Category Archives: Guest Commentary

Guest Post: After the Tsunami–Mexico’s Anticorruption Outlook Under Andres Manuel Lopez Obrador

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Today’s guest post is from Bonnie J. Palifka, Associate Professor of Economics at Mexico’s Tecnológico de Monterrey (ITESM), and Luis A. Garcia, a partner at Villarreal-VGF specializing in corporate compliance and anticorruption matters:

The results of Mexico’s federal elections last July have been described as a “tsunami” for Andrés Manuel López Obrador (AMLO) and his National Regeneration Movement, known by its Spanish acronym “Morena.” AMLO won 53% of the popular vote and Morena swept the House and Senate, as well as a majority of the nine state governorships up for grabs and several local legislatures. This is all the more remarkable considering that Morena was founded as a civil society organization in 2011 (and registered as a political party in 2014), and was fighting for control of Mexico’s political left against AMLO’s former party, the PRD. Many are hopeful that AMLO will lead a transformation of Mexico into a modern, peaceful, fair, and prosperous society like Chile or Uruguay, while others fear that he will take the country down the route of Venezuela. That the same person can engender such different reactions is due in part to the vagueness and inconsistency of AMLO’s rhetoric throughout the campaign: sometimes he would take a highly confrontational and uncompromising attitude toward Mexico’s political and economic elite—what he termed the “mafia of power”—while at other times he would strike a more conciliatory tone. But one consistent theme in AMLO’s rhetoric—and in the analysis of the data on the reasons for Morena’s electoral triumph—was profound indignation at the blatant corruption and impunity of Mexico’s political and business elites.

Mexican voters’ frustration with corruption is understandable. Although in recent decades Mexico has undertaken a number of anticorruption measures—including, under former President Vicente Fox, a new freedom of information law, and, under current President Enrique Peña Nieto, a new National Anticorruption System (SNA), which, among other things, updates national and state laws to criminalize more acts, reduce immunities, and increase punishments—these measures have been insufficient, as reflected in Mexico’s increasingly poor showing on the Corruption Perceptions Index. AMLO identified corruption as Mexico’s most pressing problem and promised to bring about an honest and transparent regime that would be truly responsive to the country’s needs. And, in an encouraging sign, AMLO has brought in a diverse group of highly respected experts and activists, from all sides of the political spectrum, and has appeared flexible and open to dialogue. At the same time, though, he has displayed a puzzling blind spot for potential conflicts of interest, and his optimistic rhetoric has suffered from a lack of specificity, coherence, and concrete proposals. Continue reading →

Guest Post: What To Make of Latin America’s Wave of Anticorruption Prosecutions?

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Today’s guest post is from Professor Manuel Balan of the McGill University Political Science Department:

There seems to be a surge in corruption prosecutions of current or former presidents throughout in Latin America (see, for example, here, here, and here). In the last year we have seen sitting or former presidents prosecuted for corruption in Brazil, Guatemala, El Salvador, Honduras, Colombia, Costa Rica, Ecuador, and Panama. In Peru, Pedro Pablo Kuczynski resigned from the presidency amid corruption probes, and the last three former presidents are either facing trial or serving time for corruption. Argentina may soon join this list as a result of the so-called “Notebook Scandal,” which has triggered a fast-moving investigation that has already snared 11 businessmen and one public official, and is getting closer to former President, Cristina Fernández de Kirchner. (Argentina’s former vice-president Amado Boudou was also sentenced to almost six years in prison for corruption in a separate case.) Indeed, it now seems that Latin American presidents are almost certain to be prosecuted for corruption at some point after leaving office, if not before. My colleagues and I have documented the growing trend of prosecution of former chief executives in the region since democratization in the 1980s: Out of all presidents who started their terms in the 1980s, 30% were prosecuted for corruption. Of those that entered office in the 1990s, 52% were or are being currently prosecuted for corruption. In the group of presidents that began their terms in the 2000s, 61% underwent prosecution for corruption. And, remarkably, 10 out of the 11 presidents elected since 2010 who have finished their mandates either have been or are currently being prosecuted for corruption.

The explanation for this trend is not entirely clear. It’s probably not that Latin American presidents have become more corrupt. Some have suggested that the uptick in corruption prosecutions is a reaction, by the more conservative legal establishment, against Latin America’s “Left Turn.” But the trend towards increased prosecution is hardly limited to the region’s self-identified leftist leaders; in fact, left and non-left leaders are nearly equally likely to be prosecuted for corruption. Part of the explanation might have something to do with changes in prosecutorial and judicial institutions, media, or public expectations—the reasons are still unclear, and likely vary from country to country. Whatever the explanation, is this trend something to celebrate? Some observers say yes, arguing that the anticorruption wave sweeping Latin America is the result of Latin American citizens, fed up with corruption and taking to the streets in protest, putting pressure on institutions to investigate and punish corrupt politicians.

While I wish I could share this optimism, I think it’s likely misplaced. Continue reading →

Guest Post: The One Belt, One Road Initiative Needs a Centralized Anticorruption Body

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Today’s guest post is from Edmund Bao, a lawyer with King & Wood Mallesons who works principally in the areas of international arbitration and anticorruption:

The “One Belt, One Road” Initiative (OBOR), spearheaded by China, is an enormous and ambitious infrastructure development project (or series of integrated projects) involving an inland economic “belt” and a maritime silk “road” that together will include approximately 65 countries across Eurasia and parts of Africa, require a total capital expenditure of approximately US$4-8 trillion dollars, and affect around 4.4 billion people (63% of global population). Given the size of the initiative—as well as the fact that infrastructure projects are often considered especially high corruption risks, and the fact that so many of the countries involved are known to suffer from high levels of public corruption—ensuring integrity in this project must be a top priority if it is to succeed. Some projects have already been affected by corruption, including the cancelled US$2.5 billion Budhi Gandaki Hydro Electric Dam Project in Nepal (irregularities in the project bid phase) and the temporary funding halt for the flagship China-Pakistan Economic Corridor Road Project (due to graft).

The countries participating in OBOR have acknowledged this concern. At the opening of the Belt and Road Forum in June 2017, President Xi Jingping called for countries to “strengthen international counter-corruption coordination so that the Belt and Road will be a road with high ethical standards.” And in the joint communique released at the conclusion of the Forum, the leaders of OBOR countries in attendance agreed to “work together to fight against corruption and bribery in all their forms.” Yet it is not yet clear what measures can or will be put in place to achieve the sort of coordination that President Xi and the other OBOR country leaders recognized is necessary.

I suggest that one way—perhaps the best way—to achieve the requisite level of anticorruption coordination in the context of the OBOR initiative is to establish a supranational anticorruption body with oversight for OBOR projects. That is, I advocate the creation of a “Silk Road Anticorruption Body” that would have four primary functions: Continue reading →

Guest Post: The Problem With Anticorruption Diagnostic Tools Is Not (Primarily) Too Much Standardization

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José-Miguel Bello y Villarino, an official with the Spanish Ministry of Foreign Affairs and doctoral candidate at the University of Sydney, contributes today’s guest post:

There is a wide debate about how to produce and use data to assess and compare countries’ performance, particularly in domains that are, by nature, global such as human rights. In the corruption domain there are some well-known international indexes that purport to express a country’s perceived corruption level in a single number, such as the Corruption Perceptions Index (CPI) published annually by Transparency International (TI). Other diagnostic tools have been developed to assess individual countries’ anticorruption frameworks and policies against some global standard or benchmark. Among the latter, TI produces the National Integrity System (NIS) Country Assessments.

These assessments do not try to determine how much corruption there is in a country, but rather “how well a country tackles the problem.” NIS assessments do not aim to give each country a final “score” that can be compared to the scores of other countries. The assessments’ declared objective is to look into the effectiveness of each country’s anticorruption institutions by focusing on a standard set of “pillars” (things like democratic institutions, the judiciary , the media, and civil society). Consequently, NIS assessments are not meant to provide definitive conclusions, but rather observations within a common framework to supply a starting point for analysis, and to identify risks and possible areas for improvement. Their conclusions are designed to help stakeholders work to develop more concrete and country-specific responses.

The NIS Country Assessments, and similar tools (TI has identifies roughly 500 diagnostic tools used in the anticorruption area), have come in for a fair share of criticism. Much of this criticism centers upon their allegedly formalistic, formulaic, standardized approach to assessing anticorruption institutions. Some of those criticisms have appeared on this blog. A few months ago Richard Messick posted a commentary on a piece by Paul Heywood and Elizabeth Johnson that challenged the relevance and value of NIS reports for developing democracies (using Cambodia as an illustrative example), principally due to insufficient appreciation of cultural distinctiveness and an overemphasis on compliance-based approaches. Last month, Alan Doig’s post continued this conversation. Mr. Doig defended the value of the NIS Country Assessments as they were originally conceived, but argued that TI’s current approach to NIS assessments has become overly formalistic, which limits the utility of NIS country studies as an effective starting point for analysis or platform for progression. Though coming from a different perspective, Mr. Doig’s criticism is very similar to the core argument of Professors Heywood and Johnson. In essence, they share a skepticism that one can usefully apply broad global standards or categories to individual countries, given each country’s unique, particular, idiosyncratic circumstances.

Respectfully, I think these criticisms go too far. Taking individual country circumstances into consideration of course has value. However, standardization of assessment methodologies, the somewhat “formulaic” approach, can have benefits that may outweigh the costs. Continue reading →

Guest Post: Towards an African Voice on Anticorruption

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Today’s guest post is from Selemani Kinyunyu, Senior Policy Officer for Political and Legal Matters at the African Union Advisory Board on Corruption. The views expressed in this post are his own.

The African Union (AU) has declared the year 2018 is the African Anti-Corruption Year, and the fight against corruption was a central focus of the 31st Summit of the AU, which was held this past July 1 and 2 in Mauritania. The Summit, along with other recent developments, have made clear that there is an emerging African voice on this issue, one that emphasizes certain issues of pressing importance and that articulates a distinctive perspective on these issues. The AU Summit in particular highlighted four notable issues: Continue reading →

Guest Post: By Refusing to Respect Attorney-Client Confidentiality, European Courts Threaten To Undermine Anti-Bribery Enforcement

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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:

In the fight against transnational bribery and other forms of corporate crime, a key element of some national prosecution agencies’ strategy is to encourage corporations to “self-report” to the government and to cooperate with any subsequent investigation. The United States Department of Justice (DOJ) pioneered this strategy, but other jurisdictions are beginning to adopt it as well. The basic approach is to offer companies both a stick and a carrot: The stick: If corporations do not self-report and are ultimately discovered, they will be prosecuted vigorously. The carrot: A self-reporting, cooperating company can obtain a more favorable settlement, and perhaps avoid prosecution altogether. From a public policy perspective, it is vastly more efficient for prosecutors to work with corporations in the fight against corruption, essentially enlisting them as partners to detect, investigate, and bring to justice the individuals responsible for corruption, than for prosecutors to do all this work themselves.

From the company’s perspective, though, the decision whether to self-report is difficult: By making a first phone call to a prosecutor, the company all but commits to negotiating a settlement and abandons both the chance of non-detection and the (perhaps scant) possibility of a successful defense. At a minimum, starting this process will entail large costs (particularly legal fees), as well as risks, including the risk that prosecutors may discover more matters to be investigated. There is also the problem, already discussed on this blog, of evaluating whether a negotiated outcome in one country will preclude or deter prosecution in another. And at least at the early stages, the company may not even be certain whether a violation has in fact taken place, or how widespread or egregious such violations may have been. For these reasons, when a company’s leaders learn that there may have been violations of anti-bribery or other laws, the company will retain a seasoned legal team to oversee a thorough internal investigation of the facts in order to make a reasoned decision whether, and where, to self-report.

When a company asks lawyers to do this, it is essential that the attorneys’ work be protected by the attorney-client privilege, at least until such time as the company decides to share fruits of the investigation with prosecutors. If a company knew that everything learned or generated by its lawyers in the course of an internal investigation could be subject to seizure or forced disclosure to prosecutors, then companies would face a huge disincentive to start the process of conducting an internal investigation at all, since doing so could simply create a handy road map – and compelling evidence — for the prosecutor. In the United States, although the conduct of such an internal investigation poses a number of possible traps for the unwary, if the investigation is properly managed then the company can generally be assured that no prosecutor will get her hands on the fruits of its lawyers’ work unless and until the company specifically authorizes such disclosure. Matters are more complicated in Europe, however. For example, in-house counsel are generally not considered to be “attorneys” capable of generating a protectable professional privilege. And in some countries, such as France, the client does not necessarily have the power to “waive” the secret professionel (the rough equivalent of the attorney-client privilege) at all. Most notably—and most troublingly—recent court decisions in the UK and Germany have gone even further in making the results of lawyers’ internal investigations discoverable by prosecutors without the company’s consent. These decisions, if not reviewed or curtailed by legislation, will create huge disincentives to self-investigation, and hence to self-reporting. Continue reading →

Guest Post: How to Fix TI’s National Integrity System Country Assessments

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GAB welcomes back Alan Doig, Visiting Professor at Newcastle Business School, Northumbria University, who contributes the following guest post:

Transparency International (TI) has developed a number of tools to assess corruption in different countries. The best-known is probably the Corruption Perceptions Index (CPI), which purports to reduce each country’s level of (perceived) corruption to a number, to facilitate international comparisons. But TI has also developed another tool, the “National Integrity System” (NIS) assessment, which evaluates an individual country’s governance system with respect to both internal corruption risks and its capacity to fight corruption in the society more broadly; the NIS evaluations typically focus on a number of governance “pillars,” such as the legislative, executive, and judicial branches, audit agencies, anticorruption agencies, media, civil society, etc. (TI maintains a number of more recent NIS assessments on its website.)

Recently, the NIS evaluations have been subjected to withering critiques. For example, last year on this blog Rick Messick summarized a critical article by Professors Paul Heywood and Elizabeth Johnson, which argued, on basis of the NIS for Cambodia, that the NIS reviews relied on a “narrowly conceived institutional approach,” displayed “insufficient appreciation of cultural distinctiveness,” failed to properly conceptualize the notion of “integrity,” and over-emphasized “compliance-based approaches to combating corruption at the expense of the positive promotion of integrity.” Alas, this critique largely misses the mark, and in fact goes a long way (as does Mr. Messick’s blog post) to perpetuating myths and incorrect assumptions about the NIS approach. It’s true that something has gone badly awry with TI’s NIS assessments—on that point, I agree with Heywood, Johnson, and Messick. But though these authors tell us what is wrong with the NIS, they never bother to ask themselves why; more importantly, they make the mistake of confusing errors in execution (on the basis of a single country!) with inherent problems with the concept itself. Continue reading →

Guest Post: There’s Nothing (Legally) New About “Declinations” Under the DOJ’s Corporate Enforcement Policy

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Today’s guest post is from Professor Karen Woody, at Indiana University’s Kelley School of Business:

Last year, the US Department of Justice (DOJ) announced a new “Corporate Enforcement Policy” (CEP) that would apply to Foreign Corrupt Practices Act (FCPA) cases, among others. A key feature of the CEP was the offer of leniency—in the form of a “declination”—so long as the company met certain conditions, including voluntary disclosure of the violation, full cooperation, and disgorgement of any ill-gotten gains from the unlawful conduct. While the basic contours of the DOJ’s new policy are reasonably clear, the use of the term “declination” has created some confusion and uncertainty. Is a “declination” merely a decision not to prosecute? Is it something more? Does it depend?

This confusion is illustrated by Maddie McMahon’s post last month, in which she argued that declinations granted pursuant to the CEP are indeed a “new” kind of enforcement action, distinct from a simple decision not to prosecute. And the DOJ has to some extent fostered that understanding: As Maggie points out, the CEP itself states (somewhat enigmatically), “if a case would have been declined in the absence of such circumstances [of compliance with the CEP], it is not a declination pursuant to the Policy,” which seems to imply that there still may be DOJ declinations, in addition to distinct declinations “pursuant to the CEP.” But in fact the CEP does not create a new mechanism for resolving FCPA cases (or other corporate enforcement actions). What it does do (confusingly and unhelpfully) is use the same term—“declination”—to describe two distinct, but familiar well-established, types of resolution.

To see this, it is critical to distinguish two types of cases for which the DOJ might issue a “declination” pursuant to the CEP: (1) unilateral declinations, where any required disgorgement is made in a separate settlement with the Securities and Exchange Commission (SEC); and (2) “declinations with disgorgement,” in which the SEC lacks jurisdiction and the disgorgement required to qualify for a “declination” under the CEP is made as part of an agreement between the company and the DOJ. Continue reading →

Guest Post–Assessing Corruption with Big Data

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Today’s guest post is from Enestor Dos Santos, principal economist at BBVA Research.

Ascertaining the actual level of corruption is not easy, given that it is usually a clandestine activity, and much of the available data is not comparable across countries or across time. Survey data on corruption experience can be helpful, but it is often limited to very specific kinds of corruption (such as petty bribery). Researchers and analysts have therefore, quite reasonably, tended to rely on subjective corruption perception data, such as Transparency International’s well-known Corruption Perceptions Index (CPI). (The CPI aggregates corruption perception data from a variety of other sources, mostly expert assessments.) But conventional corruption perception measures (including those use to construct the CPI) have well-known problems, including limited coverage (with respect to both years and countries) and relatively low frequency (usually annual). And they rely on the perceptions of a handful of experts, which may not necessarily be representative. These limitations mean that while traditional perception measures like the CPI may be useful for some purposes, they are not as helpful for others, such as measuring the impact of individual events or news reports on corruption perceptions, or how changes in corruption perceptions affect government approval ratings.

To address these concerns, a recent study by BBVA Research, entitled Assessing Corruption with Big Data, offered an alternative, complementary type of corruption perceptions measure, based on Google web searches about corruption. To construct this index, we examined all web searches classified by Google Trends in the “Law and Government” category for individual countries, and calculated the proportion of those searches that contain the word “corruption” (in any language and including its misspellings and synonyms). Our index, which begins in 2004, covers more than 190 countries and, unlike traditional corruption indicators, is available in real-time and with high-frequency (monthly). Moreover, it can be reproduced very easily and at very low cost.

Here are some of our main findings: Continue reading →

Guest Post: The UK’s Compensation Principles in Overseas Corruption Cases–A New Standard for Aiding Victims of Corruption?

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GAB is delighted to welcome back Susan Hawley, Policy Director at Corruption Watch, to contribute today’s guest post:

The issue of whether money from foreign bribery settlements should go back to the people of affected countries has generated a fair amount of heat over the years. Back in 2013, the World Bank’s Stolen Asset Recovery Initiative (StAR) asked whether countries whose people were most harmed by corrupt practices were being left out of the bargain in foreign bribery settlements. According to the StAR study, out of the $6 billion in monetary sanctions imposed for foreign bribery in 395 settlements between 1999 and 2012, only 3.3%, or $197 million, had been returned to the countries where the bribes were paid. Those statistics have provoked considerable controversy, as has the question whether the UN Convention Against Corruption (UNCAC) requires states parties to share money from foreign bribery settlements with affected countries. Yet the fact remains that when the huge fines paid by US and European companies for bribing officials in developing countries go into the treasuries of the US and Europe, while the people of those countries affected by that bribery get nothing, this creates a serious credibility and legitimacy problem for the international anticorruption regime.

For that reason, the UK enforcement bodies’ publication, this past June 1st, of joint principles to compensate overseas victims of economic crime is a welcome development, and provides another opportunity to think again about what is possible and what is desirable in terms of compensating the people of affected countries when companies get sanctioned for paying bribes. The UK Compensation Principles were first mooted and drafted at the 2016 London Anti-Corruption Summit; that Summit’s Joint Communique recognized that “compensation payments and financial settlements … can be an important method to support those who have suffered from corruption,” and led nine countries (though only four from the OECD) to commit to develop common principles for compensation payments to be made “safely, fairly and in a transparent manner to the countries affected.” The UK’s new principles are an effort to fulfill that Summit commitment. They commit the UK’s enforcement bodies to:

  • Consider compensation in all relevant cases;
  • Use whatever legal means to achieve it;
  • Work cross-government to identify victims, assess the case and obtain evidence for compensation, and identify a means by which compensation can be paid in a transparent, accountable and fair way that avoids risk of further corruption; and
  • Proactively engage where possible with law enforcement in affected states.

Interestingly, these principles have been in informal operation since late 2015, which helps shed some light on how these principles are likely to operate in practice. Continue reading →