Monthly Archives: January 2015

Removing Barriers to Private Actions Against Corruption by Liberalizing Standing Doctrine

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Although most countries have traditionally relied on public bodies to enforce anticorruption laws, frustration with the ineffectiveness of public enforcement has led a growing number of activists and scholars to champion private lawsuits as an additional tool in the anticorruption arsenal (see, for example, here and here). Not only can private enforcement supplement government enforcement, but (as I have discussed previously) private enforcement can push public enforcers to do their job more scrupulously. However, in many jurisdictions private actions to enforce anticorruption laws face a daunting obstacle: the doctrine of standing (known in some jurisdictions by its Latin name, locus standi). The difficulty is that most corruption cases do not have an identifiable victim, or an aggrieved person in its traditional sense. For this reason, in many jurisdictions, those parties (often civil society NGOs) attempting to bring private suits against corrupt actors may be deemed not to have the requisite standing.

The question, then, is whether it is possible and desirable to adopt a broader conception of standing, one that would entitle citizens or NGOs to initiate actions against corrupt actors, even if the complainants cannot establish that they were personally and directly injured by the alleged corrupt conduct. Proponents of a restrictive interpretation of standing doctrine tend to argue that a more expansive notion of standing could inundate the courts with weak cases, including cases brought by vexatious litigants without a genuine interest in the underlying allegations. But these concerns are exaggerated. It is quite possible, as several jurisdictions have already demonstrated, to liberalize standing doctrine to empower private anticorruption plaintiffs without opening the floodgates of meritless litigation. Moreover, the legitimate concerns about abuse of the judicial process can be addressed in other ways. Continue reading →

Anticorruption Bibliography — January 2015 Update

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An updated version of my anticorruption bibliography is available from my faculty webpage.  A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here.  As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

National Anticorruption Strategies: A Request for Assistance

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GAB editor-in-chief Matthew Stephenson and I have been asked by the United Nations Office on Drugs and Crime, which serves as the Secretariat to UNCAC’s Conference of States Parties, to write a guide to support the development and implementation of effective and sustainable national anti-corruption strategies.  The guide will contain an outline of the key stages in the development of a national strategy, an explanation of the role different stakeholders can play in developing it, models for implementing a strategy, and a discussion the methods for monitoring and evaluating its implementation. Good practices and success stories at all stages of the process — development, implementation, monitoring and reporting — will be highlighted.

We are in the early stages of collecting information and would welcome readers help in identifying useful materials: copies of national strategies, evaluations of their effectiveness, and so forth.  We will of course build upon the fine analysis of Asian countries’ experiences with national strategies that the UNDP Bangkok office released in December, which I wrote about here.  We also have the very useful policy notes posted on the websites of U4 and TI.

To date we have identified 60 plus the countries that have or have had a national anticorruption strategy.  They are listed below.  Additions to this list would also be welcome.

Afghanistan, Albania, Armenia, Australia, Azerbaijan, Bhutan, Bosnia And Herzegovina, Bulgaria, China, Croatia, Czech Republic, Egypt, Estonia, Ethiopia, Georgia, Ghana, Greece, Haiti, India, Indonesia, Iraq, Jamaica, Jordan, Kenya, Kosovo, Kuwait, Kyrgyz Republic, Latvia, Lithuania, Macedonia, Malawi, Malaysia, Maldives, Moldova, Mongolia, Montenegro, Mozambique, Namibia, Nepal, Pakistan, Palestine, Papua New Guinea, Philippines, Poland, Romania, Romania, Russia, Saudi Arabia, Serbia, Sierra Leone, South Africa, Southern Sudan, Tajikistan, Tanzania, Thailand, Uganda, UK, Ukraine, Vietnam

Anything from newspaper stories to policy papers to academic analyses would be appreciated.  Thanks to Google translate, we will be happy to receive material in any language. You can post suggestions either as a comment on this post, or send your input using the contact page. Thanks in advance!

