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.
There is no longer any doubt that corruption does enormous harm – to individuals, businesses, governments, and whole societies. Nor is there any dispute that those harmed should have a right to recover damages for their injuries. In drafting the UN Convention Against Corruption, governments agreed quickly and without dissent upon what is now article 35. It requires parties to ensure their domestic law permit any person or entity harmed by corruption to “initiate legal proceedings against those responsible for the damage to obtain compensation.”
Yet what evidence there is shows article 35’s promise remains largely unfulfilled.
For the UN Office on Drugs and Crime and the StAR Initiative, I am examining just how far there is to go for that promise to be met. With their resources and the help of the International Bar Association, I have reviewed the case law in close to one-third of the 187 UNCAC states parties. The most common victim recovery cases I find are those where a government agency or state-owned corporation has recovered damages when an employee took a bribe. In a few, courts have also awarded damages to third-parties harmed by the bribery. There are in addition a miscellany of actions I am still digesting covering actions by the competitors of a bribe-payer, consumers, and NGOs.
Below are the bribery victim cases I have located to date. A second post will review the other cases. Reader contributions and comments warmly solicited.
Continue readingToday’s guest post is from Valeria Ciolac, a member of the National Political Council of Moldova’s Party of Action and Solidarity, and a Youth Delegate of the Republic of Moldova to the Congress of Local and Regional Authorities of the Council of Europe.
Since the prospect of effective Covid-19 vaccines emerged last fall, experts have warned about the risks of corruption in the vaccine procurement and distribution process. Alas, in many countries these warnings proved prescient. My home country, the Republic of Moldova, is reeling from reports that politicians and local officials arranged for certain doses of the Covid-19 vaccine to be provided, in secret, to themselves, their family members, and their associates. Evidence of such corrupt misallocation first emerged last March, in the city of Edinet. But this was not an isolated incident. Over the last several weeks, it has become clear that even though the vaccine supply—which was procured only through donations and considerable effort—is supposed to be allocated first to high-priority groups, a group of seven hundred politicians, bank directors, restaurant owners, and others from around the country jumped in front of the line, leaving seven hundred medical workers behind.
When confronted with this evidence, the officials involved tried to explain away the diversion of the vaccines as legitimate use of excess supply. The Mayor of Edinet, for example, claimed that some medical workers chose not to get their vaccines right away, and the vaccines provided to politicians and their friends were surplus doses that would otherwise have been thrown away. But given the long history of public corruption in Moldova, and the resulting lack of trust in the state authorities, most Moldovan citizens doubt this explanation. It seems far more likely that in this case, as in so many other cases, politicians and well-connected individuals used their influence to secure vaccines that should have gone to those with greater need.
While it is tempting to conclude that such corruption is inevitable in a country like Moldova—the poorest country in Europe, and one that has long been immersed in corruption and negligence by the of public authorities—it is more useful to look closely at the Moldovan vaccine distribution system and ask whether things could have been done differently. And indeed, while there’s probably no way to prevent some degree of corruption in vaccine distribution, there are several measures that Moldova, and other countries in a similar situation, could have adopted, and should still embrace now, to minimize the risk of this sort of corruption. Continue reading
Earlier this year, Transparency International released its annual Corruption Perception Index (CPI) and, once again, New Zealand was ranked as the “least corrupt country in the world” – a title it has held thirteen out of the last fifteen years. It may come as something of a surprise, then, that this news was greeted in New Zealand not so much with celebration as with measured caution. Even the most positive New Zealand news outlets led with caveats that New Zealand still faces corruption risks, including “inadequate protection for whistle-blowers, and no register showing who ultimately controls or benefits from companies registered in this country.” Others skipped the congratulatory headlines entirely, preferring headers such as “Government Warned Not to Ruin Corruption-Free Status.” As one New Zealand newspaper succinctly put it: “New Zealand is the least corrupt country in the world, but when that statement is whispered over here it is almost always followed by a ‘however’.”
This near-ubiquitous grimness of New Zealand’s press with regards to anticorruption measures practically begs the outside observer to ask: Why the doom and gloom? What explains the gap between “all major ranking institutions and indexes” and the perception of New Zealand’s citizenry themselves?
Continue readingIn 2020, one of the largest energy companies in America, Commonwealth Edison (ComEd), admitted to bribing “Public Official A” for legislation that allowed the company to increase the utility rates ComEd charged to Illinois citizens. Public Official A is almost certainly former Illinois House Speaker Michael Madigan, the longest-serving House Speaker in a state legislature in American history. Though Madigan denies wrongdoing and has not yet been charged, the evidence indicates that for close to a decade, ComEd bribed Madigan—for example, by giving Madigan’s allies political patronage jobs and “do-nothing consulting” contracts—in exchange for favorable legislation.
Madigan’s tenure as Speaker exemplifies Lord Acton’s adage that absolute power corrupts absolutely. During his time as Speaker, Madigan consolidated power over the legislative process, as well as substantial leverage over how other House members voted. This concentration of influence made him the ideal corruption broker for companies like ComEd. Preventing this sort of corruption from arising in the future will require various reforms, including the empowerment of external watchdogs, such as the currently dysfunctional and ineffective Office of the Legislative Inspector General. But while proposals to reform this office (see here and here) are welcome, genuine structural reform will require addressing the excessive concentration of power in the House Speaker. If Illinois, and similar jurisdictions, hope to tackle the sort of corruption we see in the ComEd scandal, it is essential to ensure greater dispersion of power within the legislature.
