Fighting Natural Resource Corruption: The Solomon Islands’ Challenge

Posted on by
3

 

On September 8 & 9 the Government of Solomon Islands, the UN Office on Drugs and Crime, and the UN Development Program will host a workshop in Honiara to discuss the national anticorruption strategy the government is preparing.  One issue almost certain to arise is how the government can intensify the fight against corruption in the logging and mining sectors. Both sectors are critical to the nation’s economic well-being.  Commercial logging is currently the largest source of export revenues, but earnings are expected to decline sharply over the coming decade as forest reserves are depleted (due in no small part to corruption).  The hope is that increases in the mining of the country’s ample reserves of bauxite and nickel will replace losses from forestry.

Corruption in both sectors has been documented by scholars (here, here, and here for examples), the World Bank (here), and the Solomon Islands chapter of Transparency International.  The government has not only acknowledged the problem but has committed to addressing it.  Its recently released National Development Strategy 2016 – 2035 makes controlling corruption in logging and mining a priority.  As the strategy explains, corruption in the two sectors robs government of needed revenues and deprives local communities of the benefits from the development of resources on or under their lands.

Identifying a problem is one thing.  Coming up with solutions is another, particularly in the case of resource corruption in the Solomons where the combination of geography, poverty, and huge payoffs from corrupt deals make curbing it especially challenging.  The remainder of this post describes the hurdles Solomon Islanders and their government face and suggests ways they might overcome them.       Continue reading →

Larger Governments Have Less Corruption (Part 1 – The Evidence)

Posted on by
3

Many people believe that one of the most important root causes of public corruption is “big government.” This view was perhaps captured most famously and most succinctly by Gary Becker, the late Nobel Laureate economist, who declared (in a couple of memorable op-ed headlines), “If you want to cut corruption, cut government” and “to root out corruption, boot out big government.” Professor Becker was not what you would call cautious or circumspect in advancing this claim: He insisted that “instituting large cuts in the scope of government is the only surefire way to reduce corruption,” and that without such cuts even the most well-intentioned anticorruption reforms and crackdowns would fail, because “corruption always reemerges wherever governments have a major impact on economic conditions.” Though Professor Becker was perhaps the most blunt (and famous) advocate for this view, many others have taken this position. (See here, here, here, and here.) Indeed, a while back I attended an anticorruption conference at which a former senior minister of a European country (whose identity I cannot disclose due to the conference’s confidentiality rules) declared that the key to reducing corruption in his country was the decision to drastically shrink the public sector, slashing taxes, public spending, and the overall size of government–and this ex-official called on other countries to follow that advice as well.

But before we go charging ahead advising countries that the only way that they can get their corruption problem under control is to cut their governments, it might make sense to assess whether the available empirical evidence actually supports Becker’s hypothesis. Is it true that (all else equal) countries with larger governments have more corruption, compared to countries with smaller governments?

The answer is no. If anything, the evidence cuts in the opposite direction. Continue reading →

Guest Post: Limited Corporate Criminal Liability Impedes French Enforcement of Foreign Bribery Laws

Posted on by
2

Frederick Davis, a lawyer in the Paris office of Debovoise & Plimpton, contributes the following guest post:

The U.S. Foreign Corrupt Practices Act (FCPA), adopted in 1977, prohibits bribery of foreign public officials. In 2000, France adopted its own law on foreign bribery, which generally prohibits the same conduct. Yet despite the similarity of the laws on the books, the FCPA has been vigorously enforced, with scores of settlements and large fines imposed on corporations, while in France, not a single corporation has been convicted of foreign bribery under the 2000 law—even though since that law’s passage, four large French corporations have entered into negotiated agreements with US authorities to settle alleged FCPA violations, paying more than US$3 billion in fines and other penalties. What explains this difference in enforcement?

While suspicions lurk that French authorities may not be terribly serious about fighting overseas corruption, the more plausible explanations lay the blame on other aspects of the French legal system. One difficulty is that French criminal investigations proceed very slowly, often taking ten years or longer. (At least some of the French corporations that negotiated outcomes with the U.S. DOJ were investigated for the same conduct in France; it’s likely that the U.S. authorities declined to defer to a French investigation without having any idea when it might end, or what the result would be.) Second, as Sarah Krys and Liz Loftus have pointed out in an earlier posts on this blog, France lacks a mechanism permitting a negotiated corporate outcome comparable to the “deferred prosecution agreements” and “non-prosecution agreements” (DPAs and NPAs) that the US authorities routinely used to resolve FCPA cases against corporations; even a corporate “guilty plea” is difficult and very rarely used in France. Just as important, though, and perhaps not sufficiently appreciated, is the difference between the two countries’ laws concerning corporate criminal responsibility, and the incentives those laws create for corporate decision-makers: Continue reading →

My Fellow Americans: Please Never, Ever Say (or Imply) That the United States Is the Only Country that Tries To Do Something About Corruption

Posted on by
5

In my last post, I cautioned those of us who talk about corruption to be careful to avoid saying – even casually – that “everyone” in this or that country is corrupt, not only because that statement is incorrect, but also because it’s offensive and counterproductive. I realize that it wasn’t the most important of topics, but language matters, and the political sensitivity of corruption means that those of us from wealthier countries should be especially careful about the language that we use. (Think about David Cameron’s “fantastically corrupt” gaffe at last spring’s London Anti-Corruption Summit for an example of how poorly chosen words can get in the way of substantive engagement.) That’s not to say we should shy away from accurately describing and criticizing systemic corruption where it exists; it’s just a caution against careless hyperbole.

In that (perhaps trivial and nit-picky) spirit, I want to call attention to something else I’ve heard now several times from U.S. speakers at anticorruption conferences, which strikes me as extraordinarily arrogant, offensive, and incorrect. It goes like this:

  • American speaker gets up before multinational audience to talk about the U.S. approach to fighting corruption and, in an apparent effort to defuse precisely the risk of condescension that I’m complaining about, says something like, “Now, one thing we learn from the U.S. experience is that we have a corruption problem too. Corruption is a problem everywhere, including in the United States.”
  • OK, so far so good. But then the American speaker says, “The difference is that in the United States, we try to do something about it.”

Ugh. Is it possible to imagine a more ham-handed, condescending thing to say, especially to a multinational audience? I mean, look, I think that the U.S., for all its faults, can be justly proud of its law enforcement efforts to fight domestic corruption, particularly the role of the FBI, Department of Justice, and federal judiciary. While the U.S. is far from perfect, it’s my view that the culture of impunity pervasive in many parts of the world is, as a relative matter, not nearly as bad in the U.S. And I do think other countries can learn from the U.S. experience. But to suggest that the United States stands alone in its willingness to try to do something about corruption is (A) obviously factually incorrect, and (B) insulting to the hardworking, often heroic men and women in other countries who are fighting against corruption every day, and to the governments in at least some of those countries that have made anticorruption a priority, but are having trouble making progress due to a range of factors (severe resource constraints, powerful entrenched interests, complicated political situations, etc).

And really, what purpose is served, substantively or rhetorically, by saying, “The difference is that in the U.S. we try to do something about corruption”? The speech that follows that opening line would be just as effective if the speaker just said, “Now, one thing we learn from the U.S. experience is that we have a corruption problem too. Corruption is a problem everywhere, including in the United States. But the U.S. experience in our struggle with corruption – both the things we’ve done well, and the challenges and limitations of our approach – may provide some useful lessons for others engaged in a similar struggle.”

OK, OK, I know that this is beyond trivial, and I promise in future posts I’ll return to weightier topics. But this has just been bugging me, so I thought I’d get it off my chest.

Guest Post: The Draft ISO 37001 Anti-Bribery Standard’s Promise and Limitations

Posted on by
6

William Marquardt and David Holley, respectively Director and Managing Director at the Berkeley Research Group, LLC (a private management consulting firm) contribute the following guest post, which is written in their personal capacity and does not necessarily reflect the opinions, position, or policy of the Berkeley Research Group or its other employees and affiliates:

This past April, the International Organization for Standardization (ISO) released its draft standard on anti-bribery management systems (ISO 37001). The standard is tentatively scheduled to be finalized later this year. In substantive content, the draft ISO standard is similar to the FCPA Resource Guide provided by the U.S. Department of Justice and Securities and Exchange Commission, in that it provides a list of elements that an effective anti-bribery/corruption (“ABC”) program should contain. In terms of the specific elements listed, the proposed ISO standard provides a number of sound recommendations – such as a comprehensive, risk-based approach, as well as management commitment to promoting an ethical corporate culture—but with a few exceptions, the draft ISO 37001 standard is not much different from the guidance available from the DOJ/SEC and other sources in multiple jurisdictions.

That’s not to say that there is nothing whatsoever distinctive about ISO 37001. It does differ from the existing guidance in some ways, some good (such as the comprehensive focus on documentation, document retention, and document availability) and some not so good (such as the unrealistic recommendations regarding extension of management’s internal control systems to third-party vendors). The draft ISO standard also puzzlingly omits consideration of certain key issues –such as the labor law and data privacy issues that arise in connection with bribery investigations, questions regarding how to address anti-bribery concerns in connection with M&A or joint venture due diligence, and (most generally) the integration of ABC management systems into the firm’s wider financial, operational, and regulatory functions. But, again, in most respects the ISO 37001 draft standard closely resembles existing ABC guidance.

What makes the ISO 37001 standard distinctive, and the reason its finalization would be potentially such big news, is that ISO 37001 (like other ISO standards dealing with more technical matters) is intended to be subject to independent “certification” by third-party auditors. In other words, if and when the ISO 37001 standard is finalized, companies will be able to hire auditing firms to review their ABC programs and (if the auditor determines the firm meets the ISO 37001 criteria) to provide a formal certification that the company is ISO 37001-compliant. The question whether formal ISO 37001 certification of this sort will be a good thing (for firms, or for the world) has been hotly debated (for previous discussions on this blog, see here and here). Continue reading →

Watch Your Language: Not “Everyone” Is Corrupt–Anywhere.

Posted on by
10

I’ve noticed something about the way many people (including me) sometimes describe the severity of the corruption problem in many parts of the world: When calling attention to the problem of widespread, systemic corruption, it’s not uncommon to hear people say—usually in casual conversation, occasionally in more formal presentations—that in this or that country, or this or that government or department, “everyone” is corrupt, or “everybody” takes bribes, or similar. I’m sure I’ve used this or similar language myself, without even thinking about it. And I understand that when most people say things like “everyone in [X] is corrupt,” they don’t mean that literally. Yet I find myself increasingly bothered by statements like this, for several reasons: Continue reading →

Artful Transactions: Corruption in the Market for Fine Arts and Antiques

Posted on by
2

The fascination surrounding art theft and forgery has long been the subject of much exploration. Only more recently, however, has the art market come under increased scrutiny regarding its connection to money laundering and corruption. It’s not just that stolen artworks often end up in the hands of criminals: even the market for non-stolen art is especially vulnerable to money laundering and corruption. With more banks cracking down on illicit activities, art has become an “efficient instrument for hiding cash.” As an article in the New York Times observed, no business seems “more custom-made for money laundering, with million-dollar sales conducted in secrecy and with virtually no oversight.”

Considering the attention paid by anticorruption and anti-money laundering activists to the role of the real estate market and the market for other luxury goods to facilitate money laundering and bribery, it is perhaps a bit surprising that there hasn’t been more attention to the art market—which is perhaps even more deserving of scrutiny. Continue reading →

Anticorruption Bibliography–August 2016 Update

Posted on by
1

An updated version of my anticorruption bibliography is available from my faculty webpage. A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here. As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

When Lunch is a Bribe: American and Korean Law Compared

Posted on by
3

It is the rare businessperson or lobbyist who takes a politician or bureaucrat they barely know to lunch just for the pleasure of their company.  Lunch-buyers may enjoy the food (particularly if the money comes out a corporate pocket) and not all politicians and bureaucrats are self-centered bores.  But face it: the main reason bureaucrats and politicians world-wide are wined and dined by people they hardly know is because they are in positions of power and the meal-buyers want to influence them — perhaps to persuade them to purchase the lunch-buyer’s product for their ministries, maybe to change their minds about pending legislation.  Yet as obvious as the reason for picking up a lunch the tab is, in the Republic of Korea, and many American jurisdictions as well, on its face the law provides that if lunch-buyers admit why they paid for lunch, they and their luncheon companion go to jail.

That despite these laws Seoul’s upscale restaurants and their counterparts in many American state capitols continue to do a brisk lunchtime business suggests many lunch-buying businesspersons and lobbyists and their government guests regularly deny the obvious.  It would be one thing if lawmakers had intended to turn this group into liars and hypocrites, but they did not.  It is instead an unintended consequence of laws actually meant to permit public servants to take lunch with those having business with them. Continue reading →

Guest Post: The U4 Proxy Challenge and the Search for New Corruption Indicators

Posted on by
4

Osmund Grøholt, a research assistant at the Chr. Michelsen Institute and the U4 Anti-Corruption Resource Centre, contributes the following guest post:

One of the major challenges that the development community faces in promoting effective anticorruption reform efforts is the difficulty of measuring progress. This challenge has become all the more pressing in light of the explicit inclusion of anticorruption targets as part of the Sustainable Development Goals. Unfortunately, many of the most widely-used national-level corruption perception indexes, such as the Transparency International Corruption Perceptions Index and the Worldwide Governance Indicators control-of-corruption index, are not suitable proxies for measuring anticorruption reform effectiveness.

To help address this challenge, the U4 Anti-Corruption Resource Centre is announcing its second “Proxy Challenge Competition.” The Proxy Challenge Competition invites researchers and practitioners to submit proposals for indicators that can help show the direction of change and the progress of reform efforts, rather than measuring the quantity or volume of corruption per se. Ideally, the proxy indicators should be reliable, intuitive, accessible, and cost-effective.

The proposed proxies will be evaluated by a panel of experienced anticorruption practitioners and academics, and the individuals who submit the two best submissions will be invited to present their proposed proxies at a special session at the International Anti-Corruption Conference in Panama (Dec. 1st-4th, 2016), with travel, hotel, and conference registration expenses covered. In addition, the UK’s Department for International Development (DFID) will work with the proposal authors to test the relevance and the validity of the proposed indicators, including financial support for a policy paper on the proposed proxy indicators and, if appropriate, developing a plan for testing the proxy indicator for actual reporting in selected countries.

Proposals of no more than 700 words should be submitted to proxychallenge@u4.no by September 1st, 2016. The submissions should:

  • Clearly define the proposed proxy indicator, and explain why and how this indicator reflects changes in corrupt behavior;
  • Explain how the indicator can be combined with other indicators to obtain a better measurement of overall anticorruption progress, including how the proxy indicator would be useful for different agents (e.g., aid agencies, governments, civil society) for purposes of monitoring and reporting;
  • Comment on the strengths and weaknesses of the proxy indicator, including how they differ with shifting national contexts.
  • Present ideas for how to test the validity of the proxy indicator.

More information on the Proxy Challenge Competition, including a complete list of requirements, can be found here. Additional background reading, including material from the first Proxy Challenge Competition (held in 2013-2014) can be found here and here.

We look forward to your submissions!