Fighting Healthcare Corruption with Smiles and Stickers

Compared to other EU countries, petty bribery in Lithuanian healthcare is quite common (see here and here). Though extortion seems rare, Lithuanians frequently make informal (and illegal) payments to doctors either to get better/faster treatment or as an expression of gratitude. When describing this practice, Lithuanians use the language of “giving a gift” or “giving a little envelope,” euphemisms that imply that these payments have come to be perceived as acceptable expressions of gratitude rather than bribes, despite the fact that the Criminal Code prohibits bribery and the Civil Code prohibits giving doctors any sort of gifts outside their private lives. Though formally bribery, giving money to a doctor in Lithuania seems to have developed a different social meaning—rather than implying that you are a dishonest or corrupt person, giving extra money to your doctor has come to be understood as something that reasonable people do in recognition that doctors work hard, are underpaid, and deserve gratitude. Offering gifts or money to a doctor has also become a way to express how much you care about the health of your loved ones who are unwell. So, in Lithuania, the practice of making illegal payments to doctors seems to have become a “social norm” – a shared understanding that such behavior is permitted or even obligatory. It has become a norm both in the descriptive sense (people make these payments because they think that everyone else does so) and in the injunctive sense (making an extra payment to your doctor is an appropriate expression of gratitude). That doesn’t mean it’s good, or something we should ignore or tolerate. But it’s something we need to take into account when thinking about how to combat this form of corruption.

Once we recognize that petty bribery has become a social norm, we should ask what tools could be used to disrupt that norm. Because the problem is so extensive and multifaceted, many of the solutions will require significant institutional reforms, changes in management style, budget reallocations, and the like. Without minimizing the importance of those more fundamental changes, it’s also possible that seemingly small, inexpensive, and non-coercive interventions might help disrupt this dysfunctional social norm. Back in 2011, when I was working for Transparency International Lithuania (TI Lithuania), we piloted one such initiative in collaboration with the Lithuanian Medical Students Association. Our objective was to disrupt social norms surrounding informal healthcare payments—not through loud or aggressive actions, but with stickers and smiles. Continue reading

The Case for Governments Maintaining PEP Registries

Financial institutions are obliged to apply enhanced client due diligence to politically exposed persons (PEPs) in order to comply with anti-money laundering (AML) and other regulations. Yet there are no official, government-sponsored or government-endorsed sources for identifying PEPs. As a result, financial institutions typically rely on private firms to identify PEPs across the globe. But this reliance is problematic. With barely any independent oversight into how these firms compile their lists, there is no way to ensure the lists are accurate, and there’s at least some evidence that they aren’t: Many of the vendors on which financial institutions rely were found to have “incomplete and unreliable PEP lists” in the past and these commercial databases also produce thousands of false positives due to people with identical names. Given these problems, very few AML officers rely solely on those external databases; they are forced to supplement the private vendor lists with ad hoc internet searches on Google, Linkedin, and other sources, often relying on Google-translations of foreign media articles. This does not seem very reliable. Some civil society groups have sought to contribute to the identification of PEPs by creating online registries, drawing on publicly accessible data on the international level and the national level. But none of these attempts has been comprehensive enough for AML purposes, and civil society organizations probably would not have the resources to compile PEP lists that would be suitable for financial institutions to use for screening clients on a sustainable, ongoing basis.

It is time to change how we approach the task of identifying PEPs for AML and related purposes. A couple of years ago, Professor Stephenson asked on this blog whether there should be a public registry of PEPs, sponsored and maintained by national governments or by an inter-governmental body such as the Financial Action Task Force (FATF). Such an idea is not entirely revolutionary. The UN Convention against Corruption (UNCAC) hints at something along these lines in Article 52(b)(2), which instructs each state party “in accordance with its domestic law … [and] where appropriate, [to] notify financial institutions within its jurisdiction … of the identity of particular natural or legal persons to whose accounts such institutions will be expected to apply enhanced scrutiny,” though the “where appropriate” and “in accordance with domestic law” qualifiers mean that there’s no concrete obligation here. Some countries, such as Australia, have undertaken to circulate lists of PEPs to financial institutions. And the European Union, in its Fifth AML Directive, required Member States to compile a list of government positions that are considered “politically exposed,” though the Directive does not require governments to name the actual persons holding those positions at any given time.

