About Matthew Stephenson

Professor of Law, Harvard Law School

Anticorruption Bibliography–July 2017 Update

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.

Guest Post: Encouraging Signs for a Possible U.S. Legislative Crackdown on Anonymous Companies

Gary Kalman, the Executive Director of the FACT Coalition, contributes today’s guest post:

A little over a year ago, the International Consortium of Investigative Journalists (ICIJ) released the Panama Papers, a treasure trove of information and a window into the world of financial secrecy. In some ways, much of what the Panama Papers revealed was already well known. Previous estimates put the amount of money hidden in offshore secrecy havens somewhere between $8 trillion and $32 trillion. In 2015, The New York Times published an impressive five-part series on the use of anonymous shell companies to purchase prime real estate in New York City. Prior to that, the U.S. Justice Department filed a lawsuit (which they just won on June 29th) to force the forfeiture of New York property secretly owned by the government of Iran in direct violation of economic sanctions. And so on. Yet it is hard to deny the captivating intrigue of the specific stories in the Panama Papers involving Russian kleptocrats, world leaders, athletes, movie stars, and others.

The big question is: more than a year later, did anything change? As I recently observed, there are indeed encouraging signs around the world, particularly in Great Britain, several EU member-states, and some developing countries such as Ghana. What about the United States? After all, with U.S. transparency laws ranging from weak to non-existent, there is little need to go to Panama to launder one’s dirty money. While Delaware gets the most notoriety, no state collects information on the true (“beneficial” owners of corporations. In fact, in its recent assessment of the U.S., the Financial Action Task Force, an international anti-money laundering body, noted that for all the progress the U.S. has made, the lack of beneficial ownership transparency remains a glaring weakness. And in the past, when some U.S. legislators – most notably former U.S. Senator Carl Levin (D-MI) – pushed legislation to require states to collect beneficial ownership information, the proposed bills never received so much as a hearing.

That may be about to change, and anticorruption advocates should take note. Continue reading

Argentina’s Draft Bill on Corporate Criminal Liability for Bribery: Some Striking Innovations on Sanctions

A few weeks ago, I had the good fortune to be able to attend an event at the University of Buenos Aires (co-sponsored by the New York University Law School), that focused, among other things, on a new draft bill, currently under consideration in the Argentinian legislature, that would impose criminal liability on corporations and other legal persons for corruption-related offenses. I’m largely unfamiliar with Argentina’s legal system, so I was very much an outside observer for this discussion, but there were a couple of things about the draft bill that struck me as interesting and worthy of attention from the wider anticorruption community. (Apologies for not providing a link: I’m working off a hardcopy of an unofficial English translation of the draft bill, which I can’t find on the web.)

A lot of the provisions in the bill are fairly standard, though in many respects the bill is quite aggressive. For example, Article 3 makes parent companies jointly and severally liable for sanctions imposed on their subsidiaries (without any requirement to show that the subsidiary was an agent of the parent), while Article 4 imposes successor (criminal) liability in all cases of merger, acquisition, or other corporate transformation. In both these respects, the draft Argentinian bill imposes more sweeping corporate criminal liability than does U.S. law. Also, like U.S. law, the Argentinian bill (in Article 2) would make corporations criminally liable for the actions of its officers, employees, and agents.

But what most caught my attention were the draft bill’s provisions on sanctions: Continue reading

Guest Post: Using Open Data To Combat Corruption—Moving Beyond the Hype

Robert Palmer, the Director of Partnerships and Communication at the Open Data Charter, contributes today’s guest post:

In order to tackle corruption effectively, one first needs to understand the networks that link government officials, businesses, and professional intermediaries, and then work to either dismantle these networks or at least ensure that these webs of connections are not exploited to enrich individuals and undermine good government. Fortunately, these clandestine networks often leave traces in government-held databases, such as company registers, land title deeds, asset disclosures, and other official records. That’s where open data can be helpful. When the government provides easily accessible public information, it makes it easier for government officials, journalists, and citizens to follow financial flows, understand who’s providing government services, and to spot suspect behavior. And that’s why there has been so much enthusiasm about the open data in the anticorruption community. In 2015, for example, the G20 anticorruption working group announced a common approach saying that “Open Data can help prevent, detect, investigate and reduce corruption.”

