Monthly Archives: December 2014

Whistling in the Dark: The Potential Benefits of Withdrawing Anti-Retaliation Protection from Foreign Whistleblowers

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When the US Congress enacted the Dodd-Frank Act in 2010, it provided the Securities and Exchange Commission (SEC) with two powerful tools to encourage whistleblowers to report violations of the Foreign Corrupt Practices Act (FCPA) and other federal securities laws. First, whistleblowers can potentially receive a “bounty” of 10-30% of the monetary damages assessed against a company. Second, whistleblowers are shielded from their employers’ ire via an “anti-retaliation” provision, which affords whistleblowers a private cause of action for wrongful termination, harassment, or other discrimination associated with their report.

While many observers initially believed that these measures applied equally to all whistleblowers, the U.S. Court of Appeals for the Second Circuit recently held in Liu v. Siemens AG that the Dodd-Frank Act’s anti-retaliation provision does not have extraterritorial effect–it cannot be invoked by a foreign whistleblower against a foreign corporation (even though the corporation is listed on a US exchange), if none of the relevant conduct took place in the United States. The Second Circuit is the first Court of Appeals to adopt this position and, as some commentators have noted, this ruling creates an odd imbalance in the Dodd-Frank Act’s whistleblower provisions: in certain cases involving foreign whistleblowers and foreign companies, although whistleblowers might be eligible to receive significant monetary rewards under the Dodd-Frank Act’s bounty provision, they will nonetheless not be able to invoke the Act’s anti-retaliation provisions if their employer takes action against them.

Putting aside the question of whether the Second Circuit’s legal analysis was sound, as a matter of policy this may, at first glance, seem like a perverse result. Yet this seeming disconnect between the reach and scope of the Dodd-Frank Act’s bounty and anti-retaliation provisions may result, paradoxically, in an improvement in both the volume and content of whistleblower reports.  Continue reading →

Crowdsourcing the Fight Against Fake Drugs

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Producing and selling falsified medicines—fake drugs deliberately labeled as real and sold to consumers—has been described by the Institute of Medicine as “the perfect crime.” The industry tops $200 billion annually and in Africa alone is responsible for 100,000 deaths each year. The WHO identifies corruption as one of the biggest challenges to keeping these drugs off the market, but the number of access points all along the supply chain—at the point of manufacturer, in customs offices, at distribution centers or individual pharmacies—make reining in corruption a gargantuan task. Governments may squeeze one area—say stricter regulation of customs offices—only to find distribution centers being turned into drug swap shops.

We may, however, be witnessing a shift in how governments approach these issues, moving from confronting corruption head on—which has met with mixed results—to simply circumventing it. The Nigerian experience is noteworthy. Nigeria’s National Agency for Food and Drug Administration (NAFDAC) has teamed up with Sproxil, a product verification company, to allow consumers to individually verify the authenticity of their drugs. NAFDAC is effectively crowdsourcing its falsified medicines anti-corruption efforts, and with some very positive results. Continue reading →

Guest Post: Global Shell Games — Experimenting with Untraceable Shell Companies

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GAB is delighted to welcome back guest contributor Professor Jason Sharman of Griffith University, Australia, who contributes the following post:

Among the various mechanisms for hiding and laundering large sums of money associated with corruption, shell companies that cannot be linked with their real owners have proved one of the most troublesome. A 2011 Stolen Asset Recovery Initiative report on laundering the proceeds of grand corruption noted that from a total of 213 cases, 150 involved the use of shell companies (or, more rarely, trusts) to launder $56.4 billion. Since 2003, all those governments bound by the standards of the Financial Action Task Force (FATF) have promised to ensure timely access to information on identity of those owning shell companies, and FATF rates member countries according to their compliance and the overall level of risk they present. Despite (or perhaps because of) a renewed stress on tracing shell companies’ beneficial (i.e. real) owners, most recently at the G20 leaders’ summit in my home state of Brisbane, there are good reasons to be skeptical about whether the standards are really enforced.

Frustrated with the poor measurement of policy effectiveness in this area, Michael Findley, Daniel Nielson, and I decided to try a new approach. We ran a real-world experiment to see whether corporate service providers would comply with the rules on client screening, particularly in cases where the client profile raised “red flags.” Our findings, reported in our book Global Shell Games, were both worrying and counter-intuitive. Continue reading →

Corruption Risks in the Criminal Justice System

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The U4 Anti-Corruption Resource Center has just published the introductory chapter to a new U4 issue paper, Corruption Risks in the Criminal Justice Chain and Tools for Assessment.  The forthcoming paper has separate chapters that examine where corruption is most likely to arise in the 1) investigation, 2) prosecution, and 3) trial of a criminal case and in 4) the detention of suspects and incarceration of convicted defendants.  The chapters also describe what tools exist to to assess these risks.  The introductory chapter, co-authored by this writer, summarizes the four chapters.

