Author Archives: Richard Messick

Legal Strategies for Anticorruption Litigation by Civil Society

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GAB is pleased to welcome this guest post by Ken Hurwitz, Senior Legal Officer, Anticorruption, the Open Society Justice Initiative, announcing the publication of a series of papers on civil society and anticorruption litigation sponsored by the Initiative:

Those of us working with civil society groups that seek to combat transnational grand corruption have what might be called a love-hate relationship with the law. Yes, sometimes we can push magistrates and prosecutors to hold perpetrators to account, provided the right conditions are met. But at the same time we too often see existing law and law enforcement mechanisms protecting those responsible for high-level corruption:  bribing business actors, self-dealing kleptocrats, and the financial, legal and business intermediaries who often profit from and facilitate the crime.

This post introduces a series of papers the Open Society Justice Initiative  commissioned to explore how civil society can see that the law holds the corrupt to account rather than protects them from any sanction. Continue reading →

“First thing we do, let’s kill 85 percent of the lawyers.”

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Readers of this blog know its commitment to publishing the most reliable, up-to-the-minute data on corruption, and it is in this spirit I urge a revision to the famous line Shakespeare has Dick the Butcher speak in Henry VI, part 2: “First thing we do, let’s kill all the lawyers.”  New research shows not all lawyers are, as Shakespeare and his audience supposed, venal, greedy, and unethical.  When lawyers in 13 New York law firms were approached to help an African official squirrel away funds that screamed “we are the proceeds of corruption,” two passed up the chance to earn the fat fee dangled before them, one on the spot and one after thinking things through.  Advanced econometric analysis thus reveals that only 85 percent (11/13) of those queried were willing to consider assisting an obviously corrupt African politician.  So if the same percentage of Elizabethan-era lawyers were as upright as today’s New York attorneys, Dick would not have needed to off all lawyers to reach the utopia envisioned in Act IV, Scene II. Just 85 percent.    Continue reading →

Private Law Suits for Corruption:  Am I Missing Something?

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As explained in earlier posts (here and here), I am working with the Open Society Justice Initiative on a project to examine how civil society can prompt more corruption-related litigation  — either by stimulating criminal prosecutions or filing civil suits itself.

One area that remains a puzzle is why businesses are not filing more civil suits for damages caused by bribery.  At common law, if a merchant could show it lost a customer to a bribe-payer, it could sue the briber for tortuous interference with contractual relations and the bribe-taking employee for breach of fiduciary duty.  A merchant that discovered it had paid higher prices or bought goods of a lesser quality because the seller had bribed one of its employees likewise had an action for damages, against the employee for breach of fiduciary duty and for fraud against the bribe-payer.  The Civil Law Consequences of Corruption, a 2009 volume edited by Professor Olaf Myer, describes similar doctrines that corruption victims in countries governed by the civil law can invoke to recover damages.  Moreover, regardless of legal heritage, parties to the United Nations Convention Against Corruption are required by article 35 —

“to ensure that entities or persons who have suffered damage as a result of an act of corruption have the right to initiate legal proceedings against those responsible for that damage in order to obtain compensation.”

Am I missing something?  Or is there only one country where businesses that are victims of corruption are heeding the invitation to sue for damages?  And if so, why is this case?  Why aren’t businesses in other nations besides this one seeking compensation for the losses bribe-paying has caused them? Continue reading →

Will Honduras’ MACCIH Become Another CICIG?

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After a several month negotiation with the Organization of American States, the ruling party, the opposition, and civil society, the Government of Honduras agreed to form a new anticorruption body that offers the Central American nation the hope that the endemic corruption blamed for making it one of the poorest, most unequal, and most violent societies in the Western Hemisphere can be brought to heel.  On January 19, Honduran President Juan Orlando Hernández signed an international accord with the OAS establishing the Mission to Support the Fight against Corruption and Impunity in Honduras (known as MACCIH, its initials in Spanish).  MACCIH was inspired by the success of a similar body in neighboring Guatemala, the International Commission Against Impunity (known too by its Spanish initials, CICIG), which, as readers of this blog (here, here, and here) or of a June 2015 Washington Office on Latin America report know, has made significant inroads in taming corruption in that country.

Like CICIG, MACCIH is a hybrid international-domestic agency.  Its staff will be international civil servants paid for, and accountable to, the OAS and immune from Honduran law, yet MACCIH’s staff is tasked with the same mission as Honduran law enforcement agencies, to ferret out corruption in the Honduran body politic.  As with CICIG, in creating MACCIH the hope is to establish an independent, incorruptible body of investigators, prosecutors, and judges able to pursue cases where, thanks to corruption, incompetence, or intimidation, their Honduran counterparts have not.  But important differences between the powers granted MACCIH and those CICIG enjoys make observers wonder whether, as Washington College Professor Christine Wade recently wrote,  MACCIH isn’t a “ruse designed to appease domestic and international critics” of the government.

