Category Archives: Commentary

Building Booms and Bribes: The Corruption Risks of Urban Development

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Windfall gains often create opportunities for corruption. The big inflow of money increases the opportunities and incentives for kickbacks and bribery as a means to capture new funds. Well-known examples of this phenomenon include disaster relief efforts, resource booms, and humanitarian aid. Yet the concern is not limited to those contexts. Changes in the price and value of land in a given area can also create the opportunity for windfall, and associated corruption risks.

The corruption risks in the land sector and real estate industry have been discussed broadly as pervasive; routine land administration and land grabbing provide ample opportunities for corruption to flourish where land governance is weak. Yet these discussions sometimes overlook another sort of corruptogenic windfall in land markets, one that is often hiding in plain sight: the effects of gentrification of urban centers. Experiences from cities around the world exemplify three common ways in which these windfall gains from gentrification provide opportunity for corruption. Continue reading →

Fighting Environmental Corruption in the Mekong River Basin: More Firepower Needed

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The forests, wildlife, plants, and vegetation of the Mekong River Basin are under sustained assault.  Not from some virulent new fungus or mutant virus.  No, the attacker is a man-made pathogen: the inability of the region’s governments to curb the rampant corruption eating away at the legal structure that protects the basin’s ecosystem.  Officials of basin governments are being paid to condone logging in conservation zones, to issue export permits for protected flora and fauna, and to otherwise flaunt laws meant to prevent an environmental catastrophe.  No other ecosystem is under such deadly assault, and unless the trend is arrested, the World Wildlife Fund predicts that within 20 years the region, twice the size of California and rivaled only by the Amazon for biological diversity, could lose more than a third of its remaining forests along with the exotic plants and wildlife that inhabit them.

The six governments of the region – Cambodia, China, Lao PDR, Myanmar, Thailand, and Vietnam – have declared war on environmental corruption and have begun counterattacking.  Environmental protection laws are being tweaked, and investigators and prosecutors trained to detect and prosecute environmental crime.  But important though these steps are, in the face of impending ecological disaster more firepower is needed.  Here are four ways to step up the fight: Continue reading →

Brexit and Anticorruption

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So… Brexit. I don’t know nearly enough to weigh in on what this startling development means for European politics, British politics, macroeconomics, Donald Trump’s chances in the U.S. presidential election, or the price of tea in China. But since Brexit is such a major development, I felt like I should say something about the implications for anticorruption, even though that probably wouldn’t be on most people’s top-ten lists of important Brexit implications.

Fortunately, in coming up with something to say about Brexit and anticorruption, I don’t have to work too hard, because two excellent recent posts—one from Robert Barrington at Transparency International UK, another from Corruption Watch—have very nice, clear discussions of the issue. I don’t really have much to add, but let me highlight three of the key worries raised in both posts, and then throw in one more, somewhat more speculative and longer-term question: Continue reading →

Coming Along for the Ride: Regional Human Rights Courts Should Demand Government Measures to Affirmatively Address Corruption

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In an earlier post, I discussed an order by the Inter-American Court of Human Rights demanding that Brazil investigate and report on prison guards’ corruption. Mandating that a country review its own corruption seems to be a new step for an international judicial body. The approach suggests a way to more closely integrate corruption-related concerns into international human rights work: including corruption-specific mandates within broader holdings. Other international adjudicative bodies, particularly regional human rights courts, should follow this model.