U4 will release the other four chapters one by one in January 2015.  Join U4’s linked-in group for updates and to interact with the authors who will answer questions and respond to comments in these weeks:

Happy International Anti-Corruption Day!

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As some readers of this blog already know, today (December 9th) is International Anti-Corruption Day. Other readers may be wondering, “Huh? International Anti-Corruption Day? What’s that?”

I’m glad you asked. When the UN Convention Against Corruption (UNCAC) was opened for signature in 2003, the General Assembly’s resolution included a specific plank “decid[ing] that, in order to raise awareness of corruption and of the role of [UNCAC] in combating and preventing it, 9 December should be designated International Anti-Corruption Day.” (And you thought the UN General Assembly never decided anything important. Shame on you.)

So what should you do to celebrate International Anti-Corruption Day? It’s easy to make fun of things like this — and as should be clear, that’s a temptation I can’t entirely resist. But at the same time, I do think that raising awareness of the issue is important. And though I can’t find much about attention-raising activities in conjunction with this year’s International Anti-Corruption Day, apparently last year the UN tried to take the opportunity to launch a campaign — with slogans, Tweets, etc. — to get more attention to the issue. You can check out their website on how to “celebrate” International Anti-Corruption Day here.

One last Anti-Corruption Day thought: As I said, I’m all for raising more awareness. But at the risk of sounding like a Grinch, I think it’s fair to raise the question whether publicity gambits like this are starting to outlive their usefulness. Many in the anticorruption community–particularly those who started working on these topics in the 1990s or earlier, when it was definitely treated as marginal in many quarters–have spent a lot of time and energy trying to raise awareness about the issue. And the thing is, they’ve succeeded. The international community is aware of the problem, and takes it seriously (at least in the sense of acknowledging corruption as a legitimate concern). As I see it, the anticorruption movement is now in a tricky transitional phase: The first generation won an important battle, by getting corruption on the international agenda. The new generation needs to make more progress on figuring out what exactly to do about it. So by all means, use the International Anti-Corruption Day gimmick as a way to raise awareness. But at the same time, let’s recognize that we’re reaching the point where raising awareness isn’t really a central issue anymore.

Sunlight and Secrecy: Whistleblowing, Corruption, and the NSA

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While press coverage of the US National Security Agency (NSA) has been dominated by revelations, and concerns, regarding the scope of the NSA’s surveillance programs, recently this organization has been in the news for an altogether different reason. A number of recent articles have highlighted the remarkably porous nature of the relationship between the NSA and the private sector as well as potentially improper conduct on the part of a number of NSA officials. In October alone, several stories emerged regarding the fact that: (1) the husband of a high-ranking NSA official was registered as the resident agent of a private signals intelligence consulting firm located at the pair’s residence while the official herself served as the resident agent for an office and electronics business, also headquartered at her home; (2) the NSA’s Chief Technical Officer had been permitted to work for up to 20 hours a week for a private cybersecurity firm while still holding his post; and (3) the former head of the NSA had founded a private consulting company shortly after his retirement in spite of the fact that many commentators have questioned the degree to which he will be able to set aside confidential information he learned during the course of his time as the head of this organization.

To be clear, while a few commentators have thrown around the term “corruption” when discussing the apparent impropriety of some of these arrangements, there have been no allegations that the officials involved broke any laws or otherwise acted in a manner that can be deemed “corrupt” in any formal sense. Nonetheless, this cluster of incidents provides an opportunity to pause and reflect upon the inherent difficulties of identifying and addressing instances of corruption within the context of an organization which is extremely insular and unavoidably secretive. More specifically, the crucial part that whistleblowers and the media have played in bringing these incidents to light raises the question of what role, if any, we believe that greater transparency may play in exposing instances of corruption within the NSA. Sunlight may be the best disinfectant, as Justice Brandeis famously noted, but can or should it play a role when the organization in question is, by necessity, shrouded in secrecy?

Continue reading →

Policing Private Parties: How to Get Kleptocrats’ Seized Assets to their Citizens

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As Rick has pointed out, it is exciting to see the successful forfeiture of U.S.-based assets owned by sitting Vice President of Equatorial Guinea, kleptocrat and international playboy Teodoro Nguema Obiang Mangue (“Obiang”). The Department of Justice estimates that the assets are worth an estimated $30 million. Also encouraging is the fact that the bulk of the settlement funds will be returned to the people of Equatorial Guinea. This is the first case in which the assets of a current leader’s cronies will be seized and repatriated to the country of origin by the U.S. Disbursing millions of dollars transparently in country that ranks 163/177 on Transparency International’s Corruption Perception Index will be challenging.

