Bribery in the Boardroom: Implications for Internal Reporting Programs

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Early last month, the OECD released its first Foreign Bribery Report. According to Angel Gurria, the organization’s Secretary-General, the report “endeavors to measure, and to describe, transnational corruption based on data from the 427 foreign bribery cases that have been concluded since the entry into force of the OECD Anti-Bribery Convention in 1999.” The report as a whole is quite interesting, but I would like to hone in on the OECD’s findings regarding who engages in bribery, and how this should change how we approach arguments on whistleblower internal reporting requirements.

The report found that, contrary to popular belief, in the majority of cases senior management were aware of or endorsed the payment of whatever bribe occurred (in 41% of the cases senior management was implicated, in 12% even the highest level executives were aware of the bribe being paid). As the report notes, this “debunk[s] the “rogue employee” myth,” and this, I would argue, calls into question internal reporting requirements as a means of combating foreign bribery. Continue reading →

Trust in Government and Public Health: Corruption and Ebola Revisited

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A little while back I did a short post expressing skepticism about some claims that corruption was a significant contributor to the Ebola outbreak in West Africa. I agree that insofar as corruption diverts resources from public health and sanitation, or leads to undersupply of necessary medicines and supplies, it is likely to worsen both the frequency and magnitude of public health problems. But I was more skeptical that there was any direct evidence that the admittedly rampant corruption in places like Liberia, Sierra Leone, and Nigeria was a major contributor to that particular public health crisis.

Last month I was fortunate enough to moderate a panel on corruption and public health at the World Bank’s International Corruption Hunters Alliance meeting, and the presentations at that panel have altered my thinking about this issue somewhat. More generally, several of the presenters from countries hit hard by Ebola — including Commissioner Joseph Kamara of Sierra Leone’s Anti-Corruption Commission and Commissioner Aba Hamilton-Dolo of the Liberian Anti-Corruption Commission — made a convincing case that corruption has been, if not a primary cause, then at least a significant contributor to the extent and severity of the Ebola outbreak. Of course, there is still relatively little direct evidence, and it’s reasonable to wonder whether commissioners on anti-corruption commissions may be likely to overestimate the significance of their particular issue area for the most pressing immediate crisis facing their nations. Nonetheless, they did make a plausible case that corruption, while perhaps not a direct contributor to the outbreak, has significantly impeded the response.

On this point, Commissioner Hamilton-Dolo emphasized an important argument that I hadn’t really paid enough attention to, even though I quoted Professor Taryn Vian making essentially the same point in my earlier post: in addition to the squandering of public health resources, corruption may also impede the effective response to public health crises by undermining trust in government. The argument, as I understand it, goes something like this: Continue reading →

Why Context Matters: The Failure of the Ugandan Revenue Authority to Curb Corruption

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In his 2013 volume explaining why donor-supported reforms often go awry in developing states, Kennedy School Professor Matt Andrews lays the blame on the failure to appreciate how political imperatives, patronage networks, cultural practices, and other elements of local context affect the way reforms are implemented.  While Andrews offers telling examples of how ignorance of context doomed reforms in Argentina and Malawi, the failure to stamp out corruption in Uganda’s revenue collection service provides an even more vivid illustration of the way the very different context in a developing state can cause “best practice” reforms to fail.  The analysis is taken from Odd-Helge Fjeldstad’s classic account of the attempt to reform tax collection in Uganda, “Corruption in Tax Administration: Lessons from Institutional Reforms in Uganda,” chapter 17 of Susan Rose-Ackerman’s 2006 edited volume, International Handbook on the Economics of Corruption.

In 1991 revenue from taxes and customs duties in Uganda were seven percent of GDP, an astonishing low figure even on a continent where tax evasion was the norm.  Under pressure from the IMF, the World Bank, and other donors the then recently installed government of Yoweri Museveni took decisive action.  Following what was then considered best practice for boosting revenues and cutting corruption in a revenue service, the government made the revenue department of the Ministry of Finance into an autonomous agency.  Independent agency status allowed the Uganda Revenue Authority to implement a number of reforms to reduce corruption.  Salaries were raised above civil service levels and strictures on firing non-performing workers removed.  As a new agency, all employees were considered new hires and had to prove themselves during a probationary period; as a result almost 250, or 15 percent, of the old revenue department staff were weeded out.  In addition, “clean” expatriates were hired into senior management positions, and measures were taken to improve morale: offices were upgraded, working conditions improved, and training provided.  All in all, the Uganda Revenue Authority was considered a model for how to create an efficient, non-corruption revenue collection agency.

