Why Samsung’s Recent Conviction Will Not Rid South Korea of Chaebols

Samsung is in search of a new leader after Jay Y. Lee, grandson of Samsung’s founder, was convicted of bribing South Korea’s President to approve a controversial merger between two Samsung affiliates. Many thought that the proposed merger, which had been heavily criticized by independent analysts and investors, would not receive the legally-required approval from then-President Park Geun-hye’s administration. Lee allegedly bribed President and people close to her, to the tune of $38 million, for her support. When this corruption was exposed, President Park resigned and Lee was prosecuted and ultimately convicted.

Some hope that these dramatic developments portend more far-reaching changes in South Korea’s economy—in particular, the destruction of the chaebols (literally “wealth clans”), the multinational conglomerates in which leadership is passed from person to person within a family. Many credit chaebols with the successful post-World War II transformation of South Korea’s agrarian economy into an international economic powerhouse, but others criticize chaebols on a number of grounds, including the claim that they concentrate power and wealth in the hands of a small family minority, pay low dividends to ordinary investors, and facilitate the sort of grand corruption exposed in the Samsung affair.

After President Park resigned in disgrace, she was replaced by President Moon Jae-in, promised to put an end to chaebols altogether. Alas, this is unlikely. Indeed, it’s looking increasingly like Samsung’s recent scandal will not have a lasting effect on chaebols, or even on Samsung’s long-term profitability. Continue reading

Learning from Defeat: The Menendez Case

Last Friday, the Department of Justice asked for another chance to try U.S. Senator Robert Menendez on corruption charges, requesting that the court “set the case for retrial at the earliest possible date.”  The first trial resulted in a mistrial.  Ten of the 12 jurors held out for acquittal, saying prosecutors had produced no “smoking gun.”  Yet the prosecution did indeed have a smoking gun – irrefutable proof the Senator broke the law – which it did in fact show the jury.

Prosecutors can learn much about trying corruption cases from the failure to convict Menendez the first time.  Not, as one commentator claims, that America’s anticorruption laws are so flawed only the most flagrant violators need fear them.  The lessons have nothing to do with America’s anticorruption laws, which are hardly in bad shape. Nor its system of 12 citizens determining the facts in a criminal case.  Continue reading

“Petty” Corruption Isn’t Petty

Grand corruption attracts plenty of attention—from activists, the mainstream media, and other commentators (including on this blog)—and for good reason. While the media may simply be riveted by the decadent lifestyles of corrupt actors, the anticorruption community has increasingly recognized the devastating impact that kleptocrats and their cronies can have. No doubt, this attention to grand corruption is welcome and recent successes in fighting it are laudable. At the same time, though, this increased focus on grand corruption carries with it the risk of making smaller, more everyday forms of corruption—sometimes called “petty” corruption—seem less consequential.

Yet so-called “petty” corruption remains widespread, and its aggregate impact should not be underestimated. By way of example, consider the most recent results from the Transparency International (TI) Global Corruption Barometer (GCB) survey of citizens in Latin America and the Caribbean, which found that one-third of people who used a public service paid a bribe in order to do so. In other words, for these 90 million people, their ability to access a government service to which they were entitled was conditioned upon an extralegal payment—and that’s just accounting for this one region.

Even as the anticorruption community rightly focuses attention on combatting grand corruption, we can’t forget the real havoc wreaked by smaller-scale corruption. So-called “petty” corruption is not a petty concern. Rather, it’s a serious, pervasive problem that deserves just as much sustained attention as does politicians buying collector cars and oceanfront properties with assets from their secret offshore bank accounts. At the risk of repeating familiar points, it’s worth reviewing the ways in which small-scale corruption has, cumulatively, a range of incredibly destructive effects:

Continue reading

Bribery in College Basketball: What the Corruption Ring Means for the Future of Collegiate Athletics

Last Tuesday, the U.S. Attorney for the Southern District of New York, Joon H. Kim, shined light onto the “dark underbelly of college basketball” by charging a number of individuals with violating federal bribery, fraud, and corruption statutes. Among those charged were James Gatto, Director of Global Sports Marketing for Adidas, and assistant basketball coaches at the University of Arizona, Auburn University, Oklahoma State University, and the University of Southern California. Additional investigations are currently ongoing at the University of Louisville and the University of Miami.

U.S. Attorney Kim outlined two distinct schemes that were uncovered during FBI investigations. The first involved Adidas executive James Gatto, who allegedly bribed high school basketball stars to sign with certain colleges that were sponsored by Adidas. The second scheme involved financial advisers and agents bribing assistant coaches at universities in exchange for convincing their players to hire those advisers when they became professional athletes.

For those who follow college sports, particularly football and basketball, the illicit activity is not surprising. As longtime collegiate sports journalist Pat Forde explained, “Every basketball program in America is running scared right now, because this is how business gets done. A lot of people knew it, but nobody was able to lay it out with proof like the feds did on Tuesday. It’s a dirty sport, and today we know how dirty.”