Continue ReadingThe Anti-Corruption Law Interest Group of the American Society of International Law (ACLIG), the World Bank’s Office of Suspension and Debarment (OSD), and the OECD’s Anti-Corruption Division are organizing a symposium on “Supranational Responses to Corruption,” tentatively planned to be held in person in Vienna, Austria on November 18-19, 2021, with the possibility to participate remotely. The theme of the symposium–which is described in greater detail here–is “supranational responses to corruption.” In other words, the symposium will focus on current and prospective anticorruption efforts that transcend national boundaries or governments. Themes of this symposium may include, but are not limited to:
The organizers are inviting proposals for both full papers (minimum 5,000 words) and short essays (minimum 2,500 words) from scholars, private sector professionals, international organizations professionals, policymakers, public officials, civil society organizations, and the broader international anti-corruption community. The deadline to submit a proposal is May 15, 2021 (a month from today). A proposal should be between 250 and 500 words, and should indicate how the proposed paper or essay relates to the themes of the symposium. To submit a proposal, you should send it (together with a brief biographical statement) to acsymposium2021@gmail.com. Successful applicants will be informed by June13, and the deadline for submitting the full paper or essay will be September 25, 2021.
This sounds like a great event on an important set of topics, so I hope that many of you will consider submitting proposals!
American law offers victims of corruption several advantages: a range of legal theories on which to bring suit for damages; a low cost procedure for recovering damages in a criminal prosecution; the ability to aggregate many small claims into a class action; rules permitting lawyers to represent claimants in return for a share of any recovery. Each has contributed to a decent corpus of corruption victim compensation law (reviewed here), and each merits consideration by judges and policymakers elsewhere searching for ways to reduce obstacles to the recovery damages for corruption.
One feature of American law should, however, be avoided at all costs. Too often courts demand victims show exactly how much harm they suffered to recover damages. The exercise is inherently imprecise. Advanced econometric techniques fed the best data imaginable yield nothing but a rough approximation. U.S. courts are beginning to opt for common sense rules of thumbs in some settings, but the demand for precision where precision is not possible still frequently stands in the way of the victim compensation.
The most egregious cases are where an employer seeks damages caused when a supplier bribes an employee.
Continue readingIndia’s farmers are up in arms, and have been for several months. In the midst of a cold Delhi winter, tens of thousands are braving tear gas, batons, and water cannons to protest a set of three new agricultural bills passed by the Modi government late last year. The government promises that these bills will bring about much needed reform in India’s agricultural sector, eliminating corruption in the state-run system and increasing the payout to farmers. Unfortunately, in its usual fashion, the Modi government opted to set aside federalist principles and run roughshod over democracy in introducing the reforms, contributing to the barrage of protests it now faces. And farmers have good reason to complain: the reforms signal an eventual, although not immediate, end to the government’s price floors (the “minimum support price” or MSP) for select crops. While India’s MSP system needs reform, the new bills offer insufficient protections and oversight, thus potentially enabling big business and middlemen, working with corrupt officials, to drive prices so low as to make small-scale farming impossible.
Despite these genuine and serious problems, the main reforms at the heart of these bills would do a lot of good—not least because these reforms would make major strides in addressing corruption as it exists now. And while the Modi government’s high-handed rollout of the bills has already done a great deal of damage, in terms of substance, a few key modifications to the bills could address the most serious concerns about the corrupt exploitation of farmers that the bill might otherwise foster.
It has been a dramatic five years in Peru since the last presidential election.
A series of standoffs between the executive and legislative branches have seen one dissolution of Congress and three attempts at impeachment of the president. Two former presidents have been arrested for their involvement in the Odebrecht corruption scandal, and a third committed suicide moments before the police arrived to arrest him. Keiko Fujimori, the opposition leader and two-time presidential runner-up, was arrested for corruption, released, and is now running for president once more.
This turbulence came to a head last October, when Peru was engulfed in its biggest political crisis in a generation. Martín Vizcarra, the former president who had served for two and a half years since Pedro Pablo Kuczynski resigned in 2018 in the face of a vote-buying scandal, was himself impeached by Congress following credible but unproven allegations that he had accepted bribes earlier in his career. Congress appointed Manuel Merino, the president of the Congress who spearheaded the campaign to impeach Vizcarra, as interim president. Peruvians, outraged at the abrupt removal of a president who enjoyed considerable public support for his commitment to anticorruption reform, took to the streets to protest. They were met with police violence, and two young Peruvians were killed. Merino relented, resigning the presidency after a five-day tenure, and Congress appointed Francisco Sagasti – a moderate who had voted against impeaching Vizcarra – to serve out the final months of the term until the April 11 election.
The magnitude of the public’s mobilization against Merino’s interim presidency was seen by many observers (myself included) as a decisive turning point in the Peruvian people’s willingness to tolerate a corrupt political class. The country’s public health and economy have been ravaged by Covid-19. If there were a perfect moment for a meaningful anticorruption movement to sweep from the bottom to the top – for Peruvian voters to have a sort of “day of reckoning” with systemic corruption – April 11 seemed like that moment.
But now, on the eve of the election, this reckoning looks doubtful to arrive.
Continue reading
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