Specialized Anticorruption Courts: The Updated U4 Paper and Panel

Last month, I posted an announcement regarding a panel, which I moderated, at the U4 Anti-Corruption Resource Centre, on specialized anticorruption courts, which was held in conjunction with the release of the updated U4 Issue paper on that topic. (The original paper, which I coauthored with U4 Senior Advisor Sofie Schütte, was published in 2016.) Several readers who were not able to attend the livestream of the panel expressed interest in seeing the video recording, and I am pleased to say that the video is now available here.

The description of the panel, as it appears in the U4 website linked above, is as follows: Continue reading

Passing Whistleblower Legislation Is the Next Step in the DRC’s Fight Against Corruption

In November of 2021, over 3.5 million documents were leaked from a bank in the Democratic Republic of the Congo (DRC). This so-called “Congo Hold-Up” leak, which included bank statements, emails, contracts, and corporate records, revealed that former Congolese President Joseph Kabila and his inner circle embezzled at least $138 million in public funds between 2013 and 2018. Investigations by media outlets and NGOs exposed a pervasive network of corruption involving the DRC’s Central Bank and national electoral commission, as well as the country’s minerals-for-infrastructure deal with China, a United Nations peacekeeping mission in the Central African Republic, and more. In response, the head of the DRC’s Inspectorate General of Finance (IGF) condemned the bank’s role in facilitating the corruption, and the Congolese Minister of Justice announced the opening of an investigation to address the allegations. 

Complex corruption schemes such as the one described above are often revealed by whistleblowers. The DRC in particular has a history of whistleblowers exposing corruption, often at great personal risk (for example, here and here). Yet instead of being publicly recognized for their contributions and afforded government protection, these whistleblowers are forced to conceal their identities to avoid retaliation by those they exposed. Their fears are well-founded: The DRC offers little to no legal protection for whistleblowers, and many Congolese whistleblowers have been forced into hiding or exile due to threats, intimidationassault, and even death sentences. This must change. It is high time for the DRC to pass comprehensive whistleblower protection legislation, and there may be an unusual window of opportunity to do so now.

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Foreign Law Enforcement Agencies to Get U.S. Beneficial Ownership Information

The cause of financial transparency just recovered some of the ground recently lost when the European Court of Justice struck down the EU directive on public access to corporate ownership data. Last Friday the U.S. Financial Crimes Enforcement Network (FinCEN) published draft regulations prescribing how certain limited — but quite important – members of the public can obtain information on the actual, beneficial owners of U.S. corporations.

The privileged group consists of law enforcement personnel. And significantly for the global fight against corruption, they include those from non-American as well as American agencies.

The rules for domestic agencies are straightforward, those for non-U.S. authorities less so as they incorporate the conditions Congress put on foreign agencies’ access. The request must be for a law enforcement purpose or national security or intelligence activity; it must be transmitted through a U.S. law enforcement intermediary, and the requesting government must have either an “applicable treaty” with the U.S. or else be a “trusted foreign government.”

For corruption-related cases these conditions would appear to pose no real hurdle. Moreover, in fleshing them out, FinCEN was attentive to foreign authorities’ needs. FinCEN defines “law enforcement purpose,” for example, to include civil forfeiture actions.

Between the diversity of foreign laws and the many types of agreements foreign partners have with U.S. counterparts, however, the agency cautions the draft regulations might still interfere with current arrangements. Anticorruption agencies, prosecution services, and other non-U.S. authorities should therefore examine the draft carefully, ideally in consultation with the U.S. agency or agencies with which they work. Comments are due by February 23.

I see one potential issue and have one question about the proposed rules.

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The FTX Collapse and the Risks of Crypto Corruption

Last month, the cryptocurrency industry experienced a seismic shakeup as FTX—a Bahamas-based crypto exchange led by the young ex-billionaire Sam Bankman-Fried—collapsed. It turns out that FTX was riddled with fraud, and many of the company’s assets are still hidden or missing. Quite understandably, most of the reporting on FTX’s wrongdoing has focused on how FTX defrauded investors, customers, and the U.S. government. But there is another aspect of the case that deserves further scrutiny: the possibility that FTX corrupted Bahamanian regulators, and that this corruption facilitated the company’s other types of malfeasance.

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From the World Cup to the Olympics: Why Are International Sporting Events So Corrupt?

The recently-concluded FIFA World Cup in Qatar has served as yet another reminder of the corruption that seems to accompany the awarding of hosting rights for major international sporting events. According to the U.S. Department of Justice (DOJ), in 2010 representatives of Qatar bribed three South American FIFA officials to win the run-off vote against the United States to host the 2022 World Cup. And this came after two members of the FIFA selection committee had already been barred from voting after they had been caught agreeing to sell their votes. This was not an isolated incident. The DOJ also alleged that Russia bribed FIFA officials to host the 2018 World Cup, and indeed more than half of those FIFA officials involved in the 2018 and 2022 host country votes—including FIFA’s then-president Sepp Blatter—have been accused of improper behavior. Nor has this sort of behavior been limited to FIFA. The International Olympic Committee (IOC) has had numerous similar scandals. The IOC has launched an investigation into nine members who were bribed to vote for granting Brazil the hosting rights for the 2016 Olympic Games; Sérgio Cabral, the former governor of Rio de Janeiro, admitted to paying $2 million to the former president of the International Amateur Athletic Federation (IAAF) to buy votes to select Rio as the 2016 Olympic host city, and the head of Brazil’s Olympic committee, Carols Nuzman, was sentenced to over 30 years in prison as a result. And when Russia secured the 2014 Winter Olympics bid, it did so with the assistance of the then-vice president of the Olympic Council of Asia, Gafur Rakhimov, an organized crime leader and heroin kingpin.

Why is the process of selecting host cities and countries for major international sporting events so constantly captured by bribery and corruption? There are several inter-related reasons for this ongoing problem:

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KickBack is Back! And Under New Management.

As many GAB readers know, in addition to this blog, I’ve been co-running the KickBack anticorruption podcast–in collaboration with Nils Kobis and Christopher Starke of the Interdisciplinary Corruption Research Network (ICRN)–since March 2019. We have all very much enjoyed the opportunity to interview leading anticorruption thinkers and practitioners on the podcast, and to use that platform to share our guests’ insights with the larger anticorruption community. That said, the time had come for us to move on to other projects. But we did not want the podcast to die, and I am pleased to say that it won’t! As of last month, the ICRN and GAB have officially handed over the podcast to the team at Sussex University’s Centre for the Study of Corruption (CSC). I have no doubt that the CSC team will do an excellent job, and I look forward to being a regular listener. I’ve been remiss in announcing this changeover, as well as the first several episodes of KickBack that have been released under CSC’s leadership. Three episodes have gone up in the last month and a half:

  • In the November 4, 2023 episode, Professor Elizabeth David-Barrett, the CSC’s Director, interviews Daniel Kaufmann, currently a senior fellow at Results for Development (R4D) and President Emeritus at the Natural Resource Governance Institute (NRGI). He is also a former Director of the World Bank, where (among other things) he helped develop the Worldwide Governance Indicators. The conversation covers many topics, but focuses primarily on the emergence and evolution of the concept of “state capture,” with attention to several case studies in countries such as the Balkans, South Africa, the UK and US.
  • In the November 17, 2023 episode, Professor Dan Hough interviews Maggie Murphy, the CEO of the Lewes Football Club and a former Senior Global Advocacy Manager at Transparency International. After discussing her journey from anticorruption campaigning to football management, Maggie discusses the ethical problems affecting football, how these issues exacerbate inequity between the men’s and women’s games, and what an alternative vision for ethical club management could look like.
  • Finally, in the most recent episode, released on December 6, 2023, Professor David-Barrett interviews yours truly! This functioned partly as an official “passing-of-the-torch” episode (and it’s admittedly a bit self-indulgent), as Liz and I discuss the background for the KickBack podcast, why we started it, and why platforms like this might make a valuable contribution. But we also have the opportunity to talk a bit about my advice for up-and-coming corruption researchers, as well some of the themes in my research over the last couple of years, including my theoretical work on incremental versus “big bang” approaches to anticorruption reform, and my coauthored work on anticorruption in nineteenth and early twentieth century U.S. history.
Again, I’m just delighted that the CSC team will be taking the podcast forward over the next several years. I will continue to announce new episodes on the blog, and I look forward to listening and learning.
You can also find the new episodes and an archive of prior episodes at the following locations:

Risky Wagers: How Lack of Oversight Increases the Odds of Corruption in Sports Gambling

Thanks to the internet, sports gambling—once limited to smoky back rooms and local bookies—has rapidly expanded, and this expansion has fueled growing concerns over the integrity of professional sports. Sports gambling has long been intertwined with sports-related corruption, but the sheer number of gambling transactions made possible by the advent of online betting (through both legal and illegal websites) substantially increases the likelihood that bribery or match-fixing will be used to ensure a “winning bet.”

