Category Archives: Commentary

Coordination of Corporate Resolution Penalties Is Unlikely to Address the “Piling On” Problem in FCPA Prosecutions

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Multinational companies that pay bribes may find themselves subject to prosecution by multiple jurisdictions. Some countries, including many in Europe, apply a double jeopardy bar (known there as ne bis in idem) that prevents one country from prosecuting an entity that has already been prosecuted elsewhere. Other countries, however—including the United States—have no such bar. US prosecutors may pursue those suspected of violating the Foreign Corrupt Practices Act (FCPA) even if the targets already have been, or are being, prosecuted in another country for the same bribe payments. Is this a problem? Some say no: the possibility of multiple prosecutions by different sovereigns might create a healthy “race to the top” and stronger deterrence. On the other hand, however, we might worry that multiple prosecutions risk over-punishing, thereby over-deterring risky but socially valuable conduct (like expanding into high-risk foreign markets). Companies also will not be sure when a matter is finally settled. In addition, there seems something arrogant about the US giving itself the power to evaluate whether a criminal prosecution in another country was adequate.

The US Department of Justice (DOJ), long a defender of its right to judge for itself whether to bring a parallel or follow-on prosecution in FCPA cases, recently signaled greater sympathy with those who take the latter side in this debate. Earlier this year, the DOJ unveiled a new policy meant to eliminate “unfair duplicative penalties” on corporate wrongdoers, including those participating in foreign bribery, and set out a number of factors that the DOJ can use to evaluate whether imposing multiple penalties serves “the interests of justice.” Describing the impetus for the policy update, Deputy Attorney General Rod Rosenstein echoed common complaints from the corporate community about how the “piling on” of multiple penalties for the same misconduct, from different regulatory and enforcement agencies, deprives the company and its stakeholders of the “the benefits of certainty and finality ordinarily available through a full and final settlement.”

It’s not clear, though, whether—at least with respect to FCPA cases—the new policy differs much from the approach that the DOJ’s FCPA Unit has been taking to joint and parallel investigations for many years. While formalizing the approach may seem to provide some relief to corporations, the new policy actually does little to address the “piling on” problem in the foreign bribery context: Continue reading →

Was U.S. v. Hoskins Correctly Decided? (Probably Not.)

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My post last week discussed the recent U.S. Court of Appeals decision in United States v. Hoskins, which held that a foreign national cannot be charged with aiding and abetting a violation of the Foreign Corrupt Practices Act (FCPA), or with conspiracy to violate the FCPA, unless that foreign national either took some action connected to the violation within US territory, or else acted as an agent of a US domestic concern or an issuer of securities in the US. That’s a bit of a mouthful. To put this another way: The FCPA itself says that it applies extraterritorially to US nationals (including US firms), to non-US firms that issue securities on US markets, and to the officers, employees, directors, and to agents of firms in either of the preceding categories. The FCPA also applies to foreign individuals or firms (other than issuers) if but only if they engage in some part of the wrongful conduct while in US territory. The question is whether such foreign individuals (including non-issuer firms), who act outside of US territory, and so cannot be charged directly with violating the FCPA’s anti-bribery provisions, can nevertheless be charged with aiding and abetting, and/or conspiring with, some other actor’s FCPA violation. In Hoskins, the U.S. Court of Appeals for the Second Circuit said no: Not only can a foreign national (other than an issuer or an agent of a US domestic concern or issuer) not be charged with FCPA violations based on conduct abroad, but such a defendant’s conduct abroad also cannot support a charge of aiding, abetting, or conspiring in an FCPA violation.

Perhaps because appellate court decisions on legal issues related to the FCPA are so rare, Hoskins has attracted considerable commentary. Most of this discussion, including my post last week, focuses on summarizing the court’s holding, considering its implications for future cases, and assessing whether Hoskins’ limitation of complicity and conspiracy liability is likely to improve or worsen FCPA enforcement overall. However, I haven’t seen very much commentary on the question whether, as a matter of legal doctrine and legal interpretation, Hoskins was decided correctly—that is, whether it is consistent with precedent, statutory text, and generally-accepted jurisprudential principals. That’s entirely understandable—most of the initial wave of commentary is coming either from law firms that want to explain to their clients what this decision means for them, or from those interested more in the policy issues than in parsing the doctrine. Nevertheless, I do think it’s worth getting a conversation going about whether Hoskins’ reasoning is (legally and doctrinally) sound. I may not be the best person to do this, as I’m not a criminal law specialist, but I figured I might as well take a crack at it, if only in the hopes that doing so might prompt some of the real experts to weigh in.