Yet these measures all fall well short of the possibility that Professor Stephenson raised in his post: official PEP lists compiled and maintained by governments. Professor Stephenson framed his post as merely posing the question whether this would be a good idea. I want to argue for what I believe is the correct answer to that question: Not only should governments maintain PEP registries, but the international community, through bodies such as the FATF and the UNCAC Conference of States Parties, ought to require governments to create and maintain such registries, using an internationally-standardized set of functional criteria to identify which public positions should be considered to be politically exposed.  Continue reading

Managing Anticorruption Compliance Under the EU’s General Data Protection Regulation

Lawyers and businesses today are concerned with data privacy issues like never before—not only because of the mounting number of data privacy scandals, but also because of new regulations, most importantly the EU’s General Data Protection Regulation (GDPR). The GDPR, which was adopted in 2016 and became applicable in May 2018, reformed the entire personal data protection system in the EU by setting new rules of data protection and privacy. Moreover, the GDPR applies not only to entities that operate within the EU, but also to all entities established in the EU when operating outside the EU, as well as to entities established outside the EU when they are offering their goods and services inside the EU or monitoring individuals from the EU. The GDPR thus has global reach, as well as stringent penalties for violations.

The GDPR has implications for many different fields, and anticorruption is no exception. This is especially true for corporations conducting internal investigations of possible bribery by firm employees or agents, and when conducting due diligence on potential partners. Much of the data collected in these corporate investigations will include “personal data” as defined and regulated by the GDPR. For this reason, some commentators have warned that the effect of the GDPR on traditional corporate anticorruption investigations will amount to “a collision of galactic proportions.”

That may by hyperbole, but it is certainly the case that the GDPR will impose important new obligations that influence how companies handle anti-bribery compliance issues, both in the context of internal investigations and in the context of due diligence. Continue reading

Lithuania’s Judicial Scandal Shows Why Public Communication Matters Corruption Investigations

This past February 20th, the people of Lithuania awoke to the shocking announcement that the country’s anticorruption body, the Special Investigation Service (STT), and the Prosecutor General’s Office had opened an investigation into alleged bribery, trading in influence, and abuse of power in the Lithuanian judiciary. The scope of the investigation is breathtaking. So far 26 people have been arrested, including a Supreme Court Judge, eight other judges, an assistant to a Supreme Court Judge, and multiple lawyers. The scale of the allegations dominated media coverage in Lithuania and was picked up by news outlets around the world (see, for example, here, here and here). But this was not the only reason that news of this investigation may have come as a shock to many Lithuanians. Before this story broke, it looked like the ongoing efforts to increase Lithuanian citizens’ trust in their courts had finally started to bear fruit. In 2017, for the first time since polling on the issue began in 1996, more Lithuanians trusted than distrusted their judiciary. This increase in trust was due to several factors. It likely helped that the President, Dalia Grybauskaite, made judicial transparency, openness, and efficiency top priorities during her tenure. The judiciary has also worked to reform itself and together these reforms brought a lot of changes, for example by reforming the judicial selection process, introducing rotation of court leadership, increasing openness, introducing an automated system for assigning cases to judges, and a number of other procedural changes. The Council of Judges—a judicial self-governance body—has also promulgated a Courts Anticorruption Program, pursuant to which individual courts (including the Supreme Court) adopt their own concrete anticorruption plans. On top of this, the National Courts Administration (NCA) (the external administrative institution that serves the judiciary and judicial self-government bodies) has worked on increasing communication about the work of the courts by trying to reach out to the explain how the judiciary works, and also encouraging judges to issue explanations about their decisions.

What many now fear, with good reason, is that that the new corruption case will cause the public confidence in the judiciary to collapse. This worry is exacerbated by political dynamics: with elections coming up, many politicians jumped on the bandwagon of attacking corruption in the courts and declaring the need for more reforms—though often without offering any specifics, and sometimes seemingly having no clear understanding of how exactly the judiciary works.

The unfolding drama over judicial corruption in Lithuania highlights the importance of communication between government institutions and the general public—both by the institution under investigation (in this case the judiciary), and by the institutions doing the investigating (in this case the STT and the Prosecutor General). It may seem odd to focus on public relations strategy when the underlying substantive allegations are so serious. But while no one could sensibly claim that better communication is a replacement for, or more important than, substantive action, it would be a serious mistake to underestimate the importance of public communication in a case like this.

