing India, but that India has not
responded to its inquiries and does not appear interested in
joining the Convention.

CURRENT CONVENTION OBSERVERS: CHINA AND RUSSIA


20. (SBU) USDEL held a brief informal bilateral meeting with
China, which was attending as an observer for the third time.
USDEL stressed the importance of having a foreign
anti-bribery law and offered continued bilateral assistance
in this area. The Chinese did not make a presentation or
offer any update on the status of their law, saying, when
asked, that they had nothing to add to the detailed
presentation they made in December. The Chinese delegate
said that China attracts and is making a lot of foreign
investments and so is concerned about foreign corruption,
including corruption of its domestic officials by foreign
companies. He admitted that Chinese companies risked being
known as corrupt abroad if China did not enact a foreign
bribery law soon. The Chinese delegates stressed their
continued goal of addressing domestic bribery and
implementing UNCAC. USDEL believes continued engagement with
China on anti-bribery issues is necessary to determine
Chinese attitudes on domestic legislation against foreign
bribery and WGB membership, and asks Chinese posts and
Washington-based China offices to flag opportunities for
bilateral exchange with the Ministry of Supervision or other
appropriate Ministries.


21. (SBU) Disappointingly, the Russians only made brief
appearances the first day and a half, and then did not attend
the rest of the week. USDEL therefore did not have the
opportunity to talk to them. The Secretariat informed USDEL
during the MG meeting that although interested in accession
to the OECD, the Russian Ministry of Justice was clearly not
interested in the Convention and the Ministry of Foreign
Affairs had to push them to attend at all. The Secretariat
warned that assessing Russia will be challenging, given its
reportedly inadequate new anti-corruption law and lack of
enforcement. Nonetheless, the WGB agreed to invite Russia
for its accession review in December.

NEW CHAIRMANSHIP


22. (SBU) Current WGB Chair Mark Pieth invited U.S. delegates
Kathryn Nickerson and Mark Mendelsohn to lunch to discuss
whether Pieth should remain as WGB Chair. Delegates from
France and Holland also participated. All agreed that it was
time to start a formal search for the next Chair, as the WGB
is about to begin its new phase of monitoring and could use
dynamic new leadership. Pieth has held the position for
nineteen years, almost unheard of in the OECD. All also
agreed that Pieth would stay for at least another year or so
(the French delegate suggested until the UK had passed its
anti-bribery legislation),during which time delegates would
discreetly start compiling a list of potential successors.
All agreed that the new chair must speak French and probably
have a law degree, be capable of managing and inspiring a
large group, and possess strong public relations skills.
Although background on anti-corruption issues would be
desirable, the caliber of a suitable candidate should be such
that the new chair will be able to learn the substance
quickly. Funding the position of the new Chair will be an
issue, as our understanding is that the current Chair is
funded by Switzerland. USDEL will suggest adding discussion
on a new WGB Chair to the next informal MG agenda (the
working dinner following the formal MG meeting in June). In
the meantime, USDEL members will informally seek advice on
potential candidates.
CLINTON