In stolen asset repatriation cases, the debate over disbursement typically boils down to whether to channel reclaimed cash through the government or through private actors. In Equatorial Guinea, returning the money directly to the government is a non-starter: the Obiang family has an extensive record of human rights and corruption abuses and a tight grip on power. The DOJ settlement accordingly cuts the government and its henchmen out of the forfeiture proceeds and channels repatriated funds through a private charity. But simply relying on private actors will not eliminate corruption challenges; there are pitfalls in channeling aid through private NGOs as well.

The DOJ should keep the following risks in mind as works out a disbursement plan for the Obiang settlement funds: Continue reading →

Transparency International Makes Its Data Less Transparent: Why TI Should Be Ashamed of Its 2014 CPI Report

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For all its flaws, I’ve long been of the view that Transparency International’s annual Corruption Perceptions Index (CPI) has, on balance, made a positive contribution to our understanding of corruption, and the fight against it. (A couple of my sympathetic treatments can be found here and here.) Although some in the media (and, depressingly, some in academic and policy circles) misuse the index, TI has generally been quite clear about what the CPI numbers do and do not tell us.  And to its great credit, TI has proven remarkably receptive to criticism: each year TI’s annual CPI report has become better, clearer, more nuanced, and more transparent in its limitations.

Until this year. The 2014 CPI came out yesterday, and I’m disappointed at how TI has taken a big step backward, making the meaning of its scores less transparent, and choosing to play for catchy headlines rather than to deepen understanding. Continue reading →

Just How Relevant for Developing Nations is Singapore’s Experience Combating Corruption?

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Policymakers in developing countries hunting for relevant examples of successful efforts to combat corruption are often urged to look to Singapore. (Click here, here, and here for representative publications.) Not only does it regularly score at or near the top of Transparency International’s Corruption Perceptions Index (in seventh place in the just released 2014 index) but its history is similar to that of developing nations.  For much of the modern era it was under colonial rule, becoming fully independent only in 1965, and independence followed a turbulent decade marked by insurgency and social upheaval.  Again like many of today’s developing nations, at independence it had a backward economy and poorly educated citizenry.  Its success in lifting its citizens out of poverty and creating a modern economy, often attributed at least in part to how well it has done in curbing corruption, makes it an all the more attractive model for developing states.

But Singapore differs in so many critical ways from these nations that its relevance for their development is questionable at best. Continue reading →

Guest Post: The OECD Phase 3 Report on Turkey

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GAB is pleased to welcome back Gönenç Gürkaynak, the managing partner and head of the Regulatory and Compliance Department at ELIG, Attorneys-at-Law (Istanbul), who contributes the following guest post:

The OECD Working Group on Bribery (“WGB”) has published its Phase 3 Report on Turkey, following the Phase 2 and Phase 2Bis Recommendations (“Follow-Up Report”) of March 2010, to assess Turkey’s efforts in implementing the OECD Anti-Bribery Convention. The Phase 3 Report is dominated by criticism of Turkey’s low level of enforcement and its inaction with respect to detecting, investigating, and prosecuting acts of foreign bribery. This result is consistent with the assessment provided by Transparency International in its 2014 Exporting Corruption report, which found that Turkey had “little or no enforcement” of its foreign anti-bribery laws. Indeed, despite the fact that Turkey is the 17th largest economy in the world, and has trade relations with many countries presenting potentially high risks of foreign bribery, Turkey has had only six foreign bribery investigations (only one of which was a result of pro-active detection by Turkish authorities) and no foreign bribery convictions in the 14 years since the Convention entered into force in Turkey. Thus the Phase 3 Report is yet another reminder that Turkish law enforcement regarding foreign as well as domestic bribery has still a long way to go.

As one might imagine given the disheartening enforcement statistics just noted, many of the WGB Phase 3 recommendations emphasize the need for improvements in Turkey’s mechanisms for gathering information to ensure effective detection of foreign bribery allegations and to enhance investigations by engaging with other investigative authorities. But there are three other important features of the Phase 3 report that are at least as important, and deserve more attention: First, the ambiguity of Turkey’s corporate liability laws; second, the inadequacy of Turkey’s whistleblower protections; and third, the significance of Turkey’s recent controversies over domestic anticorruption enforcement issues. Continue reading →