Guest Post: Fighting Corporate Corruption in Thailand, Part One — Securities Regulation

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Karin Zarifi, an independent consultant to the Securities and Exchange Commission Thailand, contributes the following post (the first in a two-part series on combating corporate corruption among Thai public companies):

In Thailand, despite increased focus on anticorruption, corporate governance and Corporate Social Responsibility (CSR) improvements in the private sector (see, e.g., here and here), the Thai business community does not seem convinced that anticorruption is in its interest, at least short-term. Only last April, companies listed on the Stock Exchange of Thailand (SET) were telling the Thai Securities and Exchange Commission (SEC) that they were unwilling to stay away from paying “tea money” (that is, bribes), for fear of losing out to competitors. Yet the last nine months have seen considerable progress on this front.

Some of the progress has been driven by private sector initiatives, including initiatives spearheaded by the SET. I will discuss these in my next post. But much of the progress has been driven by the Thai SEC. As Jeena Kim pointed out in a recent post on this blog (in the context of South Korea) securities regulators are well-positioned — and often better-positioned than public prosecutors — to take effective action against corporate corruption. But whereas Ms. Kim highlighted the Korean securities regulator’s ability to enforce South Korea’s foreign anti-bribery laws, the Thai example illustrates how securities regulators can encourage the development of a culture of compliance, good corporate governance, and corporate social responsibility more generally, using tools beyond simply enforcing the securities laws. Continue reading →

Rescission of Contracts and Revocation of Licenses As Means to Combat Corruption

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Article 34 of the UN Convention Against Corruption (UNCAC) generally requires that each State Party “take measures … to address the consequences of corruption.” In recognition of the fact that government contracts and licensing processes have been among the areas most prone to corruption and bribery–and of the fact that the threat of criminal punishment may not be a sufficient or even viable deterrent to such corruption–UNCAC Article 34 further declares that “States Parties may consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument or take any other remedial action.” Although that second sentence of Article 34 is not mandatory, State Parties–particularly demand-side countries with an unfortunate reputation for corruption in government contracting (such as Kenya, Guinea, Indonesia and Philippines) should adopt that principle into their national laws.

Law providing for the nullification of contracts or concessions procured through corruption would be a strong deterrent to bribe-paying by firms. Although such bribery is already illegal, in some cases criminal punishments are simply insufficient to deter corrupt practices conducted in demand-side countries. Often the threat of sanctions is low, and even though some companies have been hit with substantial sanctions, this loss has been mitigated by the profits acquired by the operation of the tainted contract or license. And a company might think twice before acceding to a bribe demand from a lower-level public official (or even a high-level official) if the company knows that, by paying the bribe, they may be putting the whole contract in jeopardy if the government later decides it wants to reneg on the deal. Moreover, if a demand-side country were to adopt a law that allows for nullification of any government contract or concession procured through corruption, it would send strong signals to that international community that this country will no longer tolerate these corrupt practices. Continue reading →

Corruption in Turkey Poised to Worsen

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A year ago, a spate of corruption allegations leveled at high-ranking officials in Turkey’s ruling Justice and Democracy Party (AKP) placed the country’s graft problem and political tumult squarely in the international spotlight. Prosecutors alleged misconduct involving over $100 billion by more than 90 top officials, including then-Prime Minister (now President) Recep Tayyip Erdogan’s son. AKP supporters believe the charges were politically motivated, pursued by supporters of Islamic cleric Fethullah Gulen in an effort to undercut the AKP. (Gulenists, whose marriage of convenience with the AKP dates back to the early 2000s, had secured key positions in the bureaucracy, police, and judiciary. But Erdogan’s growing power and disagreements over foreign policy strained the alliance, and tensions between the two grew.) In a swift response many believe was led by Erdogan, thousands of police were removed from the corruption probe. Prosecutors and judges were likewise dismissed, and the AKP-dominated Parliament passed a bill restructuring the Supreme Council of Judges and Prosecutors (HSYK) to give the political branches greater control over the judiciary.

Erdogan’s government put the nail in the corruption investigation’s coffin last month with a bill that bolsters executive police powers at the expense of the judiciary’s oversight function. In brief, the new law reduces the power of incumbent judges in two top courts through a restructure and proscribes broader search and seizure power to police. Both moves are designed to give the AKP the upper hand in future disputes with the judicial branch.