During the first years of its existence, the authority’s performance suggested these reforms were succeeding.  Revenue collection as a percentage of GDP improved and perceptions of corruption declined.  These early indicators of success, however, soon began to decline.  Forty-three percent of businesses surveyed in 1998 reported paying a bribe to a Uganda Revenue Authority employee; in March 2000 President Museveni termed the authority a “den of thieves,” and in 2003 its former head listed corruption as “problem number one” in the organization.  A Commission of Inquiry of C corruption in the Uganda Revenue Authority was appointed in 2002, and although its report was never released, leaks suggest the commission found massive corruption in the ranks. Continue reading →

Guest Post: Fighting Corporate Corruption in Thailand, Part Two — Private Initiatives

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Karin Zarifi, an independent consultant to the Securities and Exchange Commission Thailand, contributes the following post (the second in a two-part series on combating corporate corruption among Thai public companies):

In my last post, I discussed how the Thai Securities and Exchange Commission (SEC) was undertaking innovative measures, in conjunction with private sector initiatives, to fight corruption and encourage good corporate governance in Thai public companies. One of the SEC’s most important partners in its efforts is the Stock Exchange of Thailand (SET), on which approximately 600 companies are listed. The SET and the SEC have been promoting their own and each other’s initiatives, as well as those of private sector organizations like the Thai Institute of Directors (IOD) and the Thaipat Institute, in ways that are encouraging, and seem to be helping Thailand to become a corporate sustainability leader among Association of Southeast Asian Nations (ASEAN) member countries.

The role of the SET in fighting corruption cannot be overlooked. Stock exchanges are uniquely positioned to use their listing and disclosure requirements to encourage sustainable practices, including anticorruption, by listed companies and allow consideration by investors. The role of stock exchanges in wealthy countries — most notably the New York Stock Exchange — in imposing ethics and disclosure requirements on listed companies is already well-known. The SET’s recent initiatives demonstrate that stock exchanges in developing countries can also play this role. Although a stock exchange’s anticorruption initiatives cannot substitute for appropriate action by government regulators, they are a vital complement to government efforts to prohibit bribery and corruption. Continue reading →

Is China’s Anticorruption Enforcement Implicitly Protectionist?

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When a Chinese court fined GlaxoSmithKline (GSK) US$490 million last year for bribing Chinese physicians and hospital administrators, Western firms doing business in China snapped to attention. Indeed, the GSK action is likely only the tip of the iceberg, particularly given a December 2012 official legal interpretation of the Chinese Criminal Law by the Supreme People’s Court and the Supreme People’s Procuratorate that departed from the prior emphasis on bribe recipients and redirected attention to bribe payers. Thus far, multinational corporations – including GSK, Danone, and Volkswagen – have figured prominently in President Xi Jinping’s anticorruption campaign, leading many commentators to argue that protectionism is at play (see here and here). To put the point bluntly, the worry is that Chinese enforcers will go after foreign firms for conduct that is equally if not more common among domestic Chinese firms, and will do so largely to protect those domestic firms from foreign competition.

I have to admit, when I sat down to investigate the claims of protectionist bias, I more or less assumed the ulterior motives in Chinese enforcement. The typical refrain among my American friends who have lived and worked in China is: “Of course enforcers intentionally favor domestic companies. Everything is politically motivated.” That may be true. But what I found – or didn’t find – actually caused me to lean in the opposite direction: We don’t have enough evidence to substantiate claims of biased anticorruption enforcement in China. Continue reading →

Removing Barriers to Private Actions Against Corruption by Liberalizing Standing Doctrine

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Although most countries have traditionally relied on public bodies to enforce anticorruption laws, frustration with the ineffectiveness of public enforcement has led a growing number of activists and scholars to champion private lawsuits as an additional tool in the anticorruption arsenal (see, for example, here and here). Not only can private enforcement supplement government enforcement, but (as I have discussed previously) private enforcement can push public enforcers to do their job more scrupulously. However, in many jurisdictions private actions to enforce anticorruption laws face a daunting obstacle: the doctrine of standing (known in some jurisdictions by its Latin name, locus standi). The difficulty is that most corruption cases do not have an identifiable victim, or an aggrieved person in its traditional sense. For this reason, in many jurisdictions, those parties (often civil society NGOs) attempting to bring private suits against corrupt actors may be deemed not to have the requisite standing.

The question, then, is whether it is possible and desirable to adopt a broader conception of standing, one that would entitle citizens or NGOs to initiate actions against corrupt actors, even if the complainants cannot establish that they were personally and directly injured by the alleged corrupt conduct. Proponents of a restrictive interpretation of standing doctrine tend to argue that a more expansive notion of standing could inundate the courts with weak cases, including cases brought by vexatious litigants without a genuine interest in the underlying allegations. But these concerns are exaggerated. It is quite possible, as several jurisdictions have already demonstrated, to liberalize standing doctrine to empower private anticorruption plaintiffs without opening the floodgates of meritless litigation. Moreover, the legitimate concerns about abuse of the judicial process can be addressed in other ways. Continue reading →

Anticorruption Bibliography — January 2015 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.

