Category Archives: Commentary

Can Slovakia’s New Anticorruption Movement Avoid Common Pitfalls?

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In late February 2018, news that Slovakian anticorruption journalist Jan Kuciak was shot to death at home—the first murder of a journalist in Slovakia’s modern history—shocked the country and world. Slovakians demanded that the government, controlled by the corruption-plagued Direction-Social Democracy (SMER-SD) party, investigate the brazen attack and hold the perpetrators accountable. Tensions escalated in the days following Kuciak’s murder after his last unpublished story surfaced, exposing connections between advisors to SMER-SD Prime Minister Robert Fico and a prominent Italian organized crime syndicate. Fico resigned shortly thereafter, a development which proved to be the beginning of the end of SMER-SD’s twelve-year reign. By the February 2020 general election, voters decisively ousted SMER-SD in favor of the emerging anticorruption-focused Ordinary People and Independent Personalities Party (OLaNO).

Much of OLaNO’s appeal stems from party leader and current prime minister Igor Matovic, a self-made media mogul. His signature communication method was posting videos exposing graft to social media (similar to Russian anticorruption hero Alexei Navalny, whom this blog recently discussed here). In one of Matovic’s most widely viewed videos, he filmed himself in Cannes outside the luxury home of a former SMER-SD politician holding signs saying “Property of the Slovak Republic” and alleging that the home was illegally bought with taxpayer money. Matovic also traveled to Cyprus and posted a video of mailboxes belonging to shell corporations connected to Penta, a multi-million-euro investment group; the video claimed that Penta had used the companies to evade 400 million euros in taxes. Each of Matovic’s videos garnered several hundred thousand views in a country of less than 5.5 million, which helps explain why the February 2020 election boasted Slovakia’s highest voter turnout in 20 years.

Now, just one year into its mandate, OLaNO and its coalition are hard at work rooting out corruption. The government arrested and prosecuted dozens of current and former public officials involved in graft. Those targeted include high-level figures, such as the former Finance Minister, the head of the State Material Reserves Administration, the Director of the Agricultural Paying Agency, and more than a dozen judges, including a member of the Supreme Court and the former Deputy Minister of Justice. OLaNO is also pursuing a number of legislative efforts, including aggressive judicial reform.

Can Matovic and OLaNO finally cleanse Slovakia’s reputation as the corruption “black hole of Europe”? Maybe. But while the story of an outsider stepping forward in the wake of a national scandal and securing electoral victory with an anticorruption political agenda may be a first in Slovakia’s modern history, it is not an unknown tale on the world stage—and (spoiler alert!) the story often doesn’t have a happy ending. To be sure, difficult political dynamics and entrenched domestic corruption can hamper even the most earnest anticorruption efforts. Nevertheless, examples from other countries provide some cautionary tales of how populist leaders elected on anticorruption platforms can sometimes lose their way, and offer some lessons that Matovic, OLaNO, and their supporters should take to heart going forward. Three lessons in particular stand out:

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The Perils of Over-Criminalizing Sports Corruption

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Although the fight against corruption has traditionally focused on corruption in government, the anticorruption community has started to pay more attention to corruption in other spheres. One particularly prominent concern is corruption in sports (see here, here, and here). The topic of sports-related corruption includes not only corruption in the major sports associations (think FIFA and the International Olympic Committee), but also the corrupt manipulation of individual sporting events in order to win bets (whether legal or illegal). Such corrupt manipulation includes match-fixing (where corrupt actors fraudulently influence the outcome of a game); spot-fixing (where wrongdoers seek to influence events within the game that do not necessarily have a significant effect on the final outcome, such as the number of minutes an athlete plays or timing the first throw-in or corner in a soccer game); and point-shaving (where perpetrators seek to hold down the margin of victory in order to avoid covering a published point spread).

Different jurisdictions approach this sort of sports corruption differently. Many countries in Europe have enacted blanket laws criminalizing match-fixing in order to uphold the integrity of sports. The United States, by contrast, takes a narrower approach: The relevant criminal laws targeting sports corruption in the U.S.—both the Federal Sports Bribery Act (the “Act”) and comparable laws at the state level—focus solely on bribery. Furthermore, the Act has historically been used to prosecute individuals involved in paying bribes or inducing others to collect bribes, but not the people (usually athletes, coaches, or officials) who receive the bribes. Although a great deal of corruption in sports involves the payment of bribes, and would therefore be covered by these laws, some types of sports corruption are unilateral: An athlete or sports official may place bets on sporting events and subsequently undertake behavior to win those bets. For this reason, some scholars have argued that the U.S. should close this loophole by criminalizing such unilateral conduct as well.