The erosion of judicial independence will make anticorruption prosecutions more difficult in the future. But Turkey’s problems run deeper. In short, these recent developments are merely an extension of a corrosive pattern of governance and weakening rule of law: (1) a steady expansion of executive power and (2) infringements on freedom of expression–developments that have been countered, if at all, by (3) an illiberal counterweight, in the form of the Gulen movement. Getting corruption in Turkey under control will require tackling each of these three underlying causes.

Continue reading →

Can Giving a Benefit to a Third Party Count as Bribing a Foreign Official? Yes, No, or Maybe So?

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One of the things I enjoy most about participating in the anticorruption blogosphere is the opportunity to engage in serious, substantive debates with smart people who think differently about these issues than I do. The exchanges are helpful, even when they fail to eliminate the disagreement. Case in point: My friendly sparring with Professor Andrew Spalding about the investigation of the JP Morgan “Sons & Daughters” program in China, which raises the question about whether offering a job to a foreign official’s child (or other friend or family member) can violate the anti-bribery provisions of the Foreign Corrupt Practices Act. Professor Spalding, in a four-part series of posts on the FCPA Blog last summer (see here, here, here, and here), says no. (He further claims that the US government already took that position in a couple of DOJ Opinion Releases from the early 1980s, and that a DOJ reversal of that position would therefore be an affront to the rule of law). In my post last week, I disagreed, and argued that–depending on the facts of the case–it’s at least possible (perhaps even likely) that JP Morgan’s activities violated the FCPA, and more generally that offering something to a third party can, under some circumstances, count as offering an improper benefit to a foreign official under the FCPA.

Professor Spalding has now posted a thoughtful reply on the FCPA blog. While I continue to disagree with his analysis, the exchange has been helpful (at least for me) is elucidating an important distinction in how we analyze potential FCPA violations–that between conduct that may violate the FCPA (under the right factual circumstances) and conduct that always or never violates the FCPA. Appreciating this distinction is key–in my view–to understanding where Professor Spalding goes wrong (though I suspect he will continue to disagree!). While I don’t want to go round and round in circles on the same issues, let me take one more crack at what I view as the key point: Continue reading →

Combating Corruption in Uganda or Merely Displacing it: The World Bank’s Public Expenditure Tracking Survey

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A World Bank-initiated effort to reduce corruption in school funding in Uganda is widely, and rightly, celebrated for its results (click here and here for background).  In the early nineteen nineties on average 87 percent of the monies the Ugandan central government budgeted for textbooks and other school supplies “leaked out” somewhere between departing the Finance Ministry and arriving at the school house front door.  Yearly data revealed that 73 percent of the schools received less than five percent of the monies to which they were entitled, and only ten percent received more than half.  The 1996 Bank project had an immediate effect on the rate of losses.  By 1999 the government found schools were receiving on average 95 percent of what they were supposed to receive, and a 2002 World Bank study likewise showed a sharp drop in fund leakage.

The dramatic improvement is attributed to the enormous publicity the data on losses garnered.  Parents were outraged and the government and donor agencies embarrassed.  Within the development community, the Uganda Public Expenditure Tracking Survey, as the work to dig out and publicize the loss data became known, has been enormously influential, the story becoming a parable for how to fight corruption.  A Uganda-like PETS project is now routinely prescribed for attacking corruption in public expenditures, and a Google search on “Uganda PETS” yields over 100,000 hits and returns some 20,000 citations on Google scholar.

