Guest Post: How France Is Modernizing Its Criminal Procedure and Streamlining Its Resolution of Corporate Crime Cases

GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris and New York offices of Debevoise & Plimpton and a Lecturer at Columbia Law School, who contributes the following guest post:

For approximately two decades, at least since 2000, France—a signatory to the 1997 OECD Anti-Bribery Convention — has had laws on the books that emulate the U.S. Foreign Corruption Practices Act (FCPA) by criminalizing bribes to foreign public officials. For most of that time, these laws were not effectively enforced: During the first 15 years after France prohibited foreign bribery, not a single corporation was convicted in France. The reasons for this—previously discussed on this blog by me and others—included the low maximum penalties applicable to corporations, imprecision in French laws relating to corporate criminal responsibility, lengthy investigations (often lasting over a decade) run by investigating magistrates, and the virtual absence of any possibility of a negotiated outcome. In the absence of French enforcement of its laws against foreign bribery, the U.S. Department of Justice (DOJ) took it upon itself to investigate and prosecute a number of French corporations for FCPA and other violations. These enforcement actions, which were typically resolved by guilty pleas or deferred prosecution agreements (DPAs), netted aggregate fines and other penalties of over $2 billion, not a penny of which was paid to France.

This situation provoked widespread discussion and debate in France, and eventually led to a number of changes in its criminal procedures. Among the most important were the creation, in 2013, of a National Financial Prosecutor’s office (PNF) with nationwide authority to prosecute a variety of financial crimes, and the adoption, in December 2016, of the so-called Loi Sapin II, which overhauled many of the criminal laws relating to corporate and financial crime, increasing corporate penalties, adopting a new settlement procedure called the Convention Judiciaire d’Intérêt Public (CJIP) closely modeled on the US DPA, and creating a French Anticorruption Agency (AFA) to supervise newly-mandatory corporate compliance programs and issue guidelines for corporate behavior. These reforms have already produced some impressive results, including major settlements (sometimes in cooperation with other countries like the US and UK) with large French and multinational companies (see, for example, here, here, and here).

An interview published this past April with Jean-François Bohnert, who has served since October 2019 as the National Financial Prosecutor, sheds some light on how France’s recent legal and institutional reforms are transforming its enforcement of its laws against foreign bribery and other complex corporate crime. In that interview, M. Bohnert understandably focused on his office’s successes; he was particularly proud of the number of cases his office had handled with a relatively small staff. But to my mind, by far the most interesting and important thing that came out of this interview was the fact that, of the 592 cases handled by the PNF in 2019, 81% were so-called “preliminary investigations” managed exclusively by the PNF, while only 19% were led by investigating magistrates. To someone unfamiliar with the French legal system, the significance of this statistic may not be readily apparent, but in fact it suggests an important change in the French approach to corporate misbehavior. Continue reading

Guest Post: Anonymous Companies Are Undermining Mexico’s Public Health

Today’s guest post is by Miguel Ángel Gómez Jácome, the Communications Coordinator at the Mexican civil society organization Impunidad Cero (Zero Impunity).

The COVID-19 pandemic has already affected millions of people. (As of the time this piece was initially drafted, around 2 million people had been infected; the exponential spread of the virus means that by the time this piece is published, that number is likely to be much higher.) And while Mexico has not yet been as severely impacted as other countries, official statistics (which likely understate the true prevalence) already report thousands of infections and hundreds of deaths. To confront this problem, Mexico, like other countries, will need to marshal its resources effectively. Unfortunately, though, Mexico’s ability to manage the COVID-19 epidemic is threatened by Mexico’s epidemic of embezzlement in the health sector, much of it facilitated by anonymous shell companies. This widespread corruption drains away vital public resources needed to combat public health emergencies like the COVID-19 pandemic.

In March 2020, two civil society organizations (Justicia Justa (Just Justice) and Impunidad Cero (Zero Impunity)), documented the extent of the problem in a research report entitled Fake Invoices: The Health Sector Epidemic. The research found that between 2014 and 2019, 837 shell companies issued 22,933 fake invoices to 90 health institutions across the country (in 30 of Mexico’s 32 states, as well as the federal government), ultimately embezzling a total of over 4 billion pesos (roughly $176 million US dollars) from the health sector—an amount that could have paid for around 80,000 hospital beds or between 3,400 and 6,900 ventilators. (To put this in context, Mexico currently has 5,000 ventilators in the whole country, and the government is looking to acquire 5,000 more.) And the problem is only getting bigger: According to Mexico’s Tax Administration authority (the SAT), the number of anonymous shell companies in the country has increased from 111 in 2014 to over 9,000 in 2020.

To crack down on the abuse of shell companies to embezzle public funds from the health sector (as well as other sectors), the authors of the Fake Invoices report propose three responses: Continue reading

Guest Post: What the U.S. Congress Must Do To Ensure Adequate Oversight of COVID-19 Relief Spending

Today’s guest post is by Shruti Shah, the President and CEO of the Coalition for Integrity, a civil society advocacy organization focused on corruption in the United States.