I disagree. To be sure, unilateral sports corruption is unethical, and criminalizing it would help to prevent athletes, referees, and coaches from engaging in corrupt acts that jeopardize the integrity of sports. But the benefits of criminalizing this form of misconduct are minimal and are greatly outweighed by the corresponding costs.

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Sunshine or Sunset? The Latest Threat to Freedom of Information in Mexico

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In a country beset by extreme and seemingly intractable corruption, Mexico’s National Institute for Access to Information (INAI)—which runs Mexico’s freedom of information system—has stood out as an unusually effective mechanism for promoting transparency, accountability, and integrity. The INAI’s effectiveness stems from its binding legal authority and independence, as provided by constitutional provisions passed in 2013. The Institute can and has compelled other government agencies to improve their information disclosure policies, and, perhaps most significantly, the INAI can override other government agencies’ denial of information access requests. The INAI has substantial leverage to ensure greater government compliance by way of meaningful fines and effective injunctions for noncompliance. The INAI also moves lightning fast; the INAI regularly satisfies its statutory obligations to respond to requests within twenty business days and to deliver documents within thirty. The INAI does not charge search fees, and all uncovered information is available to the wider public. Citizens can challenge decisions to withhold information, and they routinely prevail.

The INAI’s broad freedom of information mandate makes the agency a powerful actor in exposing corruption (see, for example, here, here, and here). Perhaps most notably, the Institute enabled discovery of former President Pena Nieto’s secret mansion (“the White House Scandal”), the diversion of over $400 million allotted to public services, and embezzlement in public-private ventures in Mexico’s vast energy sector. More broadly, despite all the well-known deficiencies of Mexico’s anticorruption institutions, the INAI has been globally lauded for its role in government transparency.

Given this, why is Mexico’s President Andrés Manuel López Obrador (commonly referred to by his initials “AMLO”), who ran and won on an anticorruption platform, so keen on eradicating the agency? In a press conference earlier this year, AMLO proposed decommissioning all of Mexico’s independent agencies, singling out the INAI as an especially egregious example of bloated bureaucracy. His rationale boils down to three main arguments: (1) the INAI hasn’t ended corruption, (2) the INAI costs too much, and (3) the INAI’s functions can be provided by the Secretariat of Public Functions (SFP), a non-independent body that performs federal government audits and reports directly to the president. These arguments are unconvincing, to say the least.

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The Many Uses of Xi Jinping’s Anticorruption Campaign

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Since Chinese President Xi Jinping launched his anticorruption campaign in 2012, much of the foreign commentary has debated the extent to which the campaign is a genuine effort to root out corruption or a means for purging or undermining President Xi’s political opponents. This simple framing, however, obscures the other uses and objectives of the anticorruption campaign. Better understanding these motivations is important to understanding the dynamics of the campaign and the role that anticorruption plays in modern Chinese politics. Three political and policy objectives are particularly notable:

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Peace and Profiteers: Corruption in the Libyan Process

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This past February, delegates from the UN-led Libyan Political Dialogue Forum (LPDF) seemed to do what a slate of other diplomatic tracks had yet to achieve: give Libyans hope for peace. On February 5, under the auspices of the UN Mission to Libya (UNSMIL), the 74 Libyan delegates making up the LPDF elected businessman Abdulhamid Debeibah to lead a transitional Parliament as its Prime Minister, vesting him with the responsibility of ferrying Libya to free and fair elections this coming December. With all the main warring parties appearing to come to the table in good faith, it seemed UNSMIL had engineered a transformational breakthrough in a conflict that has torn Libya apart at the seams for the past decade. As the process unfolded, the international community watched with baited breath. A joint statement by the United States, United Kingdom, France, Germany, and Italy blessed the process, giving the LPDF its “full support.” The UN Security Council called the election an “important milestone.” The stage was set, at long last, for a successful consolidation of power into one transitional government.

The only problem? The vote electing Debeibah was rigged.

On March 2, a leaked UN report written by the Panel of Experts, an investigatory UN body, revealed that Debeibah had bribed several LPDF delegates to elect him Prime Minister. According to the report, two participants “offered bribes of between $150,000 to $200,000 to at least three LPDF participants if they committed to vote for Debeibah.” One delegate reportedly exploded in anger in the lobby of the Four Seasons hotel hosting the LPDF when he heard that some delegates received $500,000 for their bribes. Apparently, he only received $200,000.

