Guest Post: New OECD Anti-Bribery Recommendation Introduces Standards on Non-Trial Resolutions

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Today’s guest post is from France Chain, Elisabeth Danon, and Sandrine Hannedouche-Leric, legal analysts at the OECD’s Anti-Corruption Division. The views expressed in this post do not necessarily represent those of the OECD member countries or States Parties to the OECD Anti-Bribery Convention.

The OECD Anti-Bribery Convention, which came into force in 1999 and currently has 44 member states, is intended to combat bribery of foreign public officials in international business transactions. Last month, the OECD Council adopted the 2021 Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions, which includes—among other measures to further enhance the fight against transnational bribery—a section on non-trial resolutions (NTRs). This section, which is based in part on the findings of a 2019 report on NTRs from the OECD’s Working Group on Bribery in International Business Transactions, represents the first time that a multilateral instrument included standards on the use of NTRs to resolve foreign bribery cases.

The Recommendation first calls for Convention member states that have not yet adopted an NTR instrument to consider doing so. (This call follows the Working Group’s finding, in its 2019 report, that in the 27 OECD Convention member states that have developed at least one form of NTR instrument, nearly 80% of foreign bribery cases that have been successfully resolved since the Convention entered into force were resolved via NTR.) The Recommendation also stresses, however, that member states should take measures to ensure that the use of NTRs follows the Convention’s principles of “due process, transparency, and accountability” The Recommendation fleshes this out by advancing eight principles. According to the Recommendation, Convention member states that make use of NTRs should: Continue reading →

Italy: Safe Haven for Bribe Payers?

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That a nation with the third-largest economy in the European Union and the eighth-largest in the world would be countenancing bribery in today’s world seems beyond the pale. Yet an analysis of recent case law and record of convictions shows just that.  Done by the Italian NGO ReCommon and submitted on a confidential basis to the OECD’s Working Group on Bribery, it concludes that it is “nigh on impossible to obtain a conviction in Italy for international corruption.”  

The group’s conclusion rests not only on Italy’s dismal record of convictions of Italian companies and nationals for bribing foreign public officials, but decisions in three recent cases. All raise a virtually insurmountable hurdle to a conviction for bribery. In any case. No matter whether the bribe-taker is an official of a foreign government or of the Italian government. In all three, courts have ruled that to prove bribery, the prosecution must show there was an express agreement to bribe.

In today’s world, just how many businesses send a letter to an official saying “I will pay you X in return for your providing the company Y”? As an American Supreme Court justice observed some 40 years ago, were the law to impose such a requirement, it could be easily frustrated “by knowing winks and nods.” Yet an express agreement to bribe is exactly what Italian judges now demand to convict bribe-takers and payors. Why has the Italian judiciary, historically one of the most renowned in the civil law world, decided to frustrate the prosecution of bribery cases?

Italy’s compliance with the OECD Antibribery Convention will shortly be reviewed by peer nations. It simply cannot be found in compliance so long as its courts require an express agreement to bribe to find defendants guilty. The OECD reviewers should follow ReCommon’s analysis, which in the public interest is revealed here, and condemn the recent turn in Italian law making the nation a safe haven for bribery.

Guest Post: Connecting the Two Worlds of Anticorruption and Human Rights Activism

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Today’s guest post is from Casey Kelso, a human rights and integrity consultant currently serving as Senior Advocacy Officer for Worldwide Initiatives for Grantmaker Support (WINGS), and Servaas Feieretag, an independent consultant on integrity and anticorruption who currently serves as the lead expert on the MATRA for enhancing the efficiency, accountability and transparency of the Judicial Council of North Macedonia .

The link between human rights and anticorruption has been much discussed over the past decade (see, for example, here and here), yet anticorruption activists often do not recognize themselves as human rights defenders, while human rights activists often fail to understand corruption as a human rights issue. In order to highlight the interconnections between the international anticorruption movement and the international human rights movement, the UN’s Special Rapporteur on Human Rights Defenders, Mary Lawlor, has decided that her next report to the Human Rights Council in March 2022 will focus on threats to human rights defenders working directly on anticorruption issues. As she put it to us in a recent interview, “This issue of corruption comes up again and again in my conversations with human rights defenders, whether anticorruption work is the main focus of what they do or not.”

Corruption can cause or facilitate human rights violations in a host of ways. To illustrate with just a few examples: Continue reading →

Anticorruption in Qatar: Policy or Politics?

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Earlier this year, Qatar’s Minister of Finance, Ali Shareef Al Emadi, was arrested on corruption charges. This news came as a veritable bombshell to those who follow the Arab Gulf region. For one thing, Al Emadi is a prominent figure, who was not only the sitting finance minister, but who had previously occupied an impressive list of leadership positions in well-known Qatari institutions, including a board position on the country’s $300 billion sovereign wealth fund, chairman of the board of Qatar Airways, and chairman of the board of Qatar National Bank, the largest lender in the Middle East. Another surprising thing about Al Emadi’s arrest is just how public—and unusually publicized—the arrest was. This contrasts strikingly with how Qatar and other countries in the region typically deal with suspected corruption of high-level officials. In such cases, the investigation is usually kept private and, if the allegations appear to have substance, they are usually resolved through a resignation. In Al Emadi’s case, by contrast, a state-run news agency made a public announcement of the arrest and investigation, and he was removed from his post. 

