Why the WTO Should Tackle Border Corruption

When a state systematically fails to suppress bribery in its customs service, should that be an actionable violation of international trade law? More broadly, to what extent do anticorruption provisions have a place in the law of the World Trade Organization? In a 2014 post on this blog, Colette van der Ven squarely addressed these questions and concluded that the answer is no: the WTO, in her view, is not well suited to handling complaints of corruption.

I disagree with Colette’s well-reasoned analysis. While she is right to point out substantial challenges to grappling with anticorruption through the WTO, these challenges are surmountable—and the importance of a WTO remedy counsels in favor of surmounting them. Continue reading

Guest Post: Does International Law Require an International Double Jeopardy Bar?

GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

Most countries prohibit multiple prosecutions for the same acts or offenses. This is known in the United States as the prohibition against “double jeopardy”; in Europe and elsewhere the principle is known as ne bis in idem. But what happens if a person or company is pursued in more than one country? This question is particularly relevant to the fight against foreign bribery, where the same act will often offend the criminal laws of multiple countries. The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted in 1997, clearly anticipated the possibility of multi-state prosecutions, but provided in Article 4.3 only that the relevant authorities should “consult with a view to determining the most appropriate jurisdiction for prosecution,” a provision that has been consistently interpreted as precatory, not providing an individual right against double prosecution.

The law in the United States provides no protection against duplicate prosecution by a different sovereign. The situation is more complex in Europe. In some countries, such as France, domestic legislation limits a prosecutor’s power to pursue a person or entity already the object of a prosecution in another country, but only if the exercise of French jurisdiction is “extraterritorial” (that is, where no constitutive act of the alleged crime took place on French territory, but the prosecution based on some other factor, such as the French nationality of the accused or the victim).  Within Europe, a series of overlapping treaties—Protocol Number 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF), adopted in 1984 by the Council of Europe and signed by most but not all of its members; Article 54 of the Convention to Implement the Schengen Agreement (CISA), adopted in 1990; and Article 50 of the Charter of Fundamental Rights of the European Union (CFR) adopted in 2009—all contain ne bis in idem provisions, though they are not identical. (The CISA provision, for example, protects against re-prosecution based on the same “acts,” while the CFR and CPHRFF protect against multiple prosecutions for the same “offense.”)  The CISA provision has been expansively interpreted by the European Court of Justice, which has noted that CISA mandates a “mutual trust” in the criminal justice systems of other signatory countries, and respect for their decisions “even when the outcome would be different if [the second country’s] own national law were applied.”

Lurking behind these and other developments in Europe is the possibility that protection against multiple prosecutions may one day be viewed as right, grounded in international treaty obligations, that is cognizable under domestic constitutions. No court has yet so ruled, but there are sufficient intimations of such a possibility in some French decisions, for example, that the issue is frequently raised there. Continue reading

The Case Against an International Anti-Corruption Court

Judge Mark Wolf recently published a Brookings Paper, and an accompanying Op-Ed in the Washington Post last week, calling for the creation of an “International Anti-Corruption Court” (IACC), modeled on the International Criminal Court (ICC). The proposal is motivated by the twin observations (1) that corruption is incredibly damaging (not only in its economic costs, but also in its link to human rights abuses), and (2) that although corruption is illegal everywhere, in many countries “grand” corruption at the highest levels of government creates a culture of impunity in which the corrupt need not fear punishment.

Judge Wolf is not only a distinguished jurist, but also an experienced prosecutor of corruption cases within the United States, and for these reasons alone his proposal is worth taking seriously. And I am very much in agreement with him about the insufficiency of current anticorruption measures, particularly in those countries beset by the culture of impunity that he and others have so vividly described. Yet I find myself deeply skeptical of his proposal for an independent IACC. Indeed, I think the proposal is at best unhelpful, and at worst counterproductive. Let me explain why.

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UNCAC, Asset Recovery, and the Perils of Careless Legal Analysis

A little while back I posted a critical commentary on the Stolen Asset Recovery Initiative’s Left Out of the Bargain report.  The report described – and implicitly but clearly criticized – the fact that although the U.S. and other “supply-side” jurisdictions had recovered substantial amounts of money in settlements with bribe-paying firms, only a relatively small percentage of those settlements were transferred to the “demand-side” countries where the bribery took place.  These demand-side countries (which the report, to its credit, carefully avoids calling “victim countries”) are the ones that are “left out” of the “bargain” (that is, the settlement) between bribe-paying firms and supply-side governments.

I read the report as calling for, among other things, greater redistribution of settlement proceeds to demand-side governments, and expansion of the ability of those governments (or private parties) to pursue “follow-on” actions.  My main criticism was that the report neglected to consider the effect that either change would have on the incentives of firms and supply-side enforcers.  Two of the report’s authors, Ji Won Park and Jacinta Odour, posted an interesting reply to my post, which I recommend (along with my rejoinder, which can be found in the comments section of the original post).  But although the main focus of my critique and their response was the incentives issue, our exchange also revealed an important difference of opinion regarding the meaning and significance of the UN Convention Against Corruption, particularly its provisions on asset recovery.  It’s that issue that I want to explore here.

In my original post, I remarked in passing that the StAR report “elides … the distinction between asset recovery actions—in which a country seeks the repatriation of assets stolen by the country’s own nationals (usually former officials or their family members)—and actions for penalties or disgorgement brought against a firm or individual for allegedly bribing foreign officials.” In their response, Park and Odour “disagree that the [Left Out of the Bargain] study does not distinguish between repatriation of assets stolen by public officials and monetary sanctions imposed in foreign bribery settlements.”  The report does this, they say, “through the lens of UNCAC.” They explain that UNCAC Article 51 (the first Article in Chapter V, on asset recovery) states that “[t]he return of assets pursuant to this chapter is a fundamental principle of [UNCAC], and States Parties shall afford one another the widest measure of cooperation and assistance in this regard.”  Park and Odour then declare that this obligation to assist in the return of assets “applies not only to the mandatory return of assets that proceed from embezzlement and misappropriation […] but also to proceeds of corruption from other offences covered by UNCAC (such as Article 16 on Foreign Bribery) and compensating victims.”

If I’m reading this right, Park and Odour seem to be suggesting that, for purposes of States Paries’ obligations under UNCAC Article 51, there is no significant difference between stolen assets recovered in a forfeiture action, fines recovered in anti-bribery enforcement actions, disgorged profits, compensatory damages, and the like; they are all “assets” within the meaning of Article 51 – which implies, presumably, an undifferentiated obligation to “repatriat[e]” (in Park & Odour’s word) both stolen assets and “monetary sanctions imposed in foreign bribery settlements.”

I don’t believe this assertion can withstand close legal analysis, and I certainly think it is misguided as a matter of policy.

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