For MACCIH to be something more than a way to buy time until the furor over the recent corruption scandals that spawned it fades from view, it must overcome three challenges. Continue reading →

WAGing at Corruption:  A Modest Proposal

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Matthew sparked a lively discussion last week on the use “of widely-repeated . . . statistics” that are in fact “unreliable guesstimates misrepresented as precise calculations—and at worst, completely bogus” in discussions about corruption.  He cited the claims that “$1 trillion in bribes are paid annually” and that “corruption costs the global economy $2.6 trillion per year” as examples.  The former, a wild guesstimate, and the latter not even that are routinely accepted as fact in media accounts and policy notes issued by development agencies and appear even in papers purporting to be serious academic works. I do not link to examples for two reasons.  One, there are so many that I would have to choose which ones to cite, and I don’t want to be accused to playing favorites.  Second, the links would embarrass the guilty by calling them out.  But many readers will know of whom I speak, and those who don’t can easily compile a list of offenders thanks to the magic of internet search engines.

I think Matthew did those concerned about combating corruption a great service by prompting debate about the use of such numbers, and I applaud him and those who replied for moving the discussion forward.  At the same time, I fear Matthew may have inadvertently pushed the discussion off-track with his observation in the opening paragraph that “in the grand scheme of things, made-up statistics and false precision are not that big a deal.”  I say this because, in responding to Matthew’s post, readers focused on a single issue: how much help it can be in discussions about controlling corruption to throw around phony numbers.

If the only question were whether what can fairly be termed a “wild ass guess” about the extent of corruption or some type of corruption or the losses it causes or what-have-you is if it helps advances policies that will help stamp corruption out, then Matthew is right; “made-up statistics and false precision” aren’t a big deal.  But suppose WAGs, by which I include both unsupported guesstimates and bogus numbers, are harmful too?  That not only are they sometimes useful by drawing attention to the issue or prompting action, but that sometimes they retard the cause of combating corruption.  Then what?

Below are two ways corruption WAGs can be harmful and a modest proposal for lessening that harm without calling a complete halt to their use. Continue reading →

Norway Divests Shares in Telecom Giant ZTE Over Gross Corruption: Will Others Follow?

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On January 7 the manager of Norway’s sovereign wealth fund announced the fund would sell its $15 million holdings in Chinese telecom giant ZTE and make no future investment in the company because of the risk the company would become involved in corruption scandals.  The decision to divest for reasons of corruption is a significant advance in the battle to curb global corruption.  For while the investment community can be a powerful voice for change in corporate behavior, to now its efforts has been confined almost exclusively to entreaties to corporate management to make corruption prevention a priority (see pp. 1127-1130 of this article for a summary of recent efforts).  Divestment puts teeth in these entreaties, particularly when wielded by an investor of the size and influence of the Norwegian fund.

The Government Pension Fund Global, the fund’s formal name, was established in 1990 to invest the nation’s petroleum wealth for the benefit of future generations.  Its current holdings of roughly $825 billion make it not only the world’s largest sovereign wealth fund but one of the largest pools of investment capital in existence.  For comparison, Pimco Total Return, which Forbes ranks as the world’s largest mutual fund, has assets of $263 billion while UK Business Insider reports that Millenium Partners $181 billion in assets make it the globe’s biggest hedge fund.

It is not only the fund’s size that makes it influential, but the careful process it follows to ensure its investments reflect the values of beneficiaries, the citizens of Norway.  The fund’s investment guidelines provide that it may exclude any company where “there is an unacceptable risk that the company contributes to or is responsible for” activities that result in the violation of human rights, lead to severe environmental damage, or further “gross corruption.”  To decide whether disinvestment is appropriate, the fund’s five member Council on Ethics reviews a company’s conduct and issues a recommendation to fund managers. In the case of ZTE, the Council’s June 2015 divestment recommendation was based on an extraordinarily damning report it prepared recounting ZTE’s conduct over the past decade, a report that leaves no doubt the company was responsible for an enormous amount of “gross corruption.”

The only question the report left open is why other investors aren’t fleeing the company’s stock as well.  If not for social reasons — because the company’s repeated, flagrant violations of the corruption laws of so many countries has done so much harm to so many — for economic reasons.   A business model seemingly bottomed on the wholesale corruption of public officials is sure to crash soon in this heightened era of anticorruption enforcement.

Just look at what the Council’s report says about ZTE activities — Continue reading →

“Charitable Giving” — A Way Around the FCPA? Part II

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In a December post I asked readers how they would rule in an FCPA-related case recently before U.S. federal trial judge Melinda Harmon.  As judge Harmon was required to do when deciding the case, readers were asked to assume the following was true:  The chief executive of Hyperdynamics Corporation, a Houston-based oil exploration company, had established “American Friends of Guinea,” an NGO, in 2006 after the Guinean government had threatened to revoke the company’s oil concession, its sole asset; and shortly after “Friends” was created, the government approved a renegotiated concession.  In 2007, when the government again threatened its concession, “Friends” made a substantial contribution of medicines to care for Guineans stricken with cholera, and in 2009, after the government again reaffirmed the concession, Hyperdynamics donated company stock to “Friends.”  Finally, in 2011 the firm itself gave government ministries some $30,000 worth of computer equipment.