Just hours after the news dropped, UNSMIL issued a strong response. It threw its full support behind Debeibah, distanced itself from the UN Panel of Experts, and urged the newly elected Parliament to confirm Debeibah’s election at its first scheduled session on March 8. And while outside observers can only speculate as to UNSMIL’s motives, this see-no-evil response to the Panel’s bombshell revelations may well reflect a frantic attempt to salvage a peace process the entire international community has rallied behind. Indeed, proponents of UNSMIL’s position have argued that the long-term stability of moving ahead with Debeibah at the helm and keeping December’s election schedule on track is worth any short-term scandal, as further disruption of the process could lead to its unraveling. This position—which has been endorsed by experts and fellows from the Brookings Institution, the European Council on Foreign Relations, and others—may seem like hard-headed realism. But in fact, UNSMIL’s refusal to hold Debeibah and his co-conspirators accountable through an open and transparent process is a mistake. UNSMIL has chosen, as one Libyan lawyer and LPDF delegate put it, to “priorit[ize] expediency above all else and at the expense of due process,” and by doing so, UNSMIL risks undermining both the LPDF’s legitimacy and Libya’s long-term peace prospects.

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Actions for Damages Caused by Corruption: American Law

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American law allows corruption victims to recover damages under a variety of legal theories, and its class action procedures are well suited for recovery in certain cases.  This post discusses who the law deems a victim and what damages they are entitled to recover.  A second post will suggest where countries developing their own corruption victim law might follow American practice, and where American practice should be avoided at all costs.

In the United States, the party that most often recovers damages for corruption is a company whose employee accepted a bribe. The bribe will have been paid in return for awarding the bribe-payer a contract or for approving poor performance or overpayment on a contract the payer already holds with the employer. Most cases have arisen from one firm bribing an employee of another, but the same law applies when the victim is a government agency whose employee was bribed. U.S. agencies (here), cities (here and here) and counties (here), local police forces (here) and the United Nations (here) have all collected damages in these circumstances. So have foreign governments when the bribe was paid in violation of the Foreign Corrupt Practices Act (chapter 10 here). 

The basis of the employer’s damages is in taking a bribe the employee breached the duty of loyalty owed the employer. The duty of loyalty is also grounds for recovery in conflict of interest cases.  The most well-known public conflict of interest case is from the early 20th century. In United States v. Carter, Army Captain Oberlin Carter had awarded dredging contracts to a company in which he had a secret interest. The court ruled that not only was the Army entitled to Carter’s share of the company’s profits but to any money he had earned from investing those profits.

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A Mandatory Reporting Requirement in Israel: Maybe Not a Lost Hope?

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In my last post, I discussed and critiqued a proposal, advanced in a policy paper published by the Israel Democracy Institute (IDI), for a mandatory reporting requirement in Israel’s public sector. Under the IDI paper’s proposal, a public official who, acting in his or her official capacity, formed a “substantial suspicion” that corruption has taken place or will take place could face disciplinary sanctions for failing to report this suspected corruption “as soon as possible.” I criticized this proposal on the grounds that it would both discourage reporting in those cases where a potential whistleblower is reluctant to report right away and so delays for a period of time, and would also deter employees from cooperating with investigators by sharing relevant information that they had not previously disclosed. In both of these cases—the employee who didn’t report right away but might be willing to report later, and the employee who didn’t voluntarily report but might be willing to share information when questioned by investigators—the threat of disciplinary sanctions for failure to report immediately may actually induce employees to keep silent, especially since the chances they will be caught and punished if they never reveal what they suspected are generally quite low. Instead of imposing a mandatory reporting requirement, I argued, Israel (and similarly situated countries) should strengthen positive incentives for whistleblowers, offering them more generous rewards and more effective protections against retaliation.

While many readers broadly agreed with my critique of the IDI paper’s mandatory reporting proposal in its current form, several colleagues suggested that a modified version of the mandatory reporting requirement might be effective and appropriate. In this post, I consider what seem to me the most plausible and promising revisions to the original IDI proposal, and evaluate whether these modifications would overcome my principal critiques: Continue reading →

Why Do So Few Corruption Victims Seek Compensation?

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The United Nations Convention Against Corruption requires state parties to open their courts to those damaged by corruption.  Under article 35, states that have ratified UNCAC must provide victims of corruption a right to “initiate legal proceedings against those responsible for that damage … to obtain compensation.” According to the United Nations Office on Drugs and Crime, virtually all 187 states parties do. Its 2017 review of the convention’s implementation found article 35 was “one of the least problematic provisions of the entire convention.” “All but seven of the reviewed states,” it reported, “have adopted measures to fully or partly implement article 35.”

The UNODC’s conclusion comes from a reading of the parties’ laws.  While only a handful of states have enacted special legislation governing recovery of damages for corruption, in the remainder national authorities assured UNODC that corruption victims could recover damages “under the general principles of civil (contract or tort) law.”  But research by UNODC, the UNCAC Civil Society Coalition, Transparency International, and surveys of practitioners belies these assurances. It finds that in most nations few if any corruption victims have sought damages for injuries suffered.

