Can “Force Majeure” Be A Justification for Corruption? Russia Believes So.

In late January of this year, the Russian Justice Ministry proposed draft legislation that would legalize corruption. More specifically, the proposal, which implements one of the recommendations of Putin’s 2018-2020 Anti-Corruption Plan, would decriminalize corruption “when non-compliance with prohibitions, restrictions, and requirements established in order to combat corruption… [is] due to force majeure”—that is, when circumstances beyond the official’s control make corruption unavoidable. Or, as the Russian government puts it, “[i]n certain circumstances, the observance of restrictions and prohibitions, requirements to prevent or resolve conflicts of interest, and the fulfillment of duties established in order to combat corruption are not possible for objective reasons.” The proposed legislation would create a commission to “assess the objectivity of circumstances” to determine if compliance was possible.

What are these alleged “objective reasons” that might establish a force majeure defense to corruption charges? In contract law, force majeure—sometimes known as an “act of God”—covers unforeseen circumstances, like natural disasters or wars, that are totally outside the control of the parties to the contract, and that make it impossible for one of those parties to perform his or her end of the agreement. But what could force majeure possibly mean in the context of corruption? What circumstances, equivalent to a war or natural disaster, could compel a government official to take a bribe, or embezzle public funds? It is difficult to imagine such a scenario. The Justice Ministry did release a preliminary statement with some initial clarification into the type of circumstances that might trigger this force majeure exemption from criminal liability. That statement noted, for example, that it may not be possible for officials to take the usual measures to prevent or resolve conflicts of interest when the officials are posted in small, remote areas. The idea seems to be that is such settings the community is so small and close-knit that it wouldn’t be feasible for an official to recuse from all decisions in which she might have personal relationships with some of the parties affected. The preliminary statement also noted that sometimes former family members (say, ex-spouses) do not agree to provide information on income and expenses of common children (information that officials are usually obligated to disclose), and that sometimes non-performance of certain duties related to anticorruption might be due to a prolonged and serious illness. The Justice Ministry promised that it would provide more specific information on what constitutes force majeure after the proposed rule’s comment period closed on February 8, 2019. The government has not yet done so, however, despite the fact that more than a month has passed.

At least some of the force majeure examples in the Justice Ministry’s preliminary statement sound reasonable, though it’s not clear whether the special exemption is really needed to deal, say, with an official who isn’t performing certain duties because of a debilitating illness. (Presumably, that official would be on indefinite leave anyway?) But the legislation is written much more broadly than these narrow examples would suggest. Would the new legislation allow individual bribe-payers and bribe-takers to assert a force majeure defense on the grounds that they didn’t create the “culture” or “system” of corruption in which they find themselves embedded? If that counts as force majeure, it would open a giant loophole allowing in Russia’s anticorruption laws, allowing anyone accused of corrupt action to argue that they felt pressured by (social) forces beyond their control. The proposed legislation could be read that way, and if it is, it would undermine efforts to combat corruption. Indeed, one cannot help but wonder if that is the exemption’s purpose. Moreover, by taking the position that certain offenses shouldn’t count as corruption at all, the proposal sends a signal that corruption is not a priority for the Russian government, thus providing room for further loosening of corruption legislation.

Now, the Russian government might be sincerely concerned about not over-punishing people who technically violated the law but do not seem sufficiently blameworthy to deserve harsh sanctions. But if that is the worry, there are other ways to address it, ones that don’t risk creating an enormous loophole in anticorruption laws and that don’t send the signal that the government might not take corruption that seriously. Here are three alternatives to decriminalizing corruption that Russia’s Justice Ministry could consider:

  • First, the government could rely on prosecutorial discretion to avoid excessive or inappropriate punishment. Rather than creating a safe haven for corrupt actors, the government should give prosecutors the discretion to consider extenuating factors when making charging decisions, and judges should be able to consider such factors in sentencing. By relying on prosecutorial and judicial discretion, perhaps coupled with specific guidelines for how to handle corruption cases, the government can accomplish its goals without all of the problems of the force majeure
  • Second, instead of instituting a blanket decriminalization policy, the government could consider an administrative system for addressing extraordinary circumstances. Under current Russian law, there is a provision that gives public servants the right to submit a statement to a Commission on Conflicts of Interest to explain why they cannot fulfill their usual obligations in reporting and resolving conflicts related to foreign bank accounts that they may hold. The government could expand this policy and allow for the public servants who face alleged force majeure-type circumstances to petition a Commission on Conflicts of Interest for an ex-ante waiver or an alternative procedure for resolving the conflict. By using an administrative commission, the government could track conflicts of interest that will arise (thus guaranteeing a minimal level of disclosure), while also allowing public servants who genuinely feel constrained to voice their predicament before violating any laws. Relying on a specialized expert body is preferable to allowing individual public servants to decide for themselves whether their specific circumstances fit within a force majeure exception, and relying on courts to decide after the fact whether they guessed right. The Commission may also have more flexibility to craft alternative compliance mechanisms, which ultimately might lead to policies that are more responsive to the issues that a public servant might face in these “impossible” situations. (Of course, the administrative waiver process would need to be structured so as to limit the opportunity for systemic abuse. After all, a “rubber stamp” for public servants to go ahead with corrupt actions might be even worse than the force majeure).
  • Third, if the Russian government is worried that following the letter of the law is impossible in certain situations, that’s a signal that the law is in need of review. The government should focus on reforming the law rather than allowing violations of that law to be excused due to “impossible” situations. For instance, instead of removing liability for not noncompliance with disclosure or conflict of interest rules in single-industry towns, the government should consider whether there’s an alternative set of rules for such settings that can be incorporated into existing law.