After reading the case a few times, and delving into some of the earlier case law and other materials, it seems to me that Hoskins is a hard case. Really really hard. And I tentatively think that is was probably decided incorrectly. Or maybe “incorrectly” is too strong—instead, perhaps I should say that the Hoskins result is in tension with existing doctrine, and the result the court reaches, though defensible, requires an aggressive expansion of traditional doctrinal principles, one that the court doesn’t really acknowledge. For those readers out there who care more about the policy bottom-line than about the intricacies of legal doctrine, you may want to stop here. Law nerds, read on! Continue reading →

The New Frontier: Using Artificial Intelligence To Help Fight Corruption

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In January 2018, scientists from Valladolid, Spain brought a piece of inspiring news to anticorruption advocates: they created an artificial intelligence (AI) system that can predict in which Spanish provinces are at higher risk for corruption, and also identifies the variables that are associated with greater corruption (including the real estate tax, inflated housing prices, the opening of bank branches, and the establishment of new companies, among others). This is hardly the first example of computer technology being used in the fight against corruption. Governments, international organizations, and civil society organizations have already been mining “big data” (see, for example, here and here) and using mobile apps to encourage reporting (see, for example, here and here). What makes the recent Spanish innovation notable is its use of AI.

AI is a cluster of technologies that are distinct in their ability to “learn,” rather than relying solely on the instructions specified in advance by human programmers. AI systems come in several types, including “machine learning” (in which a computer analyzes large quantities of data to identify patterns, which in turn enables the machine to perform tasks and make predictions when confronted with new information) and more advanced “deep learning” systems that can find patterns in unstructured data – in hundreds of thousands of dimensions – and can obtain something resembling human cognitive capabilities, though capable of making predictions beyond normal human capacity.

AI is a potentially transformative technology in many fields, including anticorruption. Consider three examples of the anticorruption potential of AI systems:

Continue reading →

Integrity Pacts: A Contractual Approach to Facilitate Civic Monitoring of Public Procurement

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Public procurement is one of the highest risk areas for corruption. A public project contaminated with corruption is a recipe for disaster: ordinary citizens suffer from substandard facilities and services; competitive companies lose out when the bidding is rigged; and government money vanishes without making a difference. To rein in procurement corruption in, improving transparency and civic monitoring is vital. That’s why an “integrity pact” (IP)—a legally-binding contractual provision that commits all parties to comply with anticorruption best practices from the time the tender is designed to the completion of the project—can be such a useful tool.

An IP is more than a demonstration of commitment to avoid corruption practices on the part of its signatories. An IP contains obligations for bidders and government authorities, among other things, to refrain from offering or accepting bribes and to disclose all contract expenses and commissions; the IP also sets out sanctions for non-compliance, such as termination of the contract, liability for damages, or debarment from future public contracts. Perhaps most importantly, an IP creates a monitoring process where an Independent External Monitor—which can be an individual, a civil society organization, or a group with combined expertise and technical support—independently scrutinizes the deal for any anomaly or violation of the IP, and ensures proper implementation of the contract and the satisfaction of all stakeholders’ obligations. To execute these functions, the monitor is entrusted to examine government tender documents, bidders’ proposals, and evaluator’ assessment reports of the bids, to visit construction sites and contractor offices, and to facilitate exchange with the local communities and public hearings.

IPs have previously been used in public procurement projects in many countries, including Romania, Bulgaria, the Czech Republic, Slovenia, Portugal, Hungary, Latvia, Poland, Greece, Italy, India, and many others. It’s notable that many of the states that have embraced IPs are countries where governments have a long track record of corruption and abuse of power. IPs have at least three roles to play to help facilitate transparency and civic monitoring so as to safeguard the competitiveness and fairness of the procurement process:

Continue reading →

Brazil’s “Clean Slate” Law Keeps Lula Off Ballot — Now Let’s Smear His Prosecutors

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Brazil’s top electoral court ruled Friday, August 5 (here), that former President Luiz Inacio Lula da Silva, now serving a 12-year sentence for accepting a bribe, cannot stand as a candidate in Brazil’s upcoming presidential elections.  “Lula,” as he is universally known, was to be the candidate of one of Brazil’s major parties, and if pre-election polls are to be believed, he stood a very good chance of winning, setting up the unusual (to say the least) situation of a head of state governing from a jail cell.  Absent a last-minute reversal by Brazil’s Supreme Court, Lula will now sit out the election in jail and the threat Brazil’s government will be run by a convict is over.