The idea of directly adjudicating corruption through an international court has been floated but also strongly opposed. Some corruption commentators advocate making grand corruption a crime against humanity that could be prosecuted by the International Criminal Court (ICC). As discussed on this blog, Judge Mark Wolf has proposed an independent international anticorruption court, an idea that met with some tempered support and a good deal of opposition (see here, here, and Matthew’s concerns here). I agree that grand corruption does not belong in the ICC or an independent court. To reject grand corruption as a stand-alone offense to be prosecuted in international criminal tribunals is not, however, to reject that corruption should be addressed by international criminal tribunals where it is relevant. Existing bodies like regional human rights courts—the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the much newer African Court on Human and Peoples’ Rights, as well as other, even younger human rights bodies in Southeast Asia and the Middle East—should explicitly address corruption-related issues within the context of the large volume of human rights adjudication already taking place. As other commentators have already discussed, these regional human rights courts can fold corruption into their respective mandates and generate meaningful corruption-related law (see here, here, and here). Indeed, regional human rights bodies are already well-placed to highlight corruption where it emerges and to respond appropriately to both the existing situation and future concerns:

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Compensating Corruption Victims: American Law on Bribery Damages

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Parties to the UN Convention Against Corruption pledge in article 53 to “pay compensation or damages to another State Party that has been harmed” by an act of corruption, but nowhere does the convention say who it is that is harmed by corruption or how compensation is to be calculated.  In a submission to the 2015 meeting of convention parties, the UNCAC Coalition, an global network of civil society organizations, argued that the absence of guidance is “one of the main obstacles to the award of damages to victim countries” and urged the publication of “best practice examples with respect to the identification, quantification and reparation of the damage caused by corruption” as step in developing the needed guidance.

This writer recently summarized how American courts deal with compensation issues when the corrupt act is the payment of a bribe.  Written for the Open Society Foundations’ Justice Initiative, the paper explains that under both federal and state law individuals, businesses, and even foreign governments can recover damages for injuries sustained as a result of bribery and that with passage of the Foreign Corrupt Practices Act the number of cases has exploded.  Not all claimants have been successful of course.  In some actions their damages were too remote (not proximately caused in legal language); in others claimants failed to show how the bribery injured them, and in some cases foreign governments were denied recovery because their officials were so deeply involved in the bribery scheme that the government did not qualify as a victim under U.S. law.  But other claimants have enjoyed significant success — realizing in some instances awards in the tens of millions of dollars.

Whether American law is a “best practice example” of the kind the UNCAC Coalition had in mind I don’t know.  But it is an example, and one, given the creativity of American lawyers (spurred by the chance for a lucrative fee), that provides those thinking about victim compensation for corruption a rich vein of case law to explore.

The paper is the fifth in a series of papers commissioned by the Open Society Justice Initiative on civil society and anticorruption litigation.  It follows earlier ones on standing by GAB editor-in-chief Matthew Stephenson, on civil society litigation in India by Vidhi Centre for Legal Policy Director Arghya Sengupta, on private suits for defrauding government by Houston Law School Professor David Kwok, and private prosecution by Tamlyn Edmonds and David Jugnarain.

 

The Correlation Between Economic Freedom Indexes and Corruption Indexes Tells Us Nothing

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Anticorruption advocates often argue that the fight against corruption is not just about strengthening systems for detecting and punishing corrupt behavior, but about implementing broader systemic reforms to policies and institutions that create the conditions in which systemic corruption is more likely to take hold. That advice is sound as far as it goes—but the challenge then becomes identifying those policies and institutions that have this “corruptogenic” character. One prominent hypothesis in this vein is that corruption thrives in environments where there is a lack of “economic freedom”—where the government plays an outsize role in the economy, imposes lots of burdensome regulations on private enterprise, does not provide effective protection for private property and contract rights, and generally restricts economic activity. This idea (which is perhaps especially attractive to those who favor a limited government role in the economy for other reasons) is certainly plausible. But is it true?

Proponents of the idea that a lack of economic freedom leads to more extensive corruption can point to a substantial body of cross-country research that purports to find a strong negative correlation between economic freedom and corruption. Most of this research measures (perceived) corruption using one of the familiar international indexes, most commonly Transparency Internationals’ Corruption Perceptions Index (CPI). The research in this vein also measures “economic freedom” using indexes produced by NGOs—the most widely-used of which is the Heritage Foundation’s Index of Economic Freedom (IEF), which aggregates a number of variables thought to be related to economic freedom, grouped into four different categories (rule of law, limited government, regulatory efficiency, and open markets). Numerous studies have found a strong and statistically significant correlation between the IEF and the CPI, and treated this as strong evidence that a lack of economic freedom is at the very least associated with, and most likely causes, more widespread corruption (see here, here, here, here, here, and here).

