US Courts’ Evaluation of Foreign Judicial Corruption: Different Stages, Different Standards

Last August, a US appeals court may have finally brought to a close a case that the court described as “among the most extensively chronicled in the history of the American federal judiciary”: a lawsuit, initially filed in 1993, seeking damages for adverse environmental and health consequences of oil exploration and drilling by Texaco (later acquired by Chevron) in the Ecuadorian Amazon. Chevron and the plaintiffs each have their own version of the long, complicated, and contentious litigation. (For a concise, relatively balanced summary see here.) For present purposes, the essential facts are as follows: After eight years of US litigation, in 2001 Chevron persuaded a US court to send the case to Ecuador. In 2011, after an additional decade of litigation in Ecuador, the Ecuadorian courts ultimately found in favor of the plaintiffs, ordering Chevron to pay an $18.5 billion judgment (later reduced to $9 billion). Unfortunately for the plaintiffs, Chevron doesn’t have any assets in Ecuador, so the plaintiffs have been trying to enforce their judgment in a number of other jurisdictions, including the United States. In its August ruling, the US appeals court affirmed the district court’s 2014 holding that the Ecuadorian judgment could not be enforced in the United States because it was a product of fraud and corruption—including the shocking finding that plaintiff’s attorneys had bribed the judge with a promise of $500,000, and ghostwrote the multi-billion dollar judgment.

At first glance, there appears to be a contradiction, or at least a tension, between how the US courts treated allegations of judicial corruption in Ecuador at two different stages in the proceedings. After all, Chevron was able to successfully persuade a US court to send the case to Ecuador in 2001 because Chevron had successfully argued that Ecuador’s judiciary was sufficiently insulated from corruption to prevent injustice, yet in the most recent ruling, Chevron convinced the court not to enforce the judgment on the grounds of judicial corruption in an Ecuadorian court. But what might at first glance appear to be a contradictory set of rulings can be explained by the fact that US courts apply divergent standards when assessing judicial corruption at different stages of litigation.  Continue reading

Visa Denial as an Anticorruption Tool: The Need for Clarity and Communication

This past April, the U.S. Department of State denied an entry visa to the Vice President of Afghanistan, Abdul Rashid Dostrum, a notorious warlord and a key regional leader in the broad kleptocratic network of corruption that dominates Afghanistan. (In response, and seeking to avoid an embarrassing public spectacle, the Afghan government cancelled the trip, citing ostensible “security” issues at home.) This is but one recent example of an emerging element of anticorruption strategy: the denial of visas to corrupt officials (along with those who have abused human rights). This strategy is attractive for officials like Dostrum, who are beyond the jurisdiction of U.S. and other nations’ anticorruption statutes. This sort of diplomatic tool is a subtle way of controlling and manipulating working relationships with corrupt officials, and can act as both a sanction and disincentive for corrupt behavior. High-level, publicized meetings and trips to Western countries enhance the status of leaders in developing countries. More broadly, visas for officials’ family members to study in the West are also highly prized in the developing world. Restricting these visas can thus be an effective way of deterring corrupt behavior in lieu of actual jurisdictional authority.

Using visa denials as a tool to fight corruption has received a fair amount of attention in recent years among NGOs and international groups like the G20 (see here, here and here), with discussion focusing on two broad concerns: fairness and effectiveness. In my view the fairness concern—the idea that denying an entry visa absent a formal conviction or fair trial violates basic notions of due process–is overblown. A ban on travel does not implicate the same due process concerns that would arise with, for example, freezing of assets held in a foreign country. States have broad discretion in immigration matters, and no foreign citizen has a pre-existing “right” to enter any country at will. And the due process concerns in the visa denial context could be assuaged fairly easily, for example by establishing procedures by which those denied visas are informed of reasons and offered the possibility to respond.

The more complicated issue is whether visa denials can be made more effective in deterring corrupt behavior. Here, the effectiveness of this promising tool depends on improvements in two areas: clarity and coordination.

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Measurement Brings Action: The Need for a Global Sexual Corruption Index

Sexual corruption is a scourge, to varying degrees, in almost every country–from immigration officials demanding sex for green cards, to U.N. soldiers using their power to force themselves on refugees or the local population they are supposed to be protecting, to police officers who demand sex in exchange for not arresting someone. The International Association of Women Judges has been trying to bring attention to this “sextortion” problem, with some limited success: Transparency International (TI) describes sextortion as a form of corruption, and last September’s International Anti-Corruption Conference devoted a high-profile session to discussing this issue.

Yet despite this increasing recognition that this sort of sexual corruption is indeed corruption–the abuse of public power for private gain–the major international indexes used to measure corruption, such as TI’s corruption perception index (CPI) (and the underlying studies used to generate the CPI), focus overwhelmingly on material corruption–principally monetary bribery and embezzlement–not the abuse of public power to extort sexual favors from victims. This is a problem: As we have seen over and over again (both in the corruption context, and in other contexts such as the Millennium Development Goals (MDGs)), for better or worse, national-level country ratings drive action. Right now, a country that wishes to improve its global standing on corruption currently has little incentive to tackle sexual corruption. And there is no separate, easy-to-understand metric that calls attention to how well (or poorly) countries are doing, relative to one another, in addressing that problem.

It is time for that to change. It is time to create a Global Sexual Corruption Index. Continue reading