National Anticorruption Strategies: A Request for Assistance

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GAB editor-in-chief Matthew Stephenson and I have been asked by the United Nations Office on Drugs and Crime, which serves as the Secretariat to UNCAC’s Conference of States Parties, to write a guide to support the development and implementation of effective and sustainable national anti-corruption strategies.  The guide will contain an outline of the key stages in the development of a national strategy, an explanation of the role different stakeholders can play in developing it, models for implementing a strategy, and a discussion the methods for monitoring and evaluating its implementation. Good practices and success stories at all stages of the process — development, implementation, monitoring and reporting — will be highlighted.

We are in the early stages of collecting information and would welcome readers help in identifying useful materials: copies of national strategies, evaluations of their effectiveness, and so forth.  We will of course build upon the fine analysis of Asian countries’ experiences with national strategies that the UNDP Bangkok office released in December, which I wrote about here.  We also have the very useful policy notes posted on the websites of U4 and TI.

To date we have identified 60 plus the countries that have or have had a national anticorruption strategy.  They are listed below.  Additions to this list would also be welcome.

Afghanistan, Albania, Armenia, Australia, Azerbaijan, Bhutan, Bosnia And Herzegovina, Bulgaria, China, Croatia, Czech Republic, Egypt, Estonia, Ethiopia, Georgia, Ghana, Greece, Haiti, India, Indonesia, Iraq, Jamaica, Jordan, Kenya, Kosovo, Kuwait, Kyrgyz Republic, Latvia, Lithuania, Macedonia, Malawi, Malaysia, Maldives, Moldova, Mongolia, Montenegro, Mozambique, Namibia, Nepal, Pakistan, Palestine, Papua New Guinea, Philippines, Poland, Romania, Romania, Russia, Saudi Arabia, Serbia, Sierra Leone, South Africa, Southern Sudan, Tajikistan, Tanzania, Thailand, Uganda, UK, Ukraine, Vietnam

Anything from newspaper stories to policy papers to academic analyses would be appreciated.  Thanks to Google translate, we will be happy to receive material in any language. You can post suggestions either as a comment on this post, or send your input using the contact page. Thanks in advance!

Guest Post: Fighting Corporate Corruption in Thailand, Part One — Securities Regulation

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Karin Zarifi, an independent consultant to the Securities and Exchange Commission Thailand, contributes the following post (the first in a two-part series on combating corporate corruption among Thai public companies):

In Thailand, despite increased focus on anticorruption, corporate governance and Corporate Social Responsibility (CSR) improvements in the private sector (see, e.g., here and here), the Thai business community does not seem convinced that anticorruption is in its interest, at least short-term. Only last April, companies listed on the Stock Exchange of Thailand (SET) were telling the Thai Securities and Exchange Commission (SEC) that they were unwilling to stay away from paying “tea money” (that is, bribes), for fear of losing out to competitors. Yet the last nine months have seen considerable progress on this front.

Some of the progress has been driven by private sector initiatives, including initiatives spearheaded by the SET. I will discuss these in my next post. But much of the progress has been driven by the Thai SEC. As Jeena Kim pointed out in a recent post on this blog (in the context of South Korea) securities regulators are well-positioned — and often better-positioned than public prosecutors — to take effective action against corporate corruption. But whereas Ms. Kim highlighted the Korean securities regulator’s ability to enforce South Korea’s foreign anti-bribery laws, the Thai example illustrates how securities regulators can encourage the development of a culture of compliance, good corporate governance, and corporate social responsibility more generally, using tools beyond simply enforcing the securities laws. Continue reading →

Rescission of Contracts and Revocation of Licenses As Means to Combat Corruption

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Article 34 of the UN Convention Against Corruption (UNCAC) generally requires that each State Party “take measures … to address the consequences of corruption.” In recognition of the fact that government contracts and licensing processes have been among the areas most prone to corruption and bribery–and of the fact that the threat of criminal punishment may not be a sufficient or even viable deterrent to such corruption–UNCAC Article 34 further declares that “States Parties may consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument or take any other remedial action.” Although that second sentence of Article 34 is not mandatory, State Parties–particularly demand-side countries with an unfortunate reputation for corruption in government contracting (such as Kenya, Guinea, Indonesia and Philippines) should adopt that principle into their national laws.

Law providing for the nullification of contracts or concessions procured through corruption would be a strong deterrent to bribe-paying by firms. Although such bribery is already illegal, in some cases criminal punishments are simply insufficient to deter corrupt practices conducted in demand-side countries. Often the threat of sanctions is low, and even though some companies have been hit with substantial sanctions, this loss has been mitigated by the profits acquired by the operation of the tainted contract or license. And a company might think twice before acceding to a bribe demand from a lower-level public official (or even a high-level official) if the company knows that, by paying the bribe, they may be putting the whole contract in jeopardy if the government later decides it wants to reneg on the deal. Moreover, if a demand-side country were to adopt a law that allows for nullification of any government contract or concession procured through corruption, it would send strong signals to that international community that this country will no longer tolerate these corrupt practices. Continue reading →