Unfortunately, these results tell us precisely nothing. Put aside the standard admonition that we can’t infer causation from correlation. Put aside the concern that “economic freedom” may not be a coherent concept, and that the Heritage IEF aggregates a large number of disparate factors. And put aside worries about whether these studies control for potential additional variables that might influence both corruption and economic freedom. The fatal flaw in drawing any inferences at all from the correlation between the IEF and the CPI is in fact much more straightforward: Continue reading →

Innovative or Ineffective?: Performance-Based Lending as an Anticorruption Tool

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The Sustainable Development Goals’ (SDGs) new focus on fighting corruption and building institutions has generated quite a stir (including on this blog – see here, here, here, and here). But the Millennium Challenge Corporation (MCC) – a U.S. agency responsible for disbursement of assistance geared toward international development targets – has long been acting against corruption through its effort to achieve the SDG precursors, the Millennium Development Goals (MDGs). Institution-building does not appear among the substantive aims of the eight MDGs. Rather, the MCC made anticorruption central to its work by introducing corruption indices into its process for competitive selection of aid recipients. In brief, the MCC Board of Directors chooses aid-eligible countries by evaluating and scoring candidates countries’ “policy performance” on a number of measures. Crucially, in order to qualify for aid, countries must score above average for their income group on the Worldwide Governance Indicators (WGI) “Control of Corruption” score. The indicator is therefore known as the “hard hurdle.” The Board also assesses corruption trends in its analysis of a country’s ability to reduce poverty and generate economic growth, which, with policy performance, comprises the overall evaluation.

This strategy is known as performance-based lending, and the MCC has employed it to award over $10 billion in grants to nearly 40 countries over the past 12 years. Is the MCC approach a good one? Many critics say no. I say yes. Although it is a strategy that is still evolving, performance-based lending—including the corruption control “hard hurdle”—is not only innovative and effective, but important.

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Lessons from a Pathbreaking DfID Anticorruption Project in Tanzania

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Britain’s Department for International Development is funding thoughtful, ambitious projects in Ghana, Tanzania, and Uganda to help those governments step up the enforcement of national anticorruption laws.  What makes the three thoughtful is their recognition that improving anticorruption law enforcement requires the simultaneous strengthening of the entire criminal justice chain – from the entities that turn up possible corruption violations to the agencies which investigate these leads to prosecution services and courts – together with measures to improve  collaboration among them.  What makes the three projects ambitious is that they provide assistance from one end of the chain to another;  building capacity in a single agency can be challenge, building it in several simultaneously even more so.

Yet if developing countries are to do better at catching, prosecuting, and convicting corrupt officials and those who corrupt them, more programs like these three, whether donor- or self-funded, are needed.  It does no good to improve the ability of an anticorruption agency to investigate corruption if prosecutors don’t have the skill to present a convincing case.  And no matter how skilled the prosecution, it will be for naught if the courts don’t understand the law or the evidence.

The 4 ½ year, £11.3 million Tanzania project, dubbed “STACA” for Strengthening Tanzania’s Anticorruption Action, was the first of the three DfID projects to tackle the criminal justice chain in one fell swoop, and along with the U4 Anticorruption Resource Center and REPOA, a Tanzanian think-tank, I reviewed its progress at roughly the half- way mark in implementation.  While we trust close study of the review is merited, below I summarize three points that came out of it that I think are particularly critical, both for developing country policymakers looking for ways to enhance the enforcement of their nation’s anticorruption laws and for donor organizations wanting to help them. Continue reading →

A Different Kind of Quid Pro Quo: Conditional Asset Return and Sharing Anti-Bribery Settlement Proceeds

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In my last couple of posts, I’ve returned to a theme I’ve written about before: My skepticism about claims that the U.S. government either should (as a matter of policy) or must (under UNCAC or other legal obligations) share settlement proceeds in FCPA cases with the governments of the countries where the bribery took place. I’m also skeptical that there’s any obligation on the part of U.S. or other supply-side enforcers to use any of this settlement money to fund NGO-sponsored projects in (or for the benefit of) those countries.