But for all the attention the effort has generated, there is evidence that it may not have had any impact on the level of corruption in Uganda.  It is possible that all it did was force those raking funds off the school fund program to turn elsewhere.  The Uganda PETS thus may simply have displaced the corruption in the school funding program rather than ending it. Continue reading →

Guest Post: Fighting Corruption in Anti-Deforestation Programs — The Case of REDD+

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Aled Williams, Senior Advisor at the U4 Anti-Corruption Resource Centre, contributes the following guest post:

The protection of tropical forests is a hot topic, particularly in light of the pressing threat of global climate change. The 2014 UN Climate Summit saw a range of national and subnational governments, along with numerous business and civil society organizations, endorsed the New York Declaration on Forests, which set a timeline for cutting natural forest loss in half (by 2020) and ending it completely (by 2030). A major goal of the declaration is to agree at the upcoming UN Climate Change Conference in Paris is to reduce deforestation and forest degradation as part of a post-2020 global climate agreement. And financial contributions are now stacking up, with more than USD 9.6 billion pledged by 22 countries to the UN’s Green Climate Fund.

Securing a global climate agreement that includes tropical deforestation would no doubt be a historic achievement. But once world leaders return from Paris next year, the proof of the pudding will lie in national implementation. They may well wish to consider what can be learned from recent schemes for Reducing Emissions from Deforestation and Forest Degradation (known as REDD+), to date largely funded by the Norwegian government through bilateral arrangements with major deforesters like Indonesia and Brazil, but also channeled through multilateral agencies. It turns out that even when donors have pledged substantial amounts of money, spending that money effectively can be challenging. A major part of that challenge relates to the difficult political-economy of forest sector reform in developing countries, where corruption in its various guises can be a core feature. Indeed, despite being described as a potential game-changer for addressing tropical deforestation, REDD+ financing also risks increasing corruption and related problems like land grabbing.

These challenges are not new and indeed were well-known among Norwegian aid practitioners as REDD+ pilots began some four years ago. But the U4 Anti-Corruption Resource Centre has just completed a three year research project–based on case studies of REDD+ pilots in the DRC, Indonesia, Kenya, the Philippines, and Tanzania–that sheds some new light on the issues. The report’s empirical findings suggest three main lessons: Continue reading →

The Giving Trees: Fighting Corruption in the Timber Industry with Technology

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The 3-hour drive from the port city of Douala, Cameroon to the capital, Yaoundé, is unsettling–and not just because drivers hurtle down the road, careening around blind curves into oncoming traffic. What is more worrying is that the oncoming traffic is comprised largely of huge lorries on their way to the shipyards transporting some of the biggest trees I’ve ever seen. After passing 10-15 trucks on my first trip, I started to wonder where the trees were coming from and how they could possibly be arriving in such a steady stream. Perhaps this large-scale lumber harvesting is not by itself all that unusual. But the facts that Cameroon ranks 144/177 on Transparency International’s Corruption Perception Index, and that nearly two-thirds of these round logs leave the country destined for China–the world’s largest importer of illegally-sourced timber–raise red flags.

Indeed, illegal logging in southern Cameroon and the rest of the Congo Basin is a serious problem, contributing to the destruction of 2.5% of the world’s second largest rainforest over a single decade. Studies show that in two of Cameroon’s nearest neighbors, Gabon and the Democratic Republic of Congo (DRC), illicit logging could account for as much as 70% of the timber market. In fact, the entire greenbelt envelops countries where corruption is rife – India, China, Brazil, Peru, Indonesia, Ethiopia, DRC, Nigeria – and the links between corruption and over-logging have been widely studied by the likes of TI, U4, UNODC, and the World Bank.

Current efforts to address poor governance of the timber industry are admirable but insufficient. The EU FLEGT Action Plan and the US Lacey Act regulate trade in wood and ban the importation of illegally sourced goods. Under the FLEGT Plan, Cameroon and the EU agreed to a licensing scheme to promote proper forest management. But no such regulation exists in China, a market that has boomed over the past 15 years largely in response to American demand for manufactured wood products. Furthermore, as the US Environmental Investigation Agency has shown in the Peruvian market, transparent trade depends on formal paperwork – export permits, certificates of origin, etc. – that are easily forged and exchanged on the black market. As a result, the same study points out, American importers often remain culpable, despite regulations.

We need a coordinated global response that can be effective independent of manipulable documents. What might this answer look like? A major component might well be the deployment of new technologies and scientific techniques to verify the origin of timber and timber products. Continue reading →