Lula’s supporters claim he is a political prisoner and is being unfairly denied the right to run for president.   In doing so, they have glossed over the extraordinary protections the Brazilian legal system has afforded him, both in his effort to overturn his conviction and to run for office.  Having failed in the courts of law, they are now trying to smear the prosecution in the court of public opinion.  A report from a well-placed source in Brazil — Continue reading →

Some Preliminary Thoughts on US v. Hoskins and its Implications for FCPA Enforcement

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The US Foreign Corrupt Practices Act (FCPA) is aggressively enforced but rarely litigated—most actions are brought against corporate entities that settle with the government. For that reason, any judicial opinion on the FCPA’s meaning, especially one from an appellate court, will attract a great deal of attention.

A couple weeks back, a US federal appeals court based in New York decided such a case, US v. Hoskins. The case addressed the question of whether a foreign national whose relevant conduct took place entirely outside the United States could be charged, not with violating the FCPA, but with conspiracy to violate the FCPA and/or aiding and abetting an FCPA violation. I’m a bit late to the discussion of Hoskins, which has already produced a great deal of commentary in the FCPA blogosphere (see here, here, here, here, and here). But for what it’s worth, here’s my quick summary of what the case is about, followed by some knee-jerk thoughts and observations about its significance. Continue reading →

Corporate Liability for Corruption in India: Some Notes on Reform

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Last month, the Indian legislature passed sweeping amendments to the Prevention of Corruption Act. If accepted in their present form, those amendments portend a major shift in India’s antiquated legal regime pursuing corporate criminal liability, making it much easier to go after corporations on corruption charges. (The amendments make other changes as well, which I have discussed elsewhere. Here, I only focus on the changes that would pertain to corporate liability for corruption offenses.) The amendments do make some welcome changes, but they do not go far enough to update India’s antiquated legal regime for corporate criminal liability. I’ll touch on three features of this regime and discuss how the new amendments do or do not effect significant changes. Continue reading →

Will the Swiss Government Heed Civil Society’s Advice When Returning Stolen Assets to Uzbekistan?

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Readers of this blog know the Swiss government faces a dilemma in returning several hundred million Swiss francs of stolen assets to Uzbekistan (here and here).  Although the current government has taken small steps towards reform, it remains dominated by the same clique of Soviet-era apparatchiks whose corrupt ways were behind the theft of the assets. Returning the money thus runs a high risk that it will go right back to the culprits or their cronies.

At the same time, the Swiss government has an obligation under the UN Convention Against Corruption to return the assets. Moreover, thanks to decades of misrule, living condition for the average Uzbek remain dismal at best.  Money for everything from basic education and health programs to investment in public works is desparately needed.

Uzbek civil society now offers a solution to the Swiss dilemma.  Acknowledging the reformist leanings of the current government, and wanting to encourage them, civil society proposes that the Swiss government return the funds in tranches.  The return would be keyed to progress in realizing the kinds of reforms the government says it is committed to making.   Internationally recognized measures would be used to gauge progress.

A phased, conditioned return has two advantages.  It offers those in the Uzbek government leverage to persuade reluctant colleagues of the need for change.  At the same time, a phased return avoids swamping the government with a massive amount of money its primitive public financial system simply couldn’t manage responsibly.

The proposal appears in a letter to Swiss authorities authored by prominent Uzbek citizen, both those who have had to flee the country to escape political repression and those (anonymously) who remain.  The English version is here; a Russian version here.  A commentary on the proposal in the Swiss press is here, and background on the circumstance the led to the theft is here.

Can Blockchain Help Bypass the Problem of Corruption in Development Aid?