Consider each of the dimensions of public communication noted previously—by the courts and by the investigators: Continue reading

The EU Needs a Centralized AML Authority

The European Union had a tough year. As if the refugee crisis, the rise of nationalist and far-right parties, and the Brexit affair weren’t enough, the 2018 headlines of European newspapers were crowded with a seemingly endless parade of money laundering scandals. Perhaps the most egregious was the case of Danske Bank, the largest bank in Denmark and a major retail bank in northern Europe. According to Danske Bank’s own report, between 2007 and 2015 the bank’s Estonian branch processed more than US$230 billion in suspicious transactions. The investigation, which is still ongoing, has already been dubbed the largest money laundering scandal in history. And there are plenty of others. In September 2018, for example, the Dutch bank ING Groep NV admitted that criminals used its accounts to launder money and agreed to pay a record US$900 million in penalties. And then in October 2018, after a string of scandals, Malta became the first EU Member State to receive an official European Commission (EC) order to strengthen enforcement of its anti-money laundering (AML) rules. By the end of 2018, it became apparent that the EU’s entire AML system needed a major overhaul.

The EU’s current AML legal framework is comprised of several components:

  • The first element is the set of so-called AML Directives, the most recent of which (the sixth) was adopted in 2018. These Directives require Member States to achieve certain legal results, but do not specify the particular measures that Member States must adopt.
  • Second, following the AML Directives, all EU Member States have adopted national AML laws and regulations that provide detailed guidance on a variety of topics, including the specification of different entities’ AML responsibilities, the sanctions for AML system breaches, and so forth.
  • The third important component of the EU’s AML framework is the EU Regulation on information accompanying transfers of funds, which is meant to harmonize across Member States the provision of payers’ and payees’ information when persons are transferring and receiving funds. In contrast to the AML Directives, this EU regulation, like other such regulations, has a direct legal effect on all Member States. Therefore, the information accompanying transfers of funds is identical in all Member States.

Taken together, these various instruments comprise one of the most stringent AML systems in the world, at least on paper. Perhaps for that reason, many commentators, including EU and EC officials themselves, attribute the spate of money laundering scandals plaguing EU countries not so much to weaknesses in the substantive regulations but rather to poor implementation—in particular, the fragmentation of AML oversight. Last October, Bruegel, an influential European think tank, presented a report calling for the establishment of a new centralized European AML authority—one that would work closely with national law enforcement agencies and be empowered to impose fines. ECB Chief Supervisor Danièle Nouy, who is intimately familiar with the problem, seems to agree at least to some extent. After one of last year’s many money laundering scandals, she suggested that “we need a European institution that is implementing in a thorough, deep, consistent fashion this legislation in the Euro area.” In fact, the proposal to create a more centralized EU AML architecture has been around for a while. It seems that the EU has finally decided that the time has come to do something like this, as the European Central Bank (ECB) announced last November that it would set up a central AML supervision office.

To understand the justification for creating a new centralized EU AML agency, one must first understand the extent to which, under the current system, supervisory and enforcement responsibility for the EU’s AML system is divided among several institutions, and the problems that this can create: Continue reading

Where Is the Behavioral Insights Revolution in Anticorruption?

Behavioral economics—the application of insights from behavioral psychology to economic analysis and regulatory policy-making—is all the rage. In addition to the contributions of this synthesis to academic economics, research in behavioral economics has suggested the possibility of innovative, simple, low-cost policy interventions that can shift behavior in dramatic and productive ways, without as much reliance on the heavy hand of regulators. These so-called “nudges” (named after Richard Thaler’s and Cass Sunstein’s book Nudge) include, for example, things like automatic enrollment in retirement plans, which appears to increase the amount of people saving for their retirement more than tax incentives do. The possibility of using nudges or other approaches inspired by behavioral economics has captured the imagination of politicians, international organizations, and others, and there are now approximately 200 so-called “nudge units” in governments around the world looking for ways to employ behavioral insights to solve public policy problems

This enthusiasm has spread to the field of anticorruption. (See here, here, and on this blog here and here). But, while there have been a handful of anecdotal reports of successful nudge-like interventions in this area (e.g. here), there has not yet been much elaboration of what sorts of concrete anticorruption innovations follow from a behavioral perspective, nor of the evidence base supporting these sorts of interventions. Indeed, there seems to be surprisingly little data about successful applications of behavioral insights in the fields of integrity and anticorruption. That’s why I was so excited when last year the Organization for Economic Co-Operation and Development (OECD) published Behavioural Insights for Public Integrity: Harnessing the Human Factor to Counter Corruption, a report that, according to the OECD, is the “first comprehensive review of different strands of behavioral sciences to identify practical lessons for integrity policies.”

Alas, rather than providing systematic evidence on how applying behavioral insights can make anticorruption efforts more effective and using that evidence to recommend new integrity tools, the OECD report largely rehashes the last couple of decades of behavioral economics more generally, and makes it seem—at least to me—that, at least so far, behavioral science does not really suggest anything revolutionary for integrity and anticorruption, and there is little or no data-backed guidance on how to apply nudging to solve problems of integrity. Continue reading