It has been over six months since Al Emadi’s arrest, and the situation remains shrouded in mystery. Al Emadi has said nothing, and the only statement from the Qatari government came two days after the arrest. (That statement, by the Minister of Foreign Affairs, consisted mainly of the assertions that “no one is above the law” and the “investigation is ongoing.”) This has left news organizations and researchers to speculate about the unusual circumstances of Al Emadi’s arrest (see here, here, here, and here). One possible interpretation, advanced in a Brookings Institution piece published shortly after the arrest, is that Qatar’s unusual action in the Al Emadi case—publicly announcing the arrest of a high-profile figure in a country (and region) where such officials are virtually never prosecuted for corruption—may signal a real shift in Qatar’s policy, one that may be part of a genuine push for better, more honest governance. A former economist at Qatar’s central bank expressed a similarly optimistic interpretation, asserting that the arrest “sends a powerful message to all Qataris about the government’s newfound eagerness to fight corruption.” 

This is of course possible, but we shouldn’t get our hopes up. Al Emadi’s arrest, and the unusual publicity it received, may have less to do with a real shift in the Qatari government’s approach to fighting corruption, and more to do with political calculations.

Continue reading →

The Weaponization of Anticorruption Law: Why Italy’s Legge Severino Must Be Reformed

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Back in 2012, the Italian legislature passed an anticorruption statute known as the Legge Severino. This law institutes a six year prohibition on holding elected office for politicians with felony convictions carrying sentences over two years. If convicted on an “abuse of power” charge, the prohibition on officeholding is extended to eight years. The law, which was enacted in part to effectuate Article Six of the United Nation’s Convention Against Corruption, was hailed at the time as a positive step on the road to a less corrupt Italy. (Famously, this provision initially barred Silvio Berlusconi from office after he was sentenced to four years in prison for tax evasion.) The logic behind passing laws of this sort (which also exist elsewhere) is fairly clear, especially in a country like Italy which has struggled with endemic political corruption: intuitively, those who have abused the public trust by committing serious criminal offenses should not be allowed to hold elected office.

But a recent case in Calabria, involving Domenico “Mimmo” Lucano, the former mayor of the town of Riace, highlights problems with the law—in particular, how the law can be weaponized to take down politicians who are fighting corruption and organized crime. Continue reading →

Defining Corruption: How Readers’ Views Align with Courts and Other Authorities

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There has been a vigorous debate on the blog about the definition of corruption with distinguished academics and practitioners weighing in on what they argue constitutes corrupt behavior by a public official.

Readers will recall that in early November I asked what they thought. I described six cases where a court, ethics agency, or public opinion had decided whether certain conduct was corrupt, and without revealing how the authority ruled, readers were invited to say what they thought. A number did, often with thoughtful explanations supporting their view.

Below is how their answers compare with the authority who made the decision. As the tabulated replies show, readers are far tougher when it comes to ruling conduct corrupt than courts or even the most important court of all, the court of public opinion. The rationale behind the authority’s decision follows. Comments invited.

CaseCN.C.
1. Vanuatu majority government provides MPs positions in return for vote against no confidence measure. Court ruling: NOT CORRUPT34
2. U.S. Senate seat in return for appointment to cabinet. Court ruling: NOT CORRUPT52
3. Oakland Mayor oversees redevelopment funds to neighborhoods that could include his own. Court ruling: NOT CORRUPT (technicality)13
4. Independent New South Wales MP resigns seat in return for job in public service. Public Opinion: CORRUPT51
5. Appointee in newly elected Kentucky government asks for share of fixed commission government pays for insurance. Court ruling: NOT CORRUPT50
6. Canadian PM lobbies national development bank to loan to hotel abutting golf course he has part interest in. Ethics counsellor: NOT CORRUPT40

Continue reading →

New Podcast Episode, Featuring Dan Hough

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A new episode of KickBack: The Global Anticorruption Podcast is now available. In this week’s episode, I interview Professor Dan Hough, Head of the Department of Politics at the University of Sussex, who previously served as the Director of Sussex’s Centre for the Study of Corruption. After starting out discussing how Professor Hough got interested in studying corruption, the bulk of out interview focuses on Professor Hough’s most recent research project focused on integrity and corruption in sports–including not only cheating on the field and in the organization of major sporting events, but more broadly why better understanding threats to integrity in sports can help the anticorruption community better understand important aspects of the fight against corruption in other contexts. You can also find both this episode and an archive of prior episodes at the following locations: KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

Learning from the Collapse of CICIG, MACCIH, and CICIES: What Lessons for the Future?

