Why Does the American Bar Association Oppose Beneficial Ownership Transparency Reform?

Right around the same time that this post appears on the blog, the U.S. Senate Judiciary Committee will be holding a hearing on “Beneficial Ownership: Fighting Illicit International Financial Networks Through Transparency.” The main focus of the hearing will be on a pending bill, the True Incorporation for Transparency for Law Enforcement Act (TITLE Act). That bill’s major provisions do two main things:

  • First, subject to certain limited exceptions, the Act would require that every applicant wishing to form a corporation or limited liability company (LLC) in a U.S. State must provide that State with information on the true or “beneficial” owners of the company—that is, the live human beings who actually exercise control over, and/or receive substantial economic benefits from, these entities—and to keep this information updated. This information could then be requested by a law enforcement or other government agency, or by a financial institution conducting due diligence on a customer. Those applicants who don’t have a U.S. passport or driver’s license who want to form a corporation or LLC would have to apply through a U.S.-based “formation agent”; this agent would be responsible for verifying, maintaining, and updating information on the identity of the legal entity’s beneficial owners.
  • Second, the bill would also subject these “formation agents” to certain anti-money laundering (AML) rules applicable to financial institutions, including the requirements for establishing AML programs and filing suspicious activity reports (SARs) with the Treasury Department. However, the TITLE Act expressly exempts attorneys and law firms from this provision—provided that the attorney or law firm uses a separate formation agent in the U.S. when helping a client form a corporation or LLC. (The idea, as I understand it, is that the bill would avoid putting attorneys in the position of potentially having to file SARs on their own clients—but in order to avail themselves of this exemption, an attorney helping a client form a corporation would have to retain a separate formation agent, and it would be this latter agent that would be subject to the AML rules. More on this in a moment.)

Compared to the more aggressive beneficial ownership transparency reforms touted by anticorruption/AML advocates, and adopted in some other countries, the proposed U.S. legislation is fairly mild—but it is still, as prior commentators on this blog have emphasized (here and here), a welcome step in the right direction. After all, while the U.S. record on fighting global corruption and international money laundering is good in some respects (Foreign Corrupt Practices Act enforcement and the Kleptocracy Asset Recovery Initiative come to mind), when it comes to addressing the facilitators of corruption, such as corporate secrecy, the U.S. is a laggard (as illustrated by poor U.S. score on the Tax Justice Network’s 2018 “Financial Secrecy Index,” released last month). So it’s indeed encouraging that the TITLE Act, and its counterpart in the U.S House of Representatives (the less-cleverly-named “Counter Terrorism and Illicit Finance Act”) have received both bipartisan support and the endorsement of a wide range of interest groups—including not just anticorruption, AML, and tax justice advocacy groups, but also representatives of law enforcement, the finance industry and other business interests (here and here). Many are cautiously optimistic that some version of these bills might actually become law this year.

But some opposition remains. The sources of that opposition are, in some cases, predictable: the Chamber of Commerce, for example, opposes these reforms, as does FreedomWorks, the lobbying group sponsored by the libertarian billionaire Koch brothers. One of the major opponents of the legislation, though, was more surprising, at least to me: the American Bar Association (ABA), which represents the U.S. legal profession. The ABA has come strongly against this legislation, sending letters to the responsible committees in both the House and Senate expressing strong opposition to even these relatively mild reforms.

What’s the explanation for this uncompromising opposition? Do the objections make sense on the merits? How did the ABA decide to take such a strong stand, despite the fact that I’m sure many ABA members support greater beneficial ownership transparency? I don’t know the answers to any of these questions yet, and I may try to do a few more posts over this month as I try to work through these issues. But for now, let me offer some preliminary thoughts: Continue reading

Did the Trump Organization’s Azerbaijan Deal Violate the FCPA?

Adam Davidson’s New Yorker piece from earlier this month, “Donald Trump’s Worst Deal,” has been getting a lot of attention, and deservedly so. The article, which focuses on the Trump Organization’s involvement in a hotel deal in Baku, Azerbaijan, does a very nice job highlighting the troubling background of the Trump Organization’s Azeri business partners and the Trump Organization’s casual approach (to put it charitably) to due diligence. However, the piece also suggests that the Trump Organization’s involvement with the Baku hotel deal may have violated the Foreign Corrupt Practices Act (FCPA), and many of the follow-up discussions of Mr. Davidson’s piece have repeated this claim (see, for example, here and here). On this point, not everyone agrees. Professor Mike Koehler, for example, wrote a lengthy critique of Mr. Davidson’s discussion of the FCPA issues, concluding that nothing in the facts as reported in the article suggests that the Trump Organization violated the FCPA – and that many of the article’s assertions to the contrary are based on incomplete and misleading representations of the statute and prior case law.

