Author Archives: Richard Messick

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 →

At Last, A Good News Corruption Story

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It seems that not a day goes by without some gloomy story about corruption appearing in the popular media or online. “Corruption on the rise in Africa poll as governments seen failing to stop it” says a new TI study.  “In Mexico, 200 million acts of corruption a year” the Mexican Competitiveness Institute reports.  Monday’s Washington Post editorial proclaims that “Mali’s corruption hindered its efforts to fight terror,” and the subtitle of a best-selling book warns that it is not only Malians who are at risk but that corruption “Threatens Global Security as Well.”

With all this bad news it was a surprise to discover a recent good news story about corruption.  The news is doubly surprising as it comes out of three unexpected places: Ghana Kenya, and Uganda.  Even better, rather than broad generalizations drawn from a handful of selected anecdotes, the good news in Professors Rebecca Dizon-Ross, Pascaline Dupas, and Jonathan Robinson’s July 2015 “Governance and the Effectiveness of Public Health Subsidies” paper rests on a careful, clever empirical study that employs rigorous scientific methods.  The only bad news about the paper is that it is on a remote internet site beyond the ken of most web browsers.  For readers whose browsers don’t travel to the National Bureau of Economic Research’s web site, a potted summary follows. Continue reading →

The Challenge of Police Reform in Developing Nations

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A new volume from CRC press, Police Corruption and Police Reforms in Developing Societies, provides an informative if frustrating look at efforts to combat corruption in the police services of developing countries.  Informative for two reasons: one, because editor Kempe Ronald Hope marshals such powerful evidence in his introduction for the primacy of tackling corruption in the police.  Two, because the authors he has assembled offer such authoritative, in-depth studies of how police corruption has been attacked in eight developing states spread across Africa, the Asia-Pacific region, and Latin America and the Caribbean plus Hong Kong.  Policymakers in developing states no longer have any excuse for not prioritizing police anticorruption reforms.  Nor can they plead ignorance of the ingredients required.

But a list of ingredients does not itself make a stew.  That takes a recipe for how to combine the ingredients: in what proportions and when.  And that is one reason why the volume is so frustrating. It lacks a recipe for police reform. Continue reading →

An Inside Perspective on the Replacement of the Head of Nigeria’s Economic and Financial Crimes Commission

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As many readers will know, on Monday, November 9, Ibrahim Lamorde stepped down as head of the Economic and Financial Crimes Commission, the country’s principal anti-corruption agency.  Although initial reports say Nigerian President Muhammadu Buhari fired him, Presidential spokesperson Femi Adesina denies this was the case. Adesina explained that the President had decided not to re-appoint Lamorde, a career member of the Nigerian police force, to a second term when his current one expires this February and that his leaving the EFCC now is in accordance with procedures governing the rotation of career government employees.

Controversy over the tenure of the EFCC is nothing new.  The “reassignment” of its first chief, Nuhu Ribadu, for the flimsiest of reasons was a response by Nigeria’s corrupt class to a far too aggressive investigator.  Rumors why Lamorde is leaving point in the opposite direction, the claim being he was let go because he had been going too easy on the gaggle of corrupt businesses and politicians stealing so much of the national patrimony.

GAB asked a close observer of Nigerian politics for his take.  He writes: Continue reading →

The Case of the Disappearing Transparency Report

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Last week a colleague sent a link to a report assessing Norway’s compliance with its promises to the Open Government Partnership to increase government transparency.  Surprisingly, given the Norwegian government is considered one of the more open and transparent on the planet, the authors gave the government low marks. What’s even more surprising is their candor in assessing the transparency movement in Norway. They suggest that transparency has become an end in itself.

My fear is that this is a trend not confined to Norway.  Rather than pursuing transparency as a means to a more accountable, less corrupt government, the Norwegian case illustrates what has become all too common among transparency advocates: they have come to believe that transparency is an end in itself — to be pursued no matter the consequences.

Shortly after the report appeared on the website of the NGO Engine Room, its institutional author, it disappeared — which may mean I am not the only one who found the report quite damning.  In any event, while I didn’t download the entire report before it was taken down, I did copy an excerpt from the abstract showing my fear is not fanciful: Continue reading →

Building Corruption Concerns into Land Registration Systems: A Lesson from Cambodia

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The low cost exchange of property is critical for economic growth, assuring that resources flow to those who can put them to their highest use.  But where property rights are insecure, where buyers can’t be sure that they will get an uncontested claim to what they purchase, that easy exchange will not occur.  Hence over the past two decades the World Bank, regional development banks, and many bilateral aid agencies have invested significant resources in helping developing nations strengthen the laws and institutions that secure property rights.  The largest investments have been in titling and registering land.  Land is the principle asset of most citizens in both developed and developing states, and although residents of wealthy countries take it for granted when buying a home that the property registry is accurate and the seller’s documents valid, this is a luxury most citizens in the developing world are denied.

But while building a land titling and registration system in a developing country is an important step in boosting growth and improving citizen well-being, it is time-consuming, costly and can go wrong in many ways.  In a 2014 article in the Asian Journal of Law and Society (earlier version here), New York University’s Leah Trzcinski and Frank Upham show how the failure to consider the vulnerability of the system to corruption derailed a Cambodian project and how greater attention to local context, in particular the high degree of corruption present in many Cambodian institutions, could have made for a far more successful project.   Continue reading →