Yet what’s happening on the ground isn’t living up to this hype. Part of the reason is that, as the Web Foundation and Transparency International found in a recent study of five G20 countries, many countries have made only limited progress toward meeting international commitments on open data. But even where open data is available, relatively few organizations are actually using open data to expose and combat corruption. There are, of course, exceptions, including Global Witness, the data journalists at Organised Crime and Corruption Reporting project, and accountability groups such as BudgIT. Yet the potential for open data to help fight corruption remains largely unrealized.

To help address this shortcoming, the Open Data Charter has spent the last year pulling together a guide for how to use open data to combat corruption. The guide lists 30 types of datasets that could help expose and combat corruption if they are released in the right way, as well as key data standards to ensure consistency and quality between different countries. Of course, the underlying assumptions here are that the types of data listed in the guide can be collected and released by governments in the ways the guide advises, and that there are anticorruption actors who can process this data in ways that are helpful in exposing or preventing corruption. In order to probe these assumptions, the Open Data Charter has teamed up with the Government of Mexico to “road-test” the guide. This will include working out which of the 30 datasets in our guide the government already publishes, which further ones can be released, and how to engage potential users. We’re interested in understanding how if data is released in the right way, users such as journalists, law enforcement, and civil society can process the data and then use it to have an impact on corruption.

Our approach to this piece of work is guided by a real desire to learn what works: what’s helpful to the government and what’s helpful to external stakeholders who want to tackle corruption. We hope to be able to report on our initial findings over August. If you’re interested in learning more, please get in touch with me: robert [at] opendatacharter.org. In the spirit of transparency and collaboration, the guide itself is open to comment here.

Tracking Corruption and Conflicts of Interest in the Trump Administration–July 2017 Update

This past May, we launched our project to track credible allegations that President Trump, as well as his family members and close associates, are seeking to use the presidency to advance their personal financial interests.Just as President Trump’s son Eric will be providing President Trump with “quarterly” updates on the Trump Organization’s business affairs, we will do our best to provide readers with regular updates on credible allegations of presidential profiteering. Our July update is now available here. The most notable new highlight in the new material concerns two developments related to housing subsidies: First, while President Trump’s proposed budget proposed slashing funding for most housing assistance programs, it conspicuously exempts a program that provides payments directly to private landlords–a program from which Trump directly profits due to his ownership stake in a New York housing development that receives subsidies under the program. Second, President Trump appointed an event planner with close ties to his family (but no prior experience in housing policy) to a senior government position responsible for disbursing federal housing funds in New York and New Jersey, where the Trump Organization has substantial real estate holdings.

(Note: While we try to sift through the media reports to include only those allegations that appear credible, we acknowledge that many of the allegations discussed are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.)

Guest Post: Paris Court Rules That a US FCPA Guilty Plea Precludes Subsequent Prosecution in France

GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

Overseas bribery and similar crimes can often be investigated by prosecutors in more than one country. But does (or should) the resolution of a criminal investigation in one country—say, through a negotiated resolution—bar subsequent prosecutions in other countries for the same underlying conduct? In earlier posts, I have explored some recent rulings that address aspects of this debate over so-called “international double jeopardy” (see here, here and here). A recent decision of the Paris Court of Appeals added an interesting new element to this debate. Faced with a classic situation of parallel prosecutions, the Paris Court held that an individual who had pleaded guilty in the United States for violations of the U.S. Foreign Corrupt Practices Act (FCPA) could not be prosecuted under French anti-bribery law—not because of the standard international double jeopardy principle, but rather because, according to the Paris Court, the US proceedings deprived the defendant of the right to defend himself protected by the European Convention on Human Rights (ECHR).

The facts of the case are simple: an individual entered into a written plea agreement with the U.S. Department of Justice (DOJ), in which the defendant agreed to plead guilty in a US court to FCPA charges, on which he was subsequently sentenced. He was separately bound over for trial in France under French anti-bribery laws, apparently for the same underlying conduct.  In affirming the dismissal of the French prosecution, the Paris Appellate Court’s reasoning proceeded in two steps: Continue reading

Guest Post: Timor-Leste Needs a New National Anticorruption Strategy

Jonas Guterres, who previously served as an Advisor to the Anti-Corruption Commission of Timor-Leste, contributes today’s guest post:

Corruption in Timor-Leste is a chronic disease that can infiltrate almost all aspects of human life and all sectors of society. A number of mechanisms have been put in place within the nation’s legal framework since its restoration of independence, culminating in the establishment of the Anti-Corruption Commission (the Comissão Anti-Corrupção, or CAC) in 2010. However, the prevalence of corruption remains high. There are a number of factors which explain why the anticorruption efforts to date remain far from ideal. Continue reading