It’s nevertheless a bit surprising that the Department of Justice decided now was the time to get involved, as if the corruption has not been going on for decades. The recent charges raise two questions: First, given the longstanding history of bribes in college basketball, why did the Department of Justice finally decide to get involved? Second, what does this mean for the future of collegiate athletics?

Continue reading

What to Do About Corrupt Arbitral Tribunals?

Discussions of corruption in the context of international arbitration typically focus on how arbitral tribunals handle corruption allegations in the cases before them. But there is a wholly separate issue that is often glossed over or ignored: corruption in the arbitral proceedings themselves. And I’m not just talking about the concern—stressed by numerous prominent figures in the arbitration community—about potential conflicts of interest in the system for constructing the tribunals. That concern is a real and serious one, but there is also a more direct and crude problem: parties (or their lawyers) bribing, or making backdoor deals with, the arbitrators to secure a favorable outcome. Last November, Stephen Jagusch QC discussed the routine nature of certain forms of corruption in the arbitration process. He highlighted this claim by repeating a boast he had heard from a presiding arbitrator that year: the arbitrator was “[able] to deliver a good result providing the party appointing him was prepared to share the result with him.” A similar story of corruption and bribery occurred last year in Italy in an arbitral proceeding between AmTrust and Somma. The saga culminated in AmTrust using in U.S. federal court to block the arbitral award, claiming that Somma had offered on the arbitrators 10% of the final award if the one of the arbitrators found in Somma’s favor. Although the case was ultimately settled, the questions about impropriety in the arbitral process remain.

There are two avenues for handling corruption in the arbitral process, but unfortunately neither provides an adequate guard against potentially corrupt activity conducted by arbitrators: Continue reading

Corruption and Federal Pensions: A Case for Rewriting the Hiss Act

David Lee, an employee of the Department of Homeland Security, was tasked with investigating a foreign businessman accused of sex trafficking.  Instead of doing his job, however, he did something very different: He solicited and received $13,000 in bribes to report that that the foreign in question was not involved in criminal activity.  This case is not that unusual. In the last ten years, according to a report by the New York Times, immigration enforcement officials have taken over $5 million in bribes. They’ve sold green cards, ignored illegal activity, and even given information to the very drug cartels they are tasked with combating.

Shockingly, however, even after these officials are fired, they remain eligible for federal pensions. This is not unusual, but rather typical: most federal employees convicted of bribery remain eligible for their government pensions.  This was not always the case: The original 1954 version of a statute called the Hiss Act (named for Alger Hiss, a State Department employee who was convicted of passing state secrets to a communist agent) prohibited the payment of a federal pension to a former federal employee who had been convicted of federal law offenses related to bribery and graft, conflict of interest, disloyalty, national defense and national security, and more generally to the exercise of one’s “authority, influence, power, or privileges as an officer or employee of the Government.” In 1961, however, Congress amended the law to prohibit the payment of pensions only for convictions for serious national security-related offenses. The reason for the change was the view that the original version of the Hiss Act went too far, leaving former federal officials (who had already been punished with termination, fines, and imprisonment), as well as their innocent spouses and children, facing the possibility of destitution. The additional punishment supposedly did not fit the crime, unless the crime directly concerned the national security of the United States.

The impulse not to over-punish is commendable, but the 1961 amendment to the Hiss Act was an overcorrection. The law should be amended to find a middle ground between the 1954 and 1961 versions. The federal government should have the authority to at least limit, and occasionally bar, pensions to certain public officials who have been convicted of a corruption-related offenses such as bribery and extortion. The case for doing so is as follows:

Continue reading

In Accordance with a Comprehensive Scam: Bribery and Conflicts in U.S. Land Use Planning

Corruption in land used decisions is widespread. Quid pro quo exchanges are relatively common, as are conflicts of interest, especially in small communities. In 2011, Transparency International released a report on land use that found “[a]round the world more than one out of 10 people reported paying bribes when dealing with ordinary land issues.” The United States is far from immune. Consider just a handful of recent examples: The City of Boston has asked for help from the FBI in its approach to corruption, particularly corruption in zoning boards. In 2008, the Chicago Tribune ran an eight-part series on corruption in Chicago real estate decisions. An earlier case revealed that an Indianapolis city official with sway over the zoning board regularly asking for bribes. The former mayor of Charlotte resigned after bribery accusations, including taking cash for influencing zoning decisions. And in a recent review, Minneapolis found that conflicts of interest are common in its planning and zoning boards.

What makes land use planners so susceptible to corruption, even in countries, like the United States, that are not usually thought of as suffering from endemic bribery? Part of the problem concerns the institutional set-up. In a typical U.S. community, there will often be a Planning Commission, responsible for approval of individual site development or demolition plans, oversight of subdivisions, and review of the area’s Master Plan for zoning and development. (For some insight into what these meetings might look like, the City of Syracuse, New York makes its applications and minutes available online.) The community (city or county) would usually also have a Zoning Board of Appeals or Zoning Board of Adjustment—tasked with creating a Master Plan, reviewing zoning ordinance changes, and providing special permits or variances from zoning requirements.

The risk factors associated with this approach to land-use decisionmaking include excessive autonomy, complexity, and delay:

Continue reading