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Corruption undermines the effectiveness of foreign aid. While precise numbers are hard to come by, numerous press reports suggest that mass “leakages” (a euphemism for probable theft) are all too common. UN Secretary General Ban Ki Moon has reportedly asserted that approximately 30% of foreign aid is lost to corruption, though controversy over the magnitude and impact of the problem remains (see, for example, here, here, and here). The perception of a severe problem has naturally led to searches for innovative solutions, including technological solutions. One possibility that has been garnering some recent attention is blockchain technology. In fact, a few months ago, the Ministry of Foreign Affairs of Denmark, the think tank Sustainia, and the blockchain currency platform Coinify jointly published a report delineating how blockchain technology can be used to “hack the future of development aid.”

Blockchain systems make use of a shared digital “ledger,” in which each transaction contains the history of all previous transactions; because the ledger is transparent and distributed across many computers, rather than stored in a centralized database, it is (allegedly) not susceptible to manipulation or hacking, and ensures the transparency of all transactions (though not necessarily the real-world identities of those engaged in those transactions). Blockchain is probably best known as the technology that makes possible Bitcoin and other so-called cryptocurrencies. But blockchain technology and its applications are rapidly evolving, and many have already begun to see how this technology can be used as a tool to combat corruption, for example by increasing transparency in land records and by using blockchain systems to support anti-money laundering efforts. Now, companies such as Disberse, AID: Tech, and Donorcoin are developing blockchain-based fund management systems that, their proponents contend, can help reduce corruption in development aid. Blockchain technology would allow donors to transfer money to end users directly (and instantaneously), bypassing the formal financial institutions and corrupt bureaucracies that have often been the source of financial leakage, and preserving a transparent record of all transactions. This would help ensure that aid money goes to where it is intended to go.

Continue reading →

Will Brazilians Elect Their Own Donald Trump?

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Will Brazil get its own Donald Trump? Brazil’s next election is right around the corner (the campaign starts August 16, and first round elections are October 2) but currently Jair Bolsonaro—a right wing, pro-gun rights, anti-gay firebrand who has proudly branded himself the “next Donald Trump”—is polling first among eligible candidates, trailing only former president Lula Inácio de Silva—who as of now is not actually allowed to run due to his conviction on corruption charges—and the “null option” (that is, none-of-the-above). What explains Bolsonaro’s appeal? In large part, the issue of corruption. Revelations of graft and bribery have continued to pile up in Brazil over the last few years—most notably (though not exclusively) in connection with the so-called Car Wash investigation of corruption in Brazil’s state-owned oil company, which may have involved upwards of $5 billion in stolen public funds. These corruption scandals have already led to the impeachment and removal of former President Dilma Rousseff, criminal charges against the current President Michel Temer, and the conviction and imprisonment of former President Lula. Given all this, it’s little wonder that in a recent poll, corruption was ranked as the most important issue for 62% of Brazilian citizens.

Much as Donald Trump pledged to “drain the swamp,” Bolsonaro has centered his campaign on the issue of corruption. He asserts that he is the only candidate in the election who has not engaged in some form of corruption or white collar crime. Of the five major presidential candidates, he’s the only one who is not either from a major party that has been mired in a recent corruption scandal, or been part of a coalition with one of those tainted parties. (Bolsonaro’s party, the PSL (Social Liberal Party) is small, barely present at the national level, and he is advertising his status as a political outsider as one of his appeals.) Thus Bolsonaro has presented himself as the only candidate who will usher in a new, less corrupt era for Brazil.

This places some Brazilian voters who care deeply about corruption in a difficult situation. Many Brazilians may feel like their only alternative to perpetuating a corrupt system is to take a gamble on a disruptive figure like Bolsonaro. Indeed, at a recent campaign event, supporters cited his aggressive anticorruption and anti-crime stances as the principal reasons why they were planning to vote for him. Diehard supporters aside, it’s possible that some Brazilian voters who are not totally comfortable with Bolsonaro might nevertheless be swayed by his outsider persona and his aggressive attacks on Brazil’s current political class. For those who have followed U.S. politics over the past few years, this probably sounds disturbingly familiar—and indeed seems to fit into a now-recognizable pattern, also manifested in the Philippines’ 2016 election of populist, zero-tolerance Duterte. It’s precisely that similarity that should, and I hope will, give these on-the-fence Brazilian voters pause. Continue reading →