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Six years ago, the world was celebrating one of the most innovative and promising investigative commissions to curb grand corruption: Guatemala’s International Commission Against Impunity in Guatemala (Comisión Internacional Contra la Impunidad en Guatemala, or CICIG). CICIG was a domestic-international hybrid organization that exposed sixty criminal networks, charged nearly 700 people, and took down high-level officials, including Guatemala’s sitting president, vice president, and head of the public prosecutor’s office  (see here, here, here, and here). CICIG was so successful that it inspired two of Guatemala’s neighbors, El Salvador and Honduras, to create commissions on a similar model: MACCIH in Honduras (created in 2016) and CICIES in El Salvador (created in 2019). The key element setting these commissions apart from traditional anticorruption agencies was their hybrid domestic-international setup. In all three cases, the commissioners were supported by an international body (the UN for CICIG and Office of American States (OAS) for MACCIH and CICIES), and the commissions were led by foreigners. The commissions had ambitious mandates, but also limited powers: They could not prosecute on their own, but rather had to work with the national prosecutor’s office. Initially, MACCIH and CICIES scored a few remarkable victories, taking down a handful of government officials. This fueled optimism that these institutions, together with CICIG, would prove to be a powerful and sustainable anticorruption innovation.

Now, several years later, the bloom is off the rose. None of these commissions are still operating. And the story of their demise is remarkably similar: In each country, the commission’s investigations got too close to the incumbent administration, ultimately leading the president to either terminate the commission’s mandate or let it expire (see here, here, and here). This all-too-familiar story highlights a difficult challenge in fighting corruption effectively, one that is not limited to these special hybrid commissions: The main point of creating independent anticorruption bodies is to make possible the investigation and prosecution of the politically powerful—those who might benefit from de facto impunity if investigations were left to the ordinary institutions of justice—but at the same time, these independent commissions are sustainable only as long as the politically powerful would not find it more expedient to shut them down.

It’s difficult to thread this needle, and I’m reluctant to second-guess the leaders of CICIG, MACCIH, and CICIES regarding their strategic choices. Still, the fates of these commissions suggest a few valuable lessons that might be applicable to other anticorruption agencies that find themselves facing a comparable dilemma:

Continue reading →

Corruption’s War on the Law

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“Corruption’s War on the Law” is the headline on an article Project Syndicate just published. There former French magistrate and corruption fighter Eva Joly recounts the fate of those who have dared to confront powerful networks of corrupt officials and those who corrupt them.  Maltese investigative journalist Daphne Caruana Galizia was murdered by accomplices of those she was investigating. So was Rwandan anti-corruption lawyer Gustave Makonene. So too was Brazilian anticorruption activist Marcelo Miguel D’Elia.

After a second attempt on his life, Nuhu Ribadu, first chair of Nigeria’s Economic and Financial Crimes Commission, the country’s premier anticorruption agency, famously remarked:

“When you fight corruption, it fights back.”

In her article, Mme. Joly, who received numerous threats for investigating and ultimately convicting senior French officials for corruption, explains that violence is just one way corruption “fights back.”  The most recent head of Nigeria’s EFCC was arrested and detained on trumped up charges of corruption. Ibrahim Magu has been suspended from office pending further proceedings, proceedings unlikely to be held this century.

At the same, Nigerian anticorruption activist Lanre Suraju is, as this blog reported last week, being charged with “cyberstalking” for circulating documents from a court case that implicate associates of the current Attorney General in a the massive OPL-245 corruption scandal. This form of intimidation, which Nigerians have dubbed “lawfare,” has now been exported to Europe. Italian prosecutors are being subjected to both criminal charges and administrative action for having the nerve to prosecute one of Italy’s largest companies for foreign bribery (here).

President Biden has declared the global fight against corruption to be a national priority, and he will shortly host a democracy summit where Brazil, Italy, Malta, Nigeria, and Rwanda will be represented at the highest level. Might he remind them which side of the fight they should be on?

Announcement: CIPE’s Anticorruption Podcast Roundup (and Contest!)

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As most readers of this blog are likely aware, in addition to this blog I also co-run an anticorruption podcast series–called “KickBack: The Global Anticorruption Podcast”–in collaboration with the Interdisciplinary Corruption Research Network. Ours is certainly not the only anticorruption-themed podcast out there. Indeed, it seems that there’s been a proliferation of such podcasts in the last couple of years, and it can sometimes be hard to keep track of all the podcasts that people in the anticorruption may want to follow. Fortunately, the Anti-Corruption & Governance Center at the Center for International Private Enterprise (CIPE) has put together a list of ten anticorruption podcasts which are worth checking out. (My ICRN colleagues and I are grateful that KickBack is included in this list!)

Also, as a fun way to publicize all of these podcasts and attract new listeners, CIPE is running a “People’s Choice” contest, where you can vote for your favorite anticorruption podcast and your favorite individual podcast episode(s). You can vote here. I feel like I should put in a plug for KickBack, but really, as folks always say at awards shows, it’s an honor just to be nominated. 🙂

In all seriousness, thanks to CIPE for calling attention to all of these podcasts–some of which I already knew about and listened to, but others of which I only learned about from CIPE’s list, and all of which are worth a listen. I’m providing below links to these ten podcasts, but I would recommend going to CIPE’s post, which provides more detailed descriptions of each podcast. (I’m sure there are more podcasts out there that the anticorruption would find of interest, so I invite readers to publicize other podcasts in the comments on this post.)

Here are the ten anticorruption podcasts on CIPE’s list so far: