Guest Post: An Exercise in Underachievement–The UK’s Half-Hearted Half-Measures To Exclude Corrupt Bidders from Public Procurement

GAB is delighted to welcome back Susan Hawley, policy director of Corruption Watch, to contribute today’s guest post:

A year ago, in May 2016, the UK government gathered 43 nations around the world together at the London Anti-Corruption Summit to show their commitment to fighting corruption. The resulting declaration made a number of bold promises. One of the most important—though not one that grabbed a lot of headlines—was the announcement that corrupt bidders should not be allowed to bid for government contracts, and the associated pledge by the declaration’s signatories that they would commit to ensuring that information about final convictions would be made available to procurement bodies across borders. Seventeen signatories went further, making specific commitments to exclude corrupt bidders, while six countries pledged to establish a centralized database of convicted companies as a way of ensuring procurement bodies could access relevant information. (Three other countries committed to exploring that possibility.)

The London Anti-Corruption Summit was right to be ambitious about focus on this issue in its declaration. Research shows that the risk of losing business opportunities such as through debarment from public contracts ranks has a powerful deterrent effect—equal to that associated with individual executives facing imprisonment, and much greater than one-off penalties such as fines. Yet debarment of corrupt companies for public contracting is quite rare. The OECD Foreign Bribery report found that while 57% of the 427 foreign bribery cases it looked at spanning 15 years involved bribes to obtain government procurement contracts, only two resulted in debarment. Even the US which has a relatively advanced debarment regime and which debars or suspends around 5000 entities a year from public procurement, appears to debar very few for foreign bribery and corruption. And the UK does not appear to have ever excluded a company from public procurement, despite laws in place since 2006 that require companies convicted of corruption and other serious crimes to be excluded from public contracts.

Did the London Anti-Corruption Summit mark significant turning point in the UK’s approach to this issue? Having persuaded 43 countries to sign a declaration that included a commitment to exclude corrupt bidders, did the UK have its own bold new vision to implement that commitment domestically? Unfortunately, the answer is no. Continue reading

Leniency Agreements Under Brazil’s Clean Company Act: Are They a Good Idea?

Brazil’s 2013 Clean Company Act, the country’s first anti-bribery statute applicable to companies, has grabbed Brazilians’ attention due to its recurrent use in the context of the so-called Car Wash operation. The Clean Company Act has provided the main legal basis for Brazilian public authorities (especially federal prosecutors) to sign leniency agreements with construction corporations whose top executives stand accused of bribing officials in exchange for contracts from Petrobras, Brazil’s state-owned oil giant. Under the Act, Brazilian authorities may enter into a leniency agreement as long as the company admits its participation in the illicit act, ceases any further participation, provides full restitution for damage caused, and cooperates fully and permanently with the ongoing investigation. In exchange, the fines can be reduced by up to two-thirds and, more importantly, the cooperating company may be exempted from judicial and administrative sanctions, including suspension or debarment from public contracts. Over the course of the Car Wash investigation, Brazilian authorities have already signed five leniency agreements with some of Brazil’s largest engineering firms, and at least twelve more companies are currently negotiating leniency deals with Brazilian authorities.

But do these sorts of leniency agreements provide for sufficient deterrence of corrupt behavior? And are they consistent with the interest in punishing those companies that have committed a serious crime? Those who defend Brazil’s increasing use of leniency agreements emphasize that a similar approach has proven to be effective in countries like the United States, one of the most successful countries in the world in the fight against corruption. Indeed, the leniency agreements authorized by the Clean Company Act were modeled on the Non-Prosecution Agreements (NPAs) and Deferred Prosecution Agreements (DPAs) used by US authorities in white-collar criminal law enforcement. However, Brazil is following the US model precisely at a time when the widespread use of NPAs and DPAs is becoming more controversial, in part because of concerns that these sorts of agreements fail to deter economic crimes and allow high-ranking executives to escape accountability for their crimes (for a summary of the criticisms of those agreements, see here and here). Perhaps more importantly, even if one views the US experience with NPAs and DPAs as successful overall, there are several reasons why this model might be more problematic in the Brazilian context. Continue reading

The Case for Corporate Settlements in Foreign Bribery Cases

Although 41 countries have signed onto the OECD Anti-Bribery Convention, the United States remains the most active enforcer—by a lot. Two salient facts about the U.S. strategy for enforcing its Foreign Corrupt Practices Act (FCPA) are often noted: Sanctions against corporations are more common than cases targeting individuals, and most of these corporate cases are resolved by settlements—often pre-indictment diversionary agreements known as deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs). Both of these facts are sometimes exaggerated a bit: According to the OECD’s most recent composite data (for enforcement actions from 1999-2014), the U.S. imposed sanctions on 58 individuals (compared to 92 corporations or other legal persons), and of those 92 legal persons sanctioned, 57 reached a settlement via a DPA or NPA (meaning that 35 of them were sanctioned through a post-indictment plea agreement or—much more rarely—a trial). Still, it’s true that the U.S. enforcement strategy makes extensive use of pre-indictment settlements with corporate defendants, and that fact has attracted its share of criticism.

While most of that criticism (at least in the FCPA context) has come from the corporate defense bar and others opposed to aggressive FCPA enforcement, the use of DPAs/NPAs has been questioned by anticorruption advocates as well. Recently, the UK-based anticorruption NGO Corruption Watch (CW) published a report entitled “Out of Court, Out of Mind: Do Deferred Prosecution Agreements and Corporate Settlements Fail To Deter Overseas Corruption”; shortly thereafter, CW, along with several other leading NGOs (Global Witness, Transparency International, and the UNCAC Coalition) sent a letter to the OECD expressing “concern that the increasing use of corporate settlements in the way they are currently implemented as the primary means for resolving foreign bribery cases may not offer ‘effective, proportionate and disuasive’ sanctions as required under the Convention,” and “urg[ing] the OECD Working Group on Bribery to develop as a matter of priority global standards for corporate settlements based on best practice.” Last week, here on GAB, CW’s policy director Susan Hawley provide a succinct summary of the case for greater skepticism of the practice of resolving foreign bribery cases through DPAs/NPAs, and the need for some sort of global standard.

I disagree. While I have the utmost respect for Corruption Watch and the other NGOs that sent the joint letter to the OECD, and I sympathize with many of their concerns, I find most of the criticisms of the DPA/NPA mechanism, particularly as deployed by U.S. authorities in FCPA cases, wide of the mark. I also remain unconvinced that there is a pressing need for “global standards” for corporate settlement practices, and indeed I think that pushing for such standards may raise a host of problems. These issues—whether DPAs/NPAs are sufficiently effective sanctions, and whether we need common global standards regulating their use—are quite different, so I will address them separately. In this post, I will respond to the main criticisms of the U.S. practice of using DPAs/NPAs to resolve FCPA cases, focusing on the concerns emphasized in the CW report. In my next post, I will turn to the question whether the OECD, the UN Convention Against Corruption, or some other international agreement or body ought to try to establish global standards regulating the use of corporate settlements.

So, what’s wrong with the analysis in the CW critique of corporate settlements? Lots of things—so many that it’s hard to know where to begin. But before turning to my criticisms, it’s worth starting out by re-stating some of the main reasons why it might make sense to resolve some anti-bribery cases via corporate settlements: Continue reading

Should the TPP Address Corruption? If So, How?

The Office of the U.S. Trade Representative (USTR) says it is trying to include anticorruption pledges in the proposed Trans-Pacific Partnership (TPP) trade deal. According to USTR, it not only wants “commitments to promote transparency, participation, and accountability” in trade issues (commitments USTR claims it has already had some success securing recently), but also more general “commitments discouraging corruption . . . among public officials.” It’s not entirely clear what USTR means, particularly with respect to this latter suggestion that it is going to push for more general anticorruption pledges in the TPP. Maybe it doesn’t mean much – it might just be feel-good rhetoric, with little connection to what’s actually going on in the closed-door TPP negotiations. But suppose that USTR is sincere, and that it genuinely hopes to include some sort of anticorruption language in the final TPP deal. Is this a good idea? If so, what sorts of anticorruption commitments would be appropriate in a mega-regional trade agreement like the TPP?

The idea of incorporating anticorruption measures into trade deals is hardly novel. (See this panel summary for some high-level background). Last year, Colette’s post on this blog recommended adopting Transparency International’s suggested anticorruption measures for the proposed Transatlantic Trade and Investment Partnership (the T-TIP), though she also opposed addressing corruption through the multilateral WTO regime. Other commentators and civil society groups have pressed for the incorporation of anticorruption measures in other regional free trade agreements (for example, see here and here). With respect to the TPP, these prior discussions suggest several considerations that USTR negotiators should keep in mind if they are serious about pushing for more anticorruption language in this agreement: Continue reading

Sanctions Systems of Multilateral Banks: Overview and Responses

Although prosecutions under transnational anti-bribery laws like the US Foreign Corrupt Practices Act may get more attention, the major multilateral development banks (MDBs) have adopted administrative sanctions systems that significantly contribute to the strengthening of integrity structures in the countries in which they operate. Indeed, the seven large MDBs share an anticorruption strategy that includes harmonized definitions of fraudulent, corrupt and other prohibited practices. The strategy also incorporates shared principles for conducting integrity due diligence in private sector transactions, and a framework for sharing information to address integrity concerns. These sanctioning systems help to deter and prevent corruption in funded projects, thereby helping to ensure that MDBs achieve their development mandates and fulfill their fiduciary duty to guarantee that their loans are used “only for the purposes for which the loan was granted”. In some cases, as in the World Bank’s Macmillan Publishers and SNC-Lavalin debarments, MDB sanctions have preceded criminal charges by national authorities. In this post, I will provide a brief overview of these systems. Continue reading

Guest Post: Why Debarment Is Different–A Reply to Professor Stephenson

Richard Bistrong, a writer, speaker, and blogger on anti-bribery compliance issues, contributes the following guest post:

As the recent OECD Foreign Bribery Report made clear, debarment (prohibiting the defendant company or individual to engage in future government contracting) is very rarely used as a sanction in foreign bribery cases, most likely because prosecutors worry that debarment would be an excessive penalty that would often do too much collateral damage to innocent parties. I have argued that debarment can and should be used more frequently, and that the legitimate concerns about disproportionate punishment can be addressed by using various forms of “partial debarment.” In a recent post, Professor Stephenson draws attention to a number of potential shortcomings to my proposal. While I agree with some of his points, I think he understates the ways in which debarment—as distinct from fines or other monetary penalties—can have a distinctive deterrent effect on foreign bribery, and why partial debarment might therefore often be appropriate.

Let me try to clarify where Professor Stephenson and I disagree, where we may disagree, and why partial debarment is a sanction that government enforcers ought to employ more often. Continue reading

Is the “Too Big to Debar” Problem a Problem? And Is Partial Debarment a Solution?

In my last post, I discussed one aspect of the (very useful) OECD Foreign Bribery Report: the characteristics of the bribe-paying firms in the 427 enforcement actions between February 1999 and June 2014. Today, I want to turn to a different aspect of the report, concerning the penalties levied in those foreign bribery cases. As the report notes, although these cases have often resulted in quite substantial fines (and associated monetary penalties, like disgorgement), one available penalty in the public procurement context–debarment from future government contracts–has been used extremely rarely (in only two of the enforcement actions the OECD examined). The OECD Report concludes that this is a problem, emphasizing as one of the report’s key conclusions that “the fact that only 2 out of 427 cases resulted in debarment demonstrates that countries need to do more to ensure that those who are sanctioned for having bribed foreign officials are suspended from participation in national public contracting.” This conclusion echoes the thesis of a 2011 article by Professor Drury Stevenson and Nicholas Wagoner, who developed the case for expanded use of debarment in FCPA enforcement actions at greater length and in greater depth.

But the title of Stevenson & Wagoner’s article–“Too Big to Debar”–alludes to the main reason debarment is not used more often as a sanction in FCPA or other foreign bribery cases: Debarment, particularly for firms that do much or all of their business with governments, may be effectively a death-sentence for the firm, or at the very least inflict a level of economic loss that seems out of proportion to the wrongdoing. This concern is especially acute when much of the collateral consequences of debarment would fall on “innocent” parties (non-culpable employees and shareholders, as well as the firm’s would-be government customers). Stevenson & Wagoner’s response to this legitimate set of concerns is not all that satisfying: they emphasize the deterrent value of debarment (perhaps suggesting that debarment is a bit like a nuclear weapon, in that a credible threat to use it means in practice you won’t need to use it very much), and they suggest the government could make the threat of debarment more credible by diversifying its set of suppliers.

More recently, Richard Bistrong (a convicted FCPA defendant turned insightful FCPA consultant and commentator) has advanced what I consider a more nuanced and plausible set of proposals that could allow the government to preserve debarment as a remedy, without necessarily imposing a “corporate death sentence.”  Mr. Bistrong’s proposals all entail some form of more limited debarment: debarment only until the firm demonstrates commitment to effective corrective measures; debarment only from certain kinds of contracts; debarment only from foreign contracts requiring export licenses; or debarment only from contracting with certain governments (for instance, with the government that was the subject of the anti-bribery enforcement action). Putting the details temporarily to one side, Mr. Bistrong’s larger point, as he explains it, is as follows: “[T]here is a misperception that debarment equates to a corporate death sentence. I hope that by elevating some of the incremental enforcement and policy options which might be available in the context of [de]barment, that perhaps the ‘all or nothing’ perception might be reassessed.”

I find all of this plausible and helpful, but I think it’s worth taking a step back for a moment to consider why we might want to use debarment as a sanction in the first place. Thinking this through might be helpful in assessing Mr. Bistrong’s intriguing proposals for incremental or partial debarment, as well as the “too big to debar” problem more generally. Continue reading