After having finally had a chance to read Mr. Davidson’s article carefully, it seems to me that Professor Koehler has the better of the argument—mostly. Much of the discussion of potential FCPA violations in Mr. Davidson’s article is confused and potentially misleading. That said, I do think there’s at least one plausible basis for the claim that the Trump Organization may have violated the FCPA in this case.

Here’s my take: Continue reading

Large-Scale Land Acquisitions: Opportunities for Corruption

Recent years have seen a significant rise in large-scale land acquisitions by foreign investors, generally for agricultural or extractive purposes. Many of these land deals, termed “land grabs,” have had injurious effects on local populations who are often pushed off of their land without their informed consent. (For a description of contemporary land grabs and a land grab bibliography, see here.) Foreign companies and governments secure the majority of these land deals in poorer countries, where large tracts of land can be purchased cheaply, and where many of the local inhabitants do not have the means to contest the deals through the legal system. The land is frequently used for agriculture or production of “flex crops” (such as soy or palm oil), which are then sold abroad, rather than to the host country. Therefore, land grabs can result in not only the displacement of local communities, but also the reallocation of these vital resources to external actors, rather than to the inhabitants of the host country.

Large-scale land deals are often facilitated by corrupt practices perpetrated by the foreign purchaser and/or the host government, through the transactions themselves or through weak institutions. Last November, the International Corporate Accountability Roundtable (ICAR) and Global Witness released a report that details the opportunities for corruption at each stage of large-scale land acquisitions, as well as the current legal frameworks for addressing this corruption. As noted in the report, corruption can occur in each of the six phases of a land deal: Continue reading

TI Report on Anti-Bribery Compliance Programs in the Defense Industry: Some Quick Reactions

Last April Transparency International UK released a very interesting report on the quality of corporate anti-bribery compliance programs in the defense industry. (This was the second such report; the first was issued in 2015). The report evaluated the ethics and anti-bribery compliance programs of 163 defense companies along five dimensions (leadership & governance, risk management, policies & codes, training, personnel & helplines) using publicly available information, supplemented with additional internal information from 63 cooperating firms, and assigned each firm a letter grade (A-F). The most eye-catching result, and the one that has gotten the most attention in the press releases and reporting on the report, is how badly the defense industry seems to be doing overall on this issue: Of the 163 firms included in the review, there were 4 As, 23 Bs, 29 Cs, 31 Ds, 19 Es, and 57 Fs. Thus, fewer than 17% of the defense firms examined scored in the A or B range, while close to half (47%) received a failing grade of E or F.

That’s certainly a notable and important (and depressing) finding, but digging a bit deeper, there are a few other interesting features of the report that have gotten a bit less attention, and are worth highlighting. Continue reading

Looking Where They Shouldn’t: China’s Crackdown on Due Diligence Investigators

As Meng suggested in a recent post, there is something admirable about Chinese President Xi Jinping’s anticorruption crusade. With nearly 182,000 party members reprimanded during his first 18 months in office, President Xi’s program appears both more ambitious and enduring than those of his predecessors. Unfortunately, though, the core of corruption surrounding China’s senior leadership remains largely untouchable. Even as China cracks down on the abusive practices of low-level officials, billions of dollars in “suspicious” funds sit in the foreign accounts of that nation’s “princelings,” protected by the fact that, as Matthew notes, discussion of the corruption of China’s senior leaders remains “absolutely taboo.” After all, shedding too much light on the misbehavior of the nation’s elite threatens to defeat the leadership’s paramount concern: maintaining the legitimacy that undergirds China’s political stability. And this leads to what it is that positive accounts of President Xi’s battle against corruption often overlook: the contemporaneous willingness of China’s senior leaders to crack down on anticorruption efforts whenever those efforts threaten to step on the wrong political toes.

One of the best examples of this phenomenon is the Chinese government’s recent crackdown on investigative companies who perform due diligence. Continue reading