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VIII. Solution 6: International Efforts



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VIII. Solution 6: International Efforts
Solutions need to focus not only on controls inside states where corrupt deals occur but also on international forums. As noted above, reforms in the former category include both more competitive and transparent bidding processes and careful evaluation of what is being bought and sold ex ante to be sure that these choices are not distorted by self-dealing officials. At the international level, reforms should go beyond the weak enforcement mechanisms in existing treaties and contracts. Initiatives need to stress both transparency ex ante and a credible threat ex post. These efforts will do little to constrain low-level corruption that affects people’s daily lives. However, it has the potential to limit high level or “grand” corruption, especially when combined with the structural or institutional efforts described above.
VIII.A. Transparency—From Soft to Hard Law
Voluntary international efforts have concentrated on improvements in transparency. Good examples include the Extractive Industries Transparency Initiative (EITI) and the efforts by Transparency International—UK to compile country-by-country data on defense contracting.
The Extractive Industries Transparency Initiative (EITI) aims to further greater transparency in corporate/country agreements in the mining, oil, and gas industries.32The EITI does not measure corruption directly. The goal is to permit individuals and advocacy groups to monitor the flow of funds with the aim of benefitting the citizens of countries with valuable resources. The effort grew out of the Publish What You Pay initiative that targeted only multi-national firms. Under EITI countries can become candidate countries and then must propose plans that are compliant with EITI standards. These standards focus on transparent reporting and auditing of payments from firms to countries. Firms that support the initiative must publish what they pay to compliant countries and submit a self-assessment to EITI33 Other organizations may piggyback off the EITI and other ratings in making decisions about funding and other forms of engagement (de Michelle, 2011).
The EITI is moving from soft to hard law in the US. One section of the US Dodd-Frank Act34 requires firms in extractive industries to report payments under rules similar to those governing the Extractive Industries Transparency Initiative. It imposes financial disclosure requirements on all resource extraction companies listed on U.S. stock exchanges.35 Such resource extraction issuers must disclose: “(i) the type and total amount of . . . payments made for each project of the resource extraction issuer relating to the commercial development of oil, natural gas, or minerals, and (ii) the type and total amount of such payments made to each government.”36 This statutory provision is unprecedented in requiring disclosure at the project-level, as opposed to data aggregated at the country- or continent-level.37
The TI-UK Defense Industry initiative is an effort to increase disclosure and encourage integrity among defense contractors and government defense ministries.38 It is at an early stage and has had limited success in obtaining country-level data. For example, it asked countries in the OECD and European Union to supply data on the proportion of defense procurement that was single source on the grounds that high levels of single source procurement indicates a corruption risk. To highlight the problems of transparency in defense budgets the project published a report in October 2011 that grouped almost 100 countries by the degree of transparency in their defense budgets. Only about one third were in the top two categories (Transparency International, Defence and Security Program, October 2011, p. 6) In spite of the lack of systematic data, the project’s reports are full of enlightening case studies and practical suggestions for reducing corruption risks based on the experiences they have documented. The program hopes that it can have an impact on industry practice by showing how some countries are setting an example of disclosure and some firms are working to curb kickbacks. They are working with a number of large defense contractors to realize their aims.
Such pure transparency initiatives are a first step, but they will mean little if they are not combined with follow-up mechanisms that permit those who suspect corruption to initiate complaints and to spur government or international bodies to take action. Some proposals have been made along those lines, but none is fully operational. Furthermore, measuring their impact will be difficult given the one-of-kind nature of many resource deals and the indirect nature of the control mechanism.
VIII. B. Legal Remedies—National Courts and International Forums
In a few cases, the courts of one country, such as the US, can be used to address offenses that occur in countries with weak or corrupt judiciaries. Sometimes foreign courts help with recovery of assets held abroad. Even the Swiss have recently frozen questionable assets of deposed rulers and have transferred them to incumbents who claim that the funds belong to the state. The World Bank’s Stolen Asset Recovery Initiative (StAR) aims to assist countries seeking to recovery illicitly appropriated assets, but the task is difficult.39 Sophisticated money launderers mange to hide funds in major financial centers, disguising the funds’ origin though a chain of shell companies. Although domestic actions can be useful in particular cases, especially when aided by information from banking havens, they hardly represent a general solution.40
There are weaknesses on two fronts. First, the treaties and institutions that seek to control international corruption are all voluntary systems in the sense that nation states opt into only if they are willing to accept the treaties’ conditions. Second, domestic courts are seldom willing to take on foreign bribery cases unless they involve domestic firms under the OECD Convention or involve limits on the transfer of assets held in a country’s financial institutions. Law enforcement bodies in one country may extradite accused offenders to face trial, but they do not bring the cases themselves.
That leaves a final set of institutions that may be a future locus of reform—the international arbitration system. That regime is the main international forum for resolving commercial and investor-state disputes. States or state-owned entities are parties to many of these disputes, and corruption has been alleged in a number of cases. However, although recognized as an important issue, corruption remains a vexed and difficult problem for arbitrators, given their insulation from domestic criminal law institutions (Pauwelyn 2011).41 Nevertheless, the institutions that organize arbitrations are stepping gingerly into this arena as litigants seek to void contracts tainted by corruption. As Mark Pieth writes, “Arbitration is no longer an exclusive area of party-interest, especially as far as large infrastructure projects are involved. It is right to consider corruption an issue of (domestic and international) public interest” (Pieth, 2011) .
One study located 38 international arbitration cases that dealt with corruption, but the arbitral system has not yet settled on an appropriate framework (Pauwelyn, 2011; Olaya, 2010). In an ironic twist, the first set of disputes arose between firms and their local intermediaries who allegedly had paid bribes. The firms were seeking to avoid paying their agents on the ground that bribery was illegal, even if they knew that payoffs were taking place (Meyer, 2011). In such cases, arbitrators generally refuse jurisdiction on the ground that they have no authority to resolve criminal allegations. Going beyond disgruntled intermediaries, the arbitral status of contracts allegedly obtained by corruption is unclear, especially because they are plagued by problems of proof. This is unsatisfactory if the complainant has been harmed by the corrupt nature of the deal and if the domestic law enforcement system is dysfunctional and even corrupt. Furthermore, in many cases, neither the host state nor the international investor has an interest in raising corruption charges – even if they can be proved. The exception, which has been arisen in a number of cases, is when a new host government introduces evidence of corruption under the previous regime.42
There are two types of forums. One is the private commercial arbitration regime; the second, the World Bank’s International Center for the Settlement of Investment Disputes (ICSID), only considers cases where investors sue nation states, usually under the provisions of Bilateral Investment Treaties (BITs). In both cases private firms can initiate the arbitration process, but only if they are parties to the contracts in question. Disappointed bidders, or other outsiders to the contract, have no standing. Joost Pauwelyn (2011) argues that BIT provisions requiring “fair and equitable treatment” could be extended to cover corruption. