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 →

Equity Crowdfunding: A (Partial) Corruption Solution for SMEs

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One of the most notorious phenomena in international development is the so-called “missing middle” problem: the scarcity and under-productivity of small and medium sized enterprises (SMEs) in developing countries. Around the world, SMEs can be a leading source of employment and an important driver of innovation. There is a strong positive correlation between the existence of a robust SME sector and high per-capita GDP. Yet in far too many countries, the potential of the SME sector is not being realized.

One cause of SME sector underdevelopment in developing countries is the inability of SMEs to access start-up capital and financing, which can be the “single most robust determinant of firm growth.” SMEs in developing communities face substantial challenges accessing capital, and as a result are often unable to scale or form in the first place. And corruption plays a central role in preventing access to finance among SMEs—by discouraging foreign direct investment, distorting the banking sector, and increasing the costs of equity capital. While corruption poses a significant problem for businesses in many developing countries, SMEs bear the brunt of the harm. Indeed, 70% of SMEs in the developing world cite corruption as a major barrier to their operations.

In the spirit of technological solutions to work around the barriers and distortions created by endemic corruption, equity crowdfunding is emerging as at least a partial solution for SMEs that require capital but are unable to get it because of corruption. Continue reading →

Anticorruption Bibliography–June 2016 Update

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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.

Corruption in Health Aid: Escaping the Scandal Cycle

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William Savedoff, Amanda Glassman and Janeen Madan of the Center for Global Development, a Washington-based development policy think tank, originally wrote this post for CGD.  It is reprinted here with permission.

Health aid pays for life-saving medicines, products, and services in the poorest countries in the world. Funding for such uses needs to be smooth and uninterrupted. But when fraud is detected, funds are subject to sudden stops and starts—the result of a sequence of events set off by the scandal cycle in health aid depicted below. We examine this idea and offer ways to escape the cycle in a new CGD policy paper we summarize here.

The Scandal Cycle

 

To understand the scandal cycle, we looked at four cases of fraud and response involving the World Bank in India, USAID in Afghanistan, the Global Fund in Mali, Djibouti and Mauritania, and European donors in Zambia. While corruption is discovered in different ways, scandals tend to erupt when the press publicizes it or a funder reacts strongly. Once allegations are in the public eye, funders typically react by suspending aid. Then, they work with recipients to create action plans for improving financial management systems, and eventually resume funding.

This scandal cycle is, unfortunately, all too common. In May, the Global Fund published an investigation that tracked down $3.8 million in fraudulent expenditures at Nigeria’s Department of Health Planning, Research & Statistics. The Fund’s executive director issued a statement reaffirming the Fund’s “zero tolerance of corruption” policy, underscoring that the Fund had frozen disbursements to several Nigerian agencies, and calling for reforms to government control measures.

As with the cases we analyzed in our paper, the focus on fraud often comes at the expense of considering the scale of corruption and the impact of disruption on health programs. While $3.8 million is no small number, it represents less than one percent of the $889 million in grants to Nigeria that the Global Fund audited in a companion report on the Wamboo.org project. Furthermore, the impact of international support on improving health has been rather large; the Global Fund’s own statement indicates that international support has helped Nigeria reduce deaths from malaria by 62 percent since 2000.

Halting disbursements to health programs can have serious consequences for service delivery, health outcomes, and institutional development. In light of the scale of fraud and the potential health impact, is suspending aid an effective response? And without information on health impact, how would we know?

We argue that funders may be able to escape the scandal cycle—and reduce such disruptions—by paying greater attention to information on program achievements. Currently, funders pay a lot of attention to procedural issues. For example, a 2013 report from the Special Inspector General for Afghanistan Reconstruction (SIGAR) documented weak accounting systems at the Afghan Ministry of Health. Even though the report had no direct evidence of fraud and the health program was successfully delivering services, SIGAR recommended USAID suspend the program.

By contrast, the World Bank’s 2008 Detailed Implementation Review of the Indian health sector not only included evidence of procedural failures, such as bid rigging, but also documented results failures, like continuing high malaria rates and inoperative hospitals. If the World Bank and India had reported these results failures earlier, the cases where corruption was big enough to affect programs would have come to light much sooner.

We think results on service delivery, population health, and institutional development are the key piece of information that could change the dynamics of the scandal cycle. This kind of information can help funders communicate more effectively about why they are deciding to suspend or continue aid, set appropriate standards for when aid should be halted, and establish new funding mechanisms that make it more difficult to divert funds.

We recommend the following three steps to improve funder response:

  1. Communicate using results. When a scandal erupts, communicating the funder’s actions to control or prevent corruption to stakeholders, the media, and the broader public is important. But emphasizing whether health aid programs are achieving intended results is also an essential component of the communications strategy. If a program is achieving results, stakeholders and constituents would better understand a funder’s decision not to suspend aid when a scandal erupts (while investigating abuse and working with the recipient to address the problem).
  2. Differentiate responses by results. In addition to responding to corruption allegations (which typically come from whistleblowers), tracking program results could help funders detect corruption. If a program is falling short of achieving results, corruption might be a contributing factor and an investigation could help determine whether and how much. Moreover, results data would allow funders to determine whether corruption is—or is not—hampering program implementation, and to recalibrate anti-corruption controls accordingly.
  3. Disburse in proportion to results. Where feasible, paying for results in health could help ensure that funds are only paid out when results are achieved. This approach makes it harder to divert funds because payments only occur after the program’s impact is measured. In programs that pay for results, dishonest people can only skim off funds if they have been very efficient at generating impact. In practice, they are likely to simply set their sights elsewhere.

The Scandal Cycle

The Global Fund’s recent statement recognizes the importance of communicating the results of its health grants to Nigeria, but it doesn’t address whether it is helpful to suspend aid over a relatively small amount of fraud or lack of supporting documentation. Our paper encourages funders to incorporate information about program results into their risk management strategies so they can communicate better, detect corruption sooner, and make more considered choices about creating or responding to scandals.

Continue reading →

Victim-Compensation Arguments Cut Both Ways

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In my last post, I imagined what a frustrated U.S. official might have to say about the ever-increasing drumbeat of demands for the United States to “return” (that is, transfer) the “proceeds of crime” (that is, the fines collected from corporate defendants in Foreign Corrupt Practices Act (FCPA) cases) to the “victim countries” (that is, the governments whose officials took the bribes that gave rise to the FCPA violations). My imaginary rant was deliberately over-the-top, intended to be provocative and to stir up some more honest debate on this topic by cutting through the circumspection and diplomatic niceties that usually accompany pushback against the “give the settlement money to the victim countries” position. In this post, I want to continue on the same general topic, and in the same provocateur’s spirit, by asking the following question:

When (or if) demand-side countries start collecting serious fines against bribe-taking public officials and/or bribe-paying companies, does the logic of compensating “victims” dictate that these countries transfer some of the money they recover to the United States?

At the risk of seeming totally bonkers, I’m going to assert that the answer might well be yes if one accepts the logic for making transfer payments in the other direction (from the U.S. government to the governments of the countries whose officials took the bribes) in FCPA cases. Here’s the argument: Continue reading →

A Role for the Courts in Limiting Philippine Political Dynasties

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In an earlier post I wrote about Philippine political dynasties, I argued for the adoption of an anti-dynasty law that would bring into effect Article II, Section 26 of the 1987 Philippine Constitution, which states that “[t]he State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.” Since the Philippines gained its independence, political dynasties have dominated national and local government—70% of the last Congress, for example, belonged to a political dynasty. Because these families have maintained an effective oligarchy over the country for decades, they can easily abuse their discretion and commit corrupt acts without consequence.

While the Framers of the 1987 Constitution recognized the danger these elite families posed to fair governance and their propensity to engage in corruption, the Supreme Court has found that the constitutional ban on dynasties is not a self-executing provision. In May 2014, for the first time in history, an anti-dynasty bill made it out of committee and was sponsored before the House plenary. In his final State of the Nation Address, President Noynoy Aquino urged Congress to finally pass an anti-dynasty law. Politicians in Congress, however, have since blocked efforts to pass such a law. By October 2015, the Senate President publicly announced that no anti-dynasty law would be approved before the May 2016 election. Despite my hope that the recent bill would result in a new law at last, this outcome is not surprising. Political dynasties have controlled the majority of Congress for decades, and numerous politicians seeking office in this year’s election would have been prohibited from running if the law had passed.

Now the results of the May election are in, it looks as though Congress will continue to be dominated by dynastic politicians. President-elect Rodrigo Duterte’s stance on political dynasties is currently unclear, although he himself belongs to a political dynasty. Given this, legislative action may simply be out of reach for the time being. One interesting question is whether the courts could intervene to bring the constitutional ban into effect. Doing so would be a radical departure from past practice, and would require rethinking certain core judicial doctrines, but might be nonetheless be legitimate under the circumstances. Continue reading →

TNI’s Gold Mine: Corruption and Military-Owned Businesses in Indonesia

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The Grasberg Mine, located close to the highest mountain in West Papua, Indonesia, is the world’s largest gold mine and third-largest copper mine. The mine, owned by the corporation Freeport-McMoRan Copper & Gold, has been the site of strings of grave human rights abuses, linked to Indonesia’s own National Armed Forces (Tentara National Indonesia/TNI). TNI’s presence in the territory is ostensibly to protect the mine, and Freeport’s Indonesian subsidiary acknowledges having made payments of as much as US$4.7 million in 2001 and US$5.6 million in 2002 for such government-provided security. A report by Global Witness, however, revealed numerous other payments ranging from US$200 to US$60,000 that Freeport Indonesia allegedly made to individual military officers.

The TNI’s sale of security services to companies like Freeport is only one of the many business ventures conducted by the TNI and its officers. As Human Rights Watch has reported, the Indonesian military has been supplementing its income through both its formally established companies, and through informal and often illicit businesses such as black market dealing. Moreover, the military’s business activities (both lawful and unlawful) are largely shielded from public scrutiny: budgeting for military purposes is generally kept secret, and TNI members generally refuse to answer questions about institutional spending.

Military-owned business in Indonesia are problematic, not only because this private-sector activity impedes military professionalism and distorts the function of the military, but also because it also contributes to crime, human rights abuses, and especially corruption. This problem is greatly compounded by the fact that TNI officers generally enjoy immunity from corruption charges brought by civilian institutions. In fact, the Transparency International’s Defense and Security Program has deemed Indonesia one of the countries most prone to corruption in its defense and security institutions. It is therefore appalling that this issue has not been addressed more seriously by the Indonesian government. Although a 2004 law mandated the transfer of control over TNI businesses to the civilian government within five years, the law did not clearly specify which types of business activities were covered, and this legal loophole enabled the TNI to preserve many of its moneymaking ventures, including TNI’s infamous security services—to say nothing of already-illegal criminal enterprises and illicit corporations. Moreover, despite the five-year timetable in the law, the government has been notably reluctant to enforce the transfer of ownership, making repeated excuses alluding vaguely to the need for the TNI to compensate for the lack of budgeting for security purposes. As a result, despite some efforts to reform the way the TNI is allowed to handle its businesses, military-owned businesses in Indonesia continues to flourish, with the Indonesian people of Indonesia having to pay the price.

The government’s weak response towards the military’s non-compliance with the 2004 law is merely one of the many indicators of how impervious the TNI’s power and seeming impunity. There are factors that contribute to this impunity, along with the corresponding corruption and abuse of power in the operations of military-owned businesses: Continue reading →

Guest Post: Corruption Among Development NGOs, Part 3–The Need for Collective Action by Funding Agencies

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Roger Henke, Chairman of the Board of the Southeast Asia Development Program (SADP), a development grantmaker based in Cambodia, contributes the following guest post (the third in a three-part series):

Previous posts on development NGO corruption described a survey tool and its results in Cambodia and the conundrum of using the upward accountability relationship between local NGOs (LNGOs) and the grantmakers funding them for remedial action. The analysis of the report which underlies much of those contributions includes another foundational premise: Given the systemic functioning of Cambodia’s (and other countries’) LNGO sectors, anticorruption action to hold these LNGOs to account needs to be collective in order to be effective.

The characterization of the sector as “systemic” is meant to capture fact that nearly all LNGOs are funded by more than one, often five or more, grantmakers, while these grantmakers in turn, each fund many (sometimes more than 25) LNGO partners. To see why this matters for upward accountability, suppose for the moment that a given Grantmaker X takes seriously its responsibilities to diligently oversee LNGO Partner Y, and suppose further that Grantmaker X uncovers a problem. What happens next? The best case scenario is that the LNGO acknowledges the problem and fixes it, while the worst-case scenario is that both the LNGO and the grantmaker ignore the problem. Both of those happen sometimes. But the more common outcome is this: The LNGO fails to deal with the problem, and eventually Grantmaker X decides to stop funding it. But this affects LNGO Y only temporarily, because it has (or can find) other funders, many of which may not exercise the same degree of diligence as Grantmaker X. So nothing much changes. Even when Grantmaker X communicates with other co-funders about the problems, and more of them decide to question their support of LNGO Y, it takes a fair level of coordinated grantmaker disinvestment to put an LNGO out of business. That level of coordination is rare even in cases of obvious crisis, and absent during more mundane times.

What is needed, then, is more collective action. Many grantmaker staffs would agree with this in principle, but the dominant response is generally not action but resignation, dressed up as “realism”: “Why waste time on beating a dead horse? Even if local grantmaker offices were all willing to collaborate, aligning the diverse requirements regarding reporting, auditing, etc. of all the headquarters….forget it.” I reject this defeatism. One rarely knows that something won’t work until one tries, and my experience in Cambodia is that practical pilots are very rare. So, what would proper collective diligence regarding financial management imply in practice? Continue reading →

Fraud and Corruption Risks in Procurement: A Thumbnail Sketch

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Public procurement is the government activity perhaps most vulnerable to fraud and corruption.  Not only are the sums involved enormous, $9.5 trillion a year by one estimate, but at every point in the process decision-makers enjoy great discretion.  They must first decide if government needs to buy a good or service.  If the decision is to make a purchase, government personnel must determine how government should make it: through a sole source contract or by competitive bid.  If they choose the former, they must decide from whom to buy; if the decision is to use competitive bidding, decisions about where to advertise the request, for how long, what personnel should select the winning bidder, and what criteria they should use are also required.

Because there are so many places where fraud and corruption can creep into the process, it is hardly surprising that the internet is brimming with books, articles, and brochures of all sorts on how to combat fraud and corruption at each stage in the procurement cycle, and indeed a Google search for material on “government procurement corruption” returns 15 million documents in less than half a second.  This wealth of material is itself part of the problem.  Those tasked to participate in a procurement who want a summary of what to watch for may be so overwhelmed by what’s available that they give up their search and hope their “gut” or a better trained colleague will pick up any irregularity.

For those looking for a short description of the areas where fraud and corruption is most likely to seep into the procurement cycle, a place to begin a search for more detailed material on a particular point, I offer a thumbnail sketch of procurement risks.  I thank colleagues at the Millennium Challenge Corporation and elsewhere who have helped in compiling and simplifying the list.  Suggestions for areas missed — or better (but still succinct!) ways to express the risks — warmly welcomed.   Continue reading →

What Might U.S. Officials Think of Demands that the U.S. Transfer FCPA Settlement Proceeds to Demand-Side Governments? An Imaginary Rant

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As the United States continues to settle Foreign Corrupt Practices Act (FCPA) cases with corporate defendants for large sums, the issue of whether the U.S. and other “supply-side” enforcers should transfer a portion of these settlement proceeds to the countries where the bribery took place has continued to attract attention and discussion. (This question is often framed as whether the U.S. should “return” some of these settlement proceeds to the “victim countries,” but that formulation is highly misleading, both because criminal fines were never the property of another government, and so cannot be “returned,” and because in many cases referring to these countries as “victims” is problematic, to put it mildly. So I’ll refer to this as “transferring settlement proceeds to demand-side countries.”) The push for transferring settlement proceeds to demand-side countries has gotten a bit more traction over the past year, and has become something of a talking point for certain demand-side governments, especially those in Africa, along with supporting NGOs. So, for example, a Nigeria-sponsored resolution at last year’s UN Convention Against Corruption Conference of States Parties (Resolution 6/2) called for “urgent attention” to the (utterly bogus and misleading) statistic that although US$6.2 billion has been recovered through settlements in foreign bribery cases, only 3% of this amount “has been returned to States whose officials were bribed and where corrupt transactions took place, which is a key aim of chapter V of the contention,” and further called on states that use settlements to conclude foreign bribery cases to “give due consideration to the involvement of the jurisdictions … where foreign officials were bribed.” (The original proposed language was far stronger, “noting with concern the prevailing narrow interpretation of the terms ‘proceeds of crime’ in settlements … that excludes … fines in order to avoid such proceeds from being returned to States and, by so doing, using settlements to create an artificial category of victims of corruption, thereby reducing the potency of chapter V of the Convention.”) One sees this push in several of the country statements coming out of last month’s London Anticorruption Summit, especially those of Nigeria and Tanzania.

Unsurprisingly, the United States has resisted these calls. Generally, U.S. officials have done so (at least in public) tactfully and diplomatically, emphasizing the U.S. government’s commitment to helping the victims of cooperation, its willingness to work with other countries to cooperate in ongoing investigations and improve the mutual legal assistance process, etc. But I’m beginning to sense a growing undercurrent of frustration on the U.S. side, as an increasing number of demand-side countries and NGOs are making the call for transfer of settlement proceeds to demand-side governments (which, again, they often characterize as “returning assets to victim countries”) a central theme of their presentations and diplomatic efforts. (And perhaps, I should acknowledge, some of the frustration I’m sensing is a reflection of my own skepticism – see here, here, and here.) Now, when I say I sense growing frustration or irritation on the U.S. side, I should be clear that I’m speculating. Though I’ve met a few officials from the U.S. Departments of State and Justice, and Treasury who work on corruption issues, I’m certainly no insider, and nothing in the rest of this post should be interpreted is reflecting any actual conversations or statements from current or former U.S. government officials, because it doesn’t. Nor should this be taken as fully reflecting my own views, even though part of what I’m going to write below is generated by introspection.

With those caveats, I’d like to try to imagine what’s going on in the heads of U.S. government officials as they smile politely while listening to the sorts of criticisms I noted above, and when they express, in measured language, their reservations about the proposals that the U.S. transfer FCPA settlement proceeds to demand-side countries. Just for fun, and to be a bit provocative, I’ll present this as a kind of unhinged rant – the sort of thing I imagine that a hypothetical U.S. official’s id might be screaming internally, behind the polite smiles and diplomatic language imposed by her superego. The imaginary rant, in response to demands that the U.S. transfer FCPA settlement proceeds to demand-side countries, might run something like this: Continue reading →