For a UNODC/Stolen Asset Recovery Initiative project, I seek answers to two questions.  One, is the research correct? Are there really only a few cases where corruption victims have been awarded damages?  My preliminary analyses of U.S. data shows only some 30 arising from public, as opposed to private, corruption; given its size, the amount of corruption, and low barriers to suit, one would expect more. What about other states, especially larger, wealthier ones?

Two, if indeed there are few corruption damage actions in any jurisdiction, what explains the paucity? Why, despite the prevalence of corruption, the damage it has wreaked, and the worldwide attention it has drawn, have so few corruption victims sought redress. I hypothesize three factors are to blame: courts’ narrow reading of legal doctrine, especially that governing causation for harm (here); shortcomings in procedure, and in some countries the threat violent retaliation.

But these are my guesses, based largely on my experience as a lawyer in a wealthy common law jurisdiction and second hand reports from those in other nations. Readers’ thoughts and comments solicited. Cases and commentary in any language Google translate reads most welcome.

Why Mandatory Corruption Reporting Requirements May Prove Counterproductive

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Whistleblowers who report on and expose illegal acts in their workplaces are invaluable to fighting corruption. In Israel, as I stressed in a previous post, the recognition of the importance of whistleblowers has led to the adoption of several (unsatisfactory) legal instruments which are designed to encourage whistleblowers to step forward. These instruments are mainly about rewarding or protecting those employees who have dared to report on illegalities despite the personal and professional risks associated with their coming forward. An important example of such a positive instrument is Israel’s Protection of Workers (Exposure of Offenses and of Harm to Integrity or to Proper Administration) Law,  which establishes a whistleblower-friendly mechanism for seeking damages from employers who engage in unlawful retaliation .

But some argue that positive incentives are insufficient. In 2019, the Israel Democracy Institute (IDI), one of the country’s leading research institutes, published a policy paper in which the authors (Professor Mordechai Kremnitzer and Yazid Ershied) argued that negative incentives—that is, the threat of sanctions for those who fail to report corruption in their workplaces—should also be employed. More specifically, the authors propose that Israel’s disciplinary law include a provision that requires any public employee who, in his or her official capacity, has formed a “substantial suspicion” that an act of corruption has taken place to report on it “as soon as possible” to a newly established governmental unit which would address corruption in the public sector. The authors claim that adoption of such a mandatory reporting requirement, if backed by the credible threat of sanctions, would increase the number of reports by public officials who observe corruption. (The sanctions recommended by the authors would be disciplinary rather than criminal, as criminal sanctions in their view would be disproportionate and consequently ineffective.)

The IDI paper is the most thorough and impressive piece written on proposals to adopt a mandatory reporting requirement on corruption in Israel. But while the authors list some good reasons for adopting such a requirement, they fail to consider how their proposal would interact with the phenomenon of “delayed reporting.” Employees are often reluctant to report suspected corruption right away, but eventually become willing to report it. In other words, for entirely understandable reasons, it often takes whistleblowers some time and contemplation before they are finally ready to report on illegalities. When one takes this fact into account, it becomes apparent that the IDI paper’s proposed mandatory reporting requirement might prove counterproductive, for two reasons: Continue reading →

Principles for Victim Remediation in Foreign Bribery Cases

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There is a broad consensus that foreign bribery harms the citizens and governments of developing nations. But in most cases where enforcement agencies in a “supply side” jurisdiction (that is, the home jurisdiction of the companies that paid the bribes) reach a settlement with a company accused of bribing foreign officials, the settlement does not provide for any remedial payments to the government or citizens of the “demand side” country where the bribery took place. Given the inherent difficulties in setting right the harm corruption causes, this is hardly surprising. Nevertheless, scholars and activists have increasingly called for settlement agreements between supply side enforcers and bribe-paying companies to include requirements that the companies make such remediation to the victims of the foreign bribery scheme, and some prosecutorial agencies, like the U.S. Department of Justice (DOJ) and the U.K. Serious Fraud Office (SFO), have occasionally done something along these lines. They have done so, however, only intermittently, and as an exercise of prosecutorial discretion, without any overarching policy agenda or conceptual framework.

In a recent article, I proposed a framework that could achieve more consistent outcomes and be used as a benchmark for developing best practices. I do not focus on grand designs for a private right of action for the foreign victims of corruption, or on obligations under international law. Because the action is happening on the ground, through the exercise of prosecutorial discretion in negotiating settlements, that’s where I focus. In this post, I outline the factors that enforcement agencies should take into account when deciding whether to pursue remediation in any given case. Continue reading →