Asset recovery, however, is different. When the U.S. (or some other country) identifies – at its own initiative or pursuant to the request of another government – assets held in the U.S. that have been stolen from a foreign government, my reading of the law (both conventional domestic legal principles and Chapter V of UNCAC) is that the U.S. has an unconditional legal obligation to return those assets to their rightful owner. At times, the U.S. has indicated that, although it has a general policy of returning stolen assets to the governments from which they were stolen, it does not view this as a legal obligation. Rather, the U.S. seems to want to leave open the option, in some cases, of attaching conditions to the return of the assets, or funneling them through NGOs or other bodies, rather than simply turning them over to the claimant government. I understand why the U.S. has taken this position: Returning assets stolen assets to a claimant government with a reputation for pervasive corruption—where it seems highly likely much of the money will be stolen again—seems awfully unappealing, and doubly so in those cases where the government officials who stole the money in the first place, or their family members and cronies, retain their power and influence in the claimant country. Hence the instinct to attach conditions to the return of the assets, or to use the money to fund NGOs rather than simply turn it over to the claimant government. The problem, though, is that I’m hard-pressed to come up with a legal basis (notwithstanding some valiant attempts) for doing anything other than handing over the money.

So, the situation as it stands looks something like this (and I acknowledge simplifying quite a bit to make things a tad neater than they actually are): On the one hand, many developing countries want wealthy countries like the U.S. to share foreign bribery settlement proceeds with the countries where the bribery took place, but for the most part the wealthy countries do not want to do this, and assert—correctly—that they are under no obligation to do this under UNCAC or any other legal instrument. On the other hand, many wealthy countries would like to retain the flexibility to attach conditions to asset return (or to use seized assets to fund NGO programs rather than turning the money over to the governments), but the claimant countries in the developing world assert—correctly—that there is a legal obligation (enshrined in UNCAC) to return stolen assets, without strings attached.

Framing the issue this way suggests a possible compromise. (In the interests of disclosure, I should say that this is not my original idea: It came up in a conversation I had recently with an analyst at an anticorruption NGO, but since I haven’t had the chance to clear it with him, I won’t name the person or organization here.) The trade would go like this: Continue reading →

Equity Crowdfunding: Considerations for Anti-Money Laundering Regulation

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Equity crowdfunding involves the use of an internet-based platform to market equity shares in a given company to a wide range of potential investors (the “crowd”). The result is financial democratization of sorts – harnessing the power of the crowd to make many small investments instead of relying on large capital infusions from a relatively small number of sophisticated investors. The key to equity crowdfunding is to keep transaction costs low, so that small businesses are able to participate, without sacrificing investor protection. This latter consideration is especially important given the potentially low financial sophistication of the crowd.

In my last post, I discussed how equity crowdfunding could help small and medium-sized enterprises (SMEs) in developing countries overcome corruption-related barriers to accessing finance. Because equity crowdfunding makes use of internet-based platforms, it is particularly useful for cross-border transactions. As a result, SMEs in developing countries that are unable to access finance through traditional means (often because of corruption in domestic capital markets) can use equity crowdfunding platforms to connect with investors outside of their home countries. As with other technology-based tools that have the potential to sidestep the effects of corruption and contribute to economic development, though, there is also reason to be concerned about the opportunities for corruption for which equity crowdfunding could be abused. In particular, equity crowdfunding platforms could be used to facilitate money laundering, in at least two ways: Continue reading →