Monthly Archives: March 2016

How Asset Return Agreements Can Bolster Reform: The Kazakh Experience

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Guest contributor Robert Packer last week highlighted what can be the most contentious issue presented by the U.N. Convention Against Corruption – a request for the return of assets stolen as a result of corruption.  One reading of the convention seems to give countries victimized by corruption an absolute, unrestricted right to the return of the proceeds of corruption located in a second state.  But as Robert observed, states holding stolen assets can be reluctant to return them to a country where the chances the assets will again be lost to corruption are high and can find language in the convention arguably giving them the right, if not to keep the assets, to make return conditional on the requesting state taking steps to ensure the returned assets benefit citizens rather than again being stolen.  While there is always the danger that conflict over whether a return should be unrestricted or conditional will become acrimonious, a recent experience shows the result can also lead to a solution that benefits all parties. Continue reading →

Guest Post: High Level Reporting Mechanisms — A Promising New Tool To Fight Corruption

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GAB is delighted to welcome back Gönenç Gürkaynak (Managing Partner at ELIG Attorneys-at-Law in Istanbul and 2015 Co-Chair of the B20 Anti-Corruption Task Force), who, along with his colleagues Ç. Olgu Kama (ELIG partner and B20 Anti-Corruption Task Force Deputy Co-Chair) and Burcu Ergün (ELIG associate), contributes the following guest post:

One of the most promising new tools for eradicating public sector corruption, especially in public procurement, is the so-called High Level Reporting Mechanism (“HLRM”), a concept that began under the 2012 G20 process and that has been advocated by various international institutions (mainly by the Basel Institute and the B20). An HLRM provides a reporting channel that companies can use to report corrupt behavior they encounter during a public process, such as a tender. An HLRM presents an alternative mechanism to companies who need to deal with corruption allegations swiftly, rather than waiting for the outcome of a criminal investigation. An HLRM can also provide an enforceable independent mechanism to resolve commercial disputes in countries where criminal law enforcement is unduly influence by politics. To be clear, an HLRM does not aim to replace formal, judicial reporting channels. Rather, the HLRM is used for rapid response and is advantageous particularly in situations where a swift clarification is critical for business, as when allegations of corruption affect a tender process that is still open. By quickly resolving such claims, an HLRM can both deter potential perpetrators and will generate more public trust in the procurement process. Continue reading →

Dear International Anticorruption Court Advocates: It’s Time to Answer Your Critics

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Over the last year or so, proposals for an International Anti-Corruption Court (IACC), modeled on (but distinct from) the International Criminal Court (ICC), have attracted an increasing amount of attention in the anticorruption community and beyond. This attention is due in part to the understandable frustration with the continued impunity of many kleptocrats, and in part to the instinctive attraction (in some quarters) to international judicial solutions to political problems. It’s also the result of the dogged and determined advocacy of IACC proponents. As some readers of this blog probably know, I’m skeptical. But I nonetheless admire the IACC advocates for their willingness to think creatively and to spark an important debate.

That admiration, however, is waning, and the reason is simple: For all their talk about wanting to start a conversation, IACC advocates have shown surprisingly little interest in engaging, in any serious way, with substantive objections to the proposal. It’s now over 18 months since the campaign for an IACC began. Very early on, sympathetic but skeptical critics—including me, as well as several others (see here and here)—raised a number of serious questions and concerns. These concerns are not minor details about implementation—they go to the heart of the proposal, and if the criticisms are on the mark, then the whole enterprise is misguided. Now, maybe the criticisms are not well-founded; maybe there are good answers to all of them. Yet so far IACC advocates have not really provided those answers. (To be fair, the main pro-IACC webpage includes an FAQ section that purports to offer some preliminary responses, but to call those responses “thin” would be generous.) When pressed, IACC advocates have a tendency to respond with one or both of the following rejoinders: (1) “Corruption is really bad—don’t you want to stop it?”; (2) “The critics have raised a number of concerns that will need to be addressed when we work out the details of the proposal.” But nobody in this debate seriously disputes the harms of corruption, and the criticisms that have been raised are not about minor details. At this point, if IACC advocates are serious, they need to offer more than that, and what’s to be found on the brief FAQ page.

Just to recap the main objections: Continue reading →