The Russian government may be genuinely attempting to respond to concerns about cases that do not seem to warrant criminal liability, but the tactic of decriminalizing corruption in certain contexts threatens to undermine the broader fight against corruption. Once the government begins to create holes in its anticorruption legislation, the easier it becomes for those gaps to widen and for genuine cases of corruption to fall through the cracks. Fortunately, the government can employ alternative means to address its legitimate concerns.

7 thoughts on “Can “Force Majeure” Be A Justification for Corruption? Russia Believes So.

    • I’m not sure I agree that the national security exception to the FCPA and the “force majeure” provision Signa is writing about here are really the same thing, or even that closely related. True, they both provide a defense to a bribery prosecution, but there are lots of defenses out there, and I didn’t take Signa’s concern to be the existence of a defense or exception as such. Rather, the concern is that “force majeure” seems to imply a kind of all-purpose “I couldn’t help it, there were circumstances beyond my control” defense, which if not properly cabined could open the door to a wide range of defendants claiming that “uncontrollable circumstances” made it impossible to comply with anticorruption rules. By contrast, a national security defense isn’t so much an “I coudln’t help it, I violated the law due to forces beyond my control” defense so much as it is an “I did this for a legitimate, state-sanctioned reason” kind of defense.

      There’s surely an important debate to be had about both, but I resist the idea that they are “basically the same thing.”

  1. Thanks for this thoughtful post. The Russian government appears to be opening the door or even implicitly endorsing what some have called “grease the wheels corruption” (see here for an interesting discussion of its applicability in China and Xinping’s fight against it- http://harvardpolitics.com/world/greasing-wheels-secret-benefits-corruption/) . I’m curious to hear why the government thinks this is a good idea- are the corruption reporting requirements really that onerous? If so, I’d agree with you that a review of the law is in order. Does this at all relate to concerns about stifling growth? What is driving this change? With the vast political and economic differences between Russia and the US, I am skeptical how comparable the US motivation for the FCPA exemption might be.

  2. Signa, thanks for this fascinating post. In trying to think of examples of how a bribe payer might be compelled to pay a bribe, the best I can come up with is, say, someone fleeing a flood zone and being forced to pay a bribe to pass a police roadblock, or to get petrol for their vehicle or something like that. But this strikes me as more of a “duress” or “necessity” type offense, that might already exist in Russian criminal law (as they do in the U.S.). In which case, you wouldn’t need new force majeure legislation, unless you wanted to broadly signal that certain forms of corruption are tolerated. Additionally, as I’ve written out and thought about this comment, the idea of force majeure justified corruption seems ever stranger. In contract law, force majeure prevents the performance of a previously agreed upon transaction. But in the corruption context, force majeure is supposed to compel parties to enter into a transaction, one they’d still have to willingly agree to/participate in? And if the idea is that agreeing to the transaction isn’t willing or is compelled, isn’t that the duress or necessity defense again? If you know whether those types of defenses are available in Russian law, I’d be very curious to hear, as that might effect how we think about this proposed legislation. Thanks!

  3. Thank you for bringing this fascinating issue to the blog. I can’t help but think this broad measure is, as you suggest, designed to perpetuate corruption rather than simply permit it when circumstances require. While there may be pragmatic arguments favoring it, they seem flimsy in view of the blatant corruption it appears to authorize.

    That said, has there been any political blowback from the opposition over the proposal? If so, how has Putin’s government responded? I’d be interested to know if Russians find the measure’s justifications convincing or if they see it as I do.

    • I think it will depend on the implementation and judicial interpretation. If the force majeure full definition in the law is “when circumstances beyond the official’s control make corruption unavoidable” as provided here, then there is a lot of discretion for the courts – and a lot of space for abuse as a result. But the courts still will have a chance of forming consistent practice that would actually make sense.

      However, being a foreigner and thus potentially not aware of the actual context, I have to say I have a problem understanding why this was needed in the first place… I mean, if there is a flood like in Jason’s example, I think there should already be other legal defenses available in the criminal law to deal with it probably…?

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