National regulatory approaches have not kept up with the heighted risks. The United States, for example, continues to rely on outdated regulatory regimes and ill-defined responsibilities shared between state regulators, federal regulators, and professional sports leagues. As more and more states move to legalize sports gambling, the US is in urgent need of a centralized authority that possesses the necessary incentives and requisite capabilities to properly regulate this burgeoning industry.

To see why reform is needed, consider each of the three main actors (or sets of actors) that have some responsibility to deal with the integrity threats posed by online sports gambling in the U.S.: state governments, the federal government, and the professional leagues: Continue reading

The European Court of Justice’s Invalidation of Public Beneficial Ownership Registries: A Translation

One of the most important developments in the fight against corruption—and other forms of organized criminality—over the last couple of decades has been the push for greater transparency in the ownership of companies and other legal entities. An increasing number of countries now require artificial legal entities (“legal persons”) to provide information on their true beneficial owners—that is, the actual human beings (or, in the language of the law, the “natural persons”) who own or control the entity—to the government and to potential investors or potential business partners who need to conduct due diligence on those entities. Many anticorruption activists believe that there should be even greater transparency in corporate ownership, and that the information in these so-called beneficial ownership registries should be made publicly available.

These pro-transparency advocates achieved an important but partial victory back in 2015, when the European Union issued its Fourth Anti-Money Laundering (AML) Directive. The Fourth AML Directive instructed EU Member States not only to collect beneficial ownership information in a central register, but to make that information available to anyone who could demonstrate a “legitimate interest” in accessing the information. In 2018, pro-transparency advocates scored an even bigger victory when the EU issued its Fifth AML Directive. The Fifth AML Directive dropped the requirement that those requesting beneficial ownership data show a “legitimate interest”; the directive instead required Member States to make corporate beneficial ownership information publicly available, unless an individual beneficial owner could show an exceptional interest in keeping his or her ownership interest confidential.

Just last month, though, the push for corporate ownership transparency suffered a setback at the hands of the European Court of Justice (ECJ). The ECJ ruled that the provision of the Fifth AML Directive that required the provision of corporate beneficial ownership information available to any member of the general public was invalid because it violated two provisions of the European Union’s Charter on Fundamental Rights: Article 7, which states that “[e]veryone has the right to respect for his or her private and family life, home and communications,” and Article 8, which provides that “[e]veryone has the right to the protection of personal data concerning him or her,” and that “[s]uch data must be processed … on the basis of the consent of the person concerned or some other legitimate basis laid down by law.”

Many anticorruption organizations condemned the ECJ’s decision, though there appears to be some disagreement about just how consequential the ruling will turn out to be. (The ECJ issued a subsequent clarification—also released on LinkedIn—that journalists and civil society organizations concerned with money laundering, corruption, terrorist financing, and related issues would have a “legitimate interest” in accessing beneficial ownership information, and should therefore continue to have access under the terms of the now-reinstated Fourth AML Directive.) I have my own views on the underlying policy dispute—I’ve come out tentatively in favor of making corporate beneficial ownership registers public (see here and here)—but I thought I should read the ECJ opinion carefully to better understand the rationale behind the decision, and what space (if any) it leaves for moving in the direction of greater corporate ownership transparency.

I may try to weigh in on that latter question in a future post, but in this post, I want to focus on the ECJ decision, and I want to do something a bit unusual. Here’s the thing: The ECJ opinion is terrible. And I don’t mean that it’s terrible with respect to the outcome. Though I disagree with that outcome, reasonable people can debate the merits of public beneficial ownership registries, and how to balance the interest in transparency against the interest in privacy. I mean that the opinion is terrible as a matter of reasoning and craftsmanship. The writing is just godawful—full of unnecessary verbiage, awkward phrasing, circumlocution, and obfuscation. And the terrible writing obscures the shocking thinness of the legal reasoning. If I were grading this as a final exam, it would be a B-minus at best, and that’s only because of grade inflation.

It occurred to me that other people who want to better understand and evaluate this decision might find the opinion even more impenetrable than I did. So I decided to take the liberty of translating the ECJ’s decision from English into English. I didn’t bother with all the prefatory material in the first 33 paragraphs of the decision—my translation exercise focused only on paragraphs 34-88, which contains the court’s legal reasoning (such as it is). I’ve also interjected a few snarky comments throughout in italics. Again, this is my paraphrase of the court’s opinion—if you want to see the original, you can find it here. But in all seriousness, I thought it would be helpful to others to have a more readable version of the court’s opinion, so they can draw their own conclusions. And now, without further adieu, here’s my translation: Continue reading

Anticorruption Parties in Central and Eastern Europe: Why Do They Fail, and How Can They Succeed?

Since the collapse of the Soviet Union, Central and Eastern Europe (CEE) has seen both highly unstable party systems and high rates of corruption. As a result, lots of new parties keep popping up, and an anticorruption focus has proven to be a great way for them to get noticed. In fact, studies have found that new parties are more successful when they center their message on fighting political misconduct.

Among those that actually win, some of these anticorruption parties have been modestly successful in passing reforms. But many other anticorruption parties have floundered when in office. Part of the problem is that these parties often make lofty promises but fail to put forward actual, workable plans. Enough voters will still vote for the “anticorruption” party as a way of expressing disapproval for the incumbent government, without necessarily paying close attention to whether the anticorruption party and its leaders are willing or able to follow through on their promises. As a result, numerous CEE countries have had bad experiences with anticorruption parties that, when in office, appear to have little idea how to govern differently from their predecessors—and sometimes little apparent interest in doing so. Consider a few examples:

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Putting the G in ESG Investment: Incorporating Anticorruption into Investment Decisions

A growing number of investors now consider environmental, social, and governance (ESG) issues when making investment decisions. While ESG investment methods vary, typically ESG investment involves evaluating potential investments not only based on traditional financial indicators, like annual cash flows and debt levels, but also on a number of observable ESG criteria, such board diversity or use of renewable energy. Given the difficulty of establishing investment parameters that incorporate a wide range of sometimes competing objectives, however, ESG investors usually end up prioritizing certain ESG considerations over others. In particular, governance issues—including corruption-related concerns—have often fallen by the wayside (see here, here, here, and here), so much so that a joke in the field has it that the “G” in ESG is silent.

This is unfortunate. Investments tainted with corruption not only indicate a failure in corporate governance—which can reduce the investment’s expected profitability—but also can contribute to a plethora of grave social and environmental ills (see here, here, here, here, and here). Given the fact that an investment’s corruption risk is relevant to a range of social and financial objectives, why hasn’t corruption risk played a more prominent role in ESG investing?

The cynical explanation would be that ESG investing is nothing more than a marketing ploy, and that ESG investors are therefore more likely to tout PR-friendly topics, such as CO2 emissions, and neglect less flashy issues like corporate governance. But that cynical explanation is unpersuasive in light of the fact that ESG investors are spending heavily on efforts to obtain more comprehensive ESG data—behavior that is hard to square with the view that this is all for PR. More plausibly, the insufficient attention to corruption is not from a lack of concern, but rather from a lack in ability to properly assess corruption risk. Reasons for this shortcoming are twofold:

  • First, companies’ reporting on corruption varies significantly in terms of both the quantity and quality of information provided to investors. Without certain standardized disclosures, it is difficult to compare corruption risk across investments. Reliance on voluntary disclosures can allow for the corruption equivalent of greenwashing, where positive information is exaggerated and negative information is buried or completely excluded.
  • Second, even if companies report robust internal control policies, it is difficult for external parties to assess whether these practices are effective or actually utilized. Proper assessment of corruption risk requires internal information that is hard for investors to obtain on their own.

There are several possible things that government regulators, and the ESG investors themselves, might do to address these problems, thereby making it more feasible for ESG investors to take corruption issues more seriously.

With respect to regulation, financial regulators should require certain corruption-related disclosures, so that ESG investors could better engage in relative comparison between investments’ corruption risk. The required disclosures might include:

  • Detailed information on the company’s internal controls and chain of command, including the size and scope of the compliance department, the names the officers and board members responsible for oversight of the compliance program, and whether the company as an “ombudsperson” or independent reporting channel;
  • The number of alleged compliance infringements and the number of resulting disciplinary measures;
  • The company’s assessment (perhaps in the annual report) of the corruption risks it faces, including general risks associated with its line of business and, more specifically, the level of interaction it has with governments and public officials.

The ESG investors themselves can also do more to demand greater corruption-related information from companies and insist that this information be accurate and independently verified. Independent assessments by third-party organizations could ensure that impressive anticorruption reporting and compliance programs are not merely “lip service.” NGOs and consultants already engage in similar analysis of private sector corruption, and would be well-placed to perform such “corruption audits.” For example, Transparency International’s Defense and Security program assesses corruption risk for individual companies in the opaque private military and security industry. With sufficient demand from the growing ESG market—which has already large capital outflows from investments that fail to meet certain socially responsible investment parameters—this type of corruption audit could become an industry norm.

ESG investors have been able to exert meaningful financial pressure on companies, making them increasingly influential over corporate behavior (see here, here, and here). These investors could become a powerful force in combating corruption—if, but only if, they are equipped with the necessary information.