Well, readers, what do you think?  Do the above allegations, if true, state a plausible violation of the FCPA?  That is, could a reasonable jury, or judge sitting as a finder of facts, infer from them that one or more of the donations was actually a bribe Hyperdynamics paid to Guinean government officials in return for allowing it keep its oil concession? Continue reading →

Furthering Cross-Border Cooperation to Fight Corruption

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Some of the best news on the corruption front is the growing cross-border cooperation among domestic law enforcement agencies.  The French firm Alstom’s December 18 agreement to pay R$ 60 million, US$ 16 million, to Brazil to settle bribery claims nicely illustrates the pay off from such cooperation.  Thanks to information supplied by French and Swiss authorities, Brazilian prosecutors showed that Alstom had bribed officials of Sao Paulo’s state government to win a contract to supply electrical equipment to the state’s power company.  A critical element in the case was evidence that the officials had deposited large sums in Swiss banks around the time the contract was awarded.

Although Brazil, France, and Switzerland are all bound by domestic legislation and treaties to help one another investigate and prosecute corruption cases, law alone is not enough to produce the kind of cooperation that resulted in the Alstom settlement.  As Silvio Marques, one of the Alstom prosecutors, explained the other day in a note to colleagues, the key element is – Continue reading →

“Charitable Giving” — A Way Around the FCPA? Part I

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The facts below were alleged in a recent case involving Hyperdynamics Corporation, an American firm whose sole asset is an oil concession in Guinea:

* In 2005 the Secretary General of Guinea told the company that “further review” of its concession was necessary.  On August 1, 2006, the company’s CEO founded the NGO American Friends of Guinea and on September 22, 2006, the government approved a renegotiated concession.

* In September 2007, following critical reports in the local news about the renegotiated concession and government threats to cancel it, the Secretary General visited Hyperdynamics’ Houston office.  Over the next year American Friends of Guinea “delivered and paid for antibiotics and glucose fluids for men, women, and children who were stricken with cholera and . . . planned new water well projects to get to the source of solving the problem.”

* On September 11, 2009, the Guinean government and the company signed a memorandum affirming with modifications its oil concession.  On September 29 Hyperdynamics donated stock in the company to American Friends of Guinea.

* In September 2011 after a new, transition government was installed, a further dispute about the concession arose.  That year the firm donated $20,000 worth of computer equipment to the Ministry of Mines and some $8,000 -$10,000 to the Guinean Offshore Department of Environment.

Assuming these allegations are true, do they amount to a “payment . . .  to [a] foreign official for purposes of influencing any act or decision of such foreign official in his official capacity” and thus constitute a violation of the U.S. Foreign Corrupt Practices Act? Continue reading →

Should Anticorruption Agencies Have the Power to Prosecute?

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One of the main reasons policymakers cite for establishing a standalone, independent anticorruption agency is the need to strengthen the enforcement of their nation’s laws against bribery, conflict of interest, and other corruption crimes.  In the past 25 year some 150 countries have created a specialized, independent agency to fight corruption (De Jaegere 2011), and virtually all have been given the lead responsibility for investigating criminal violations of the anticorruption laws.  But while a broad international consensus exists on the value of creating a new agency with investigative powers, opinion remains sharply divided on whether these agencies should also have the power to prosecute the crimes it uncovers.  As this is written, Indonesian lawmakers are considering legislation to strip its Corruption Eradication Commission (KPK) of the power to prosecute while a bill before the Kenyan parliament would grant its Ethics and Anticorruption Commission (EACC) the power to prosecute the cases it investigates.

No matter the country, debate about whether a single agency should have the power to both investigate and prosecute corruption cases inevitably comes down to a small set of conflicting claims.  Those who oppose giving a single agency both powers raise an argument at the center of the older debate about the relative responsibilities of police and prosecutors — investigator bias.  In the words of a British Royal Commission that studied the relationship between English police and prosecutors, an investigator “without any improper motive . . . may be inclined to shut his mind to other evidence telling against the guilt of the suspect or to overestimate the strength of the evidence he has assembled.” That is, once an investigator hones in on a suspect, confirmation bias sets in, and he or she will interpret all evidence as supporting the suspect’s guilt.  Putting the decision about whether to prosecute a case in an agency wholly separate from the one that investigates provides a strong check against such bias, reducing the chances that the innocent will be put to a trial or weak cases brought to court.

The investigator bias argument has a long and distinguished pedigree, and a 2011 survey of the powers of 50 anticorruption agencies by World Bank economist Francesca Recanatini found that it often carries the day.  Only half of the 50 agencies she surveyed have both investigative and prosecutions powers.  But as the contemporary debates in Indonesia and Kenya suggest, proponents of combing investigation and prosecution in a single agency have a very powerful counter argument in their corner.  Continue reading →