We are facing an unprecedented crisis, and governments around the world have responded with unprecedented actions. In the United States, Congress has responded to the economic disruption caused by the COVID-19 crisis with the $2 trillion CARES Act and the subsequent $484 billion replenishment; still more legislation, allocating even more money for crisis response, is under discussion. When this much money is in play, oversight and fraud prevention are essential. There are already reports of PPP loans meant for small businesses going to larger companies, scammers targeting small business owners, stimulus checks being sent to deceased people, and several other COVID 19 scams. But the current safeguards for preventing fraud, corruption, and abuse in COVID-19 relief spending are woefully insufficient. As negotiations over further relief packages continue, those in Congress who care about government integrity—and the effectiveness of these trillion-dollar programs in achieving their objectives—should insist on correcting these deficiencies. In particular, here are five crucial steps that Congress can and should take to ensure that COVID-19 relief spending helps its intended beneficiaries rather than lining the pockets of grifters and grafters: Continue reading

Guest Post: COVID-19 and Corruption–Two Risks and One Opportunity

Today’s guest post is from Peter Glover, Program officer for the Center for International Private Enterprise’s Anti-Corruption and Governance Center.

The immediate consequences of COVID-19 are visible and visceral for everybody, even as some feel the effects more than others. In addition to reshaping everyday life, COVID-19 will also transform global governance—including with respect to corruption and related issues. In this post I want to emphasize three ways that the COVID-19 pandemic will interact with corruption: Continue reading

Guest Post: Pushing for Anticorruption through the G20 Civil Society Engagement Process

Today’s guest post is from Blair Glencorse, the Executive Director of the Accountability Lab

As many readers of this blog know, the annual G20 meeting has a variety of associated processes, including a forum for engagement with global civil society known as the C20. This is an opportunity for civil society organizations (CSOs)—including grassroots groups, rights-focused organizations, and other activists—to feed policy recommendations directly to the most powerful governments in the world. This process has not been without challenges, especially when the G20 meeting is held in a country that is not exactly friendly to civil society activism (including Russia in 2013, China in 2016 and this year in Saudi Arabia). More generally, promises have not always matched realities, and governments have not always lived up to their commitments. Nevertheless, the C20 remains an important mechanism for ensuring that diverse, citizen-oriented voices from civil society are heard as part of G20 decision-making.

The C20 has a number of working groups, including an Anti-Corruption Working Group (ACWG), which I am co-leading this year with Dr. Saleh Al-Sheniefi. Our mandate is to prepare “comprehensive recommendations for consideration by leaders on how the G20 could continue to make practical and valuable contributions to international efforts to combat corruption.” The ACWG has active participation from civil society members from more than 50 countries, and—after consulting with other G20 engagement groups and consulted with numerous external experts—we have drafted a 3-page policy paper which will be sent to the parallel G20 Anti-Corruption Working Group in mid-May. The paper is open for comments for the next several weeks; and we would welcome any and all ideas from this blog’s readership.

While there are obviously many aspects of the corruption problem and its potential solutions that we could have addressed, we chose to focus on what we understand to be the G20’s main anticorruption priorities. (Our thinking is that, while getting the G20 to listen and live up to its commitments is always challenging at best, the odds are better if civil society’s recommendations align with the G20’s own sense of its top priorities in this area.) In particular, our policy paper focuses on the following items: Continue reading

Guest Post: Lessons from the Campaign for the UK Bribery Act

Today’s guest post is from Robert Barrington, who is currently Professor of Anti-Corruption Practice at the University of Sussex’s Centre for the Study of Corruption, and who previously worked for Transparency International’s UK chapter (as Director of External Affairs from 2008-2013, and as Executive Director from 2013-2019).

The United Kingdom Bribery Act (UKBA) was enacted into law just over a decade ago, on April 8th 2010. This overhaul of UK law on transnational bribery was the culmination of a dozen years of vigorous campaigning by civil society advocacy groups, including Transparency International’s UK chapter (TI-UK). I was TI-UK’s Director of External Affairs for the final couple of years of that campaign, and I thought it might be helpful to reflect on some of the key lessons we learned in the course of the campaign for the UKBA. I explored these issues at greater length in a lecture marking the tenth anniversary of the UKBA, but in this post I want to focus on three of the most important lessons that we learned from the campaign for the UKBA, lessons that I hope will be useful to other civil society organizations engaged in similar campaigns elsewhere. Continue reading

Guest Post: Measures To Counter Corruption in the Coronavirus Pandemic Response

Today’s guest post is from Sarah Steingrüber, an independent global health expert and Global Health Lead for CurbingCorruption.

The coronavirus pandemic is a global health challenge the likes of which has not been seen in over a century. The outbreak demands swift and bold action not only in the direct response to the pandemic, but also in ensuring that monies are correctly spent, that companies do not profit unfairly from misfortune, and that power is not abused by our leaders.

Two weeks ago, I published a commentary on this blog that identified some of the critical corruption risks associated with the response to the coronavirus pandemic. In today’s post, I turn from a diagnosis of the risks to some possible solutions. In particular, I want to highlight four types of measures that will help to mitigate some of the corruption risks that were identified in my previous post. Continue reading