Author Archives: Lauren Ross

Too Much of a Good Thing? Moderation and Anticorruption Strategies in Greece

Posted on by
Reply

This past month’s headlines have been dominated by the Greek debt crisis and how it has been handled (or mishandled) by the EU and IMF. The Syriza party, which rose to prominence due in large part to its opposition to the austerity measures imposed upon Greece by its creditors, first rejected a deal offered by its European creditors to procure additional funds and then, following the resignation of its finance minister and a hotly contested vote in Parliament, accepted the imposition of additional restrictions, including “consumer tax increases and pensions cuts” in anticipation of another round of negotiations to receive a bailout “worth about 85 billion euros.” It is impossible to predict what the final terms of any deal reached during the course of these negotiations may be; once the dust has finally settled and Greece has either acquiesced to the demands of its European creditors in order to secure needed funds or undertaken the “Grexit” from the Euro that many commentators fear, its government will be forced to once more take stock of its economic position and determine the best path forward to meet both the obligations imposed upon it by its creditors and its people’s desire for a brighter economic future.

Given this ongoing macroeconomic and political crisis, measures to address corruption in Greece–both domestically and abroad–may seem like a secondary concern at best. Yet there are those (especially those sympathetic to Greece’s international creditors) who believe that Greece’s troubles are due at least in part to its failure to adequately address corruption, and that Greece could bolster its faltering economy if it reined in the rampant corruption that has perennially placed Greece amongst the most corrupt nations in the European Union. And while Syriza and its creditors may agree on very little, Syriza in fact also made anticorruption a major part of its campaign platform, though its attempts to implement more robust anticorruption measures are at best in their nascent stages and have been overshadowed by the recent contentious negotiations over a new bailout.

So while this may seem premature, perhaps we should consider how the Greek government ought to approach its anticorruption struggle in the coming years. And here, strategic prioritization is likely to be essential: If we presume (reasonably) that Greece is unlikely to be able to commit considerably greater resources to its anticorruption efforts in the near term, the Greek government will have to make some difficult choices regarding how best to allocate its finite resources when deciding if and how to target different forms of corruption.

One such choice will be how much to prioritize the fight against foreign bribery (that is, bribes paid by Greek citizens and firms in other countries). Last March, the OECD released a report chiding Greece for not having “given the same priority to fighting foreign bribery as it has to domestic corruption,” a decision that, according to the OECD, “sends an unfortunate message that foreign bribery is an acceptable means to…improve Greece’s economy during an economic crisis.” This may well be true. Yet to the extent that Greece is able to renew its focus upon combating corruption in the aftermath of its current bailout negotiations, Greece would be better off if it (temporarily) ignores the OECD’s advice and instead focuses primarily on domestic rather than foreign corruption. There are several reasons for this:

Continue reading →

Not My Neighbor’s Keeper: Military Corruption and International Peacekeeping

Posted on by
2

There are few more troubling examples of how corruption can both create and sustain violent conflict than the current crisis in Nigeria. As Liz emphasized in a recent post, many observers believe that rampant corruption may have contributed to the rise of Boko Haram, and may also be one of the primary reasons for the Nigerian military’s difficulty in combating the threat posed by this group. While Liz focused on the reasons why it might be particularly difficult to combat corruption in the Nigerian military, I would like to take up a different issue: the ways in which military corruption is currently perceived and addressed by members of the international community.

The dichotomy between the treatment of certain instances of military corruption, and the international community’s perception of the problems posed by this phenomenon, is perhaps best illustrated by the coverage that two different examples of military corruption have received in recent months. First, as mentioned above, coverage of the role that military corruption has played in Nigeria’s ability to ward off Boko Haram and its potential impact upon the surrounding region has been widespread.  Second, the Chinese government has released the names of 14 generals in the People’s Liberation Army suspected of corruption – a move that has been seen as part of a broader anticorruption effort by the new regime and that has been justified, at least in part, by the fact that these officials’ corruption has potentially undermined the “military readiness” of Chinese forces. This development has been largely viewed as a purely domestic concern for China and received relatively little news coverage.  Yet, while the treatment of these two events by the international community may differ dramatically, the root of both of these problems – military corruption – is the same.

It is not particularly surprising that the problems posed by military corruption in China and Nigeria have been treated differently by outside commentators. After all, the threat posed by Boko Haram is a serious one, with potentially significant import for international security. However the fact that there can be such a swift change between a situation in which rampant military corruption can be categorized best as simply a “local concern” – an absence of military readiness amongst a state’s armed forces or too many supplies gone missing – and instances, such as those in Nigeria, in which military corruption in one state can implicate the security of an entire region suggests, perhaps, that there may be some merit in reframing how we think about the phenomenon of military corruption.

Continue reading →

Sports Anticorruption Initiatives: Hail Mary or a Home Run?

Posted on by
6

Corruption in sports—whether it be match-fixing, the systematic use of performance enhancing drugs, or bribes paid to secure lucrative hosting duties—is by no means a new phenomenon. However, as Transparency International recently noted, this type of corruption has, since at least 2010, been gaining increasing prominence both among anticorruption advocates and the broader international community. Perhaps the most striking example of this trend is the considerable coverage that the various scandals emanating from FIFA’s selection of the World Cup’s host countries has engendered over the past few years (including Melanie’s posts on this blog here and here). Yet the issue is much broader. Last year, for example, a “landmark study” revealed that criminal gangs launder more than £80 billion in the UK from illegal sports betting, and commentators have decried the “dramatic growth in reports of corruption” in sport more broadly.

In response to these increasing concerns regarding corruption in sport, a number of different initiatives have sprung up: The International Olympic Committee has created a “hotline for whistleblowers to report match-fixing and other corruption,” China recently announced that it would be cracking down on the “sport for millionaires” – golf – as part of its broader anticorruption efforts, and last month Transparency International unveiled its Corruption in Sport Initiative, which is focused on “[k]eeping sports clean.”

While it is too early to evaluate the efficacy of some of these programs, it nonetheless may well be worth taking a step back to consider the broader question of whether or not corruption in sports should be a priority for the anticorruption community. Continue reading →

Greece’s Golden Opportunity: Economic Crisis and Corruption

Posted on by
3

Greece’s struggles with corruption are longstanding. Greece has perennially been viewed as one of, if not the, most corrupt countries in the European Union (EU). (In 2014, for example, Greece was tied, along with Italy and Romania, for last among EU countries in Transparency International’s Corruption Perception Index). Recently, however, coverage of Greece’s ongoing battle with corruption has increased dramatically due to two interrelated factors: (1) the election of the Syriza party, which has never before held political power and ran in part on an anticorruption platform; and (2) ongoing negotiations with other members of the EU to receive additional, vitally important bailout funds as Greece continues to struggle to rebound from an economic crisis that first began in 2010 (in which some have suggested that Greece’s receipt of any additional loans should be conditioned on its ability to make “credible progress in boosting [its] tax take and fighting corruption”).

Transparency International and others are (admittedly somewhat reservedly) hopeful that the election of the Syriza party will signal a renewed focus on combating corruption by the Greek government, calling its campaign platform “music to our ears as long as [its] commitments remain strong and unwavering” and noting that the “new government seems more committed to addressing corruption than past ones.” And there have been some promising early indications of the new government’s willingness to combat corruption.  For example, its new anticorruption chief recently announced he will be investigating 80,000 of the wealthiest individuals in Greece who are believed to have funds in foreign bank accounts for tax evasion. Nonetheless, there have been some rumblings of discontent from both anticorruption activists and the broader international community. Other members of the EU have accused the government of “wasting important time” in instituting anticorruption measures and commentators have noted that too little has been done to make good on campaign promises of “tackl[ing] the corrupt oligarchical business elites that dominate the economy.”

It is likely premature to judge the Syriza govenrment’s commitment or ability to combat corruption.  Yet as Greece continues to grapple with an economic crisis that has left the country reeling – and dependent upon significant loans from the International Monetary Fund and the EU – it seems an appropriate time to draw attention to the fact that this crisis has presented both the Syriza government and broader anticorruption community with a rare opportunity to make significant strides in addressing corruption in Greece, an opportunity that prior administrations have failed to appropriately capitalize on.

Continue reading →

Whistling in Chorus: The Potential Impact of the Rise of Parallel Prosecutions on Whistleblower Regimes

Posted on by
6

A few months ago, Chinese officials announced a number of new incentives for whistleblowers to come forward to disclose corporate wrongdoing: pledging to develop protection plans for whistleblowers when necessary to “prevent and end acts of retaliation” and increasing the rewards whistleblowers could potentially receive to approximately $33,000 for “actionable information” (with even greater sums available for “significant contributions of information”).  While these policies are fascinating in their own right, they also feed into a larger discussion that has been taking place both on this blog and in other forums, regarding what impact, if any, an increased commitment to anticorruption norms by demand-side countries may have upon the current anticorruption regime. A number of authors have already discussed this phenomenon both in broad strokes and specifically within the context of China’s increased enforcement of anticorruption laws (though some have suggested China’s recent, high-profile corruption prosecutions, including a $490 million fine of GlaxoSmithKline, may serve as a cover for protectionist policies).  One area that may warrant further consideration, however, is the likely impact that the rise of demand-side prosecutions and the resulting potential for parallel enforcement by demand-side and supply-side countries may have upon these states’ whistleblowing regimes.

While the ways in which the increased prevalence of demand-side corruption prosecutions will impact the interactions between supply- and demand-side countries’ anticorruption regimes remains unclear, this phenomenon seems likely to result in one of two possible outcomes with respect to states’ attitudes towards whistleblowers. First, countries may perceive some benefit to ensuring that they are the only–or, at the very least, the first–government to receive a whistleblower’s report.  Second, states may alter their whistleblowing policies to reflect the fact that whistleblowers can potentially report to, and be rewarded by, both demand- and supply-side countries.  While the impact of these different scenarios on the ways in which whistleblowing protections and incentives will develop over time may be quite different, both appear disadvantageous to states’ anticorruption efforts, to the whistleblowers themselves, or both.

Continue reading →

A Problematic Proposed Whistleblowing Law in Switzerland

Posted on by
4

Switzerland is currently not a particularly hospitable country for whistleblowers.  The anti-retaliation protections provided to potential whistleblowers are relatively sparse – individuals fired from their jobs can, at best, hope to receive up to the equivalent of six months of their salary rather than reinstatement – and there are few legislative incentives in place to encourage individuals to report corruption or other forms of corporate wrongdoing.  Moreover, not only are the country’s laws rather harsh when it comes to encouraging and protecting whistleblowers in the private sector, commentators have noted the “brutally hard line” that the Swiss government has taken in a number of high-profile whistleblower prosecutions.

Unfortunately, a proposed law which has passed the country’s Council of States and will be considered by its National Council, initially billed as an attempt to address ambiguities within the current whistleblower system, appears likely, if enacted, to make an already hostile climate for whistleblowers even worse.

Continue reading →

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

Posted on by
2

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 →

Sunlight and Secrecy: Whistleblowing, Corruption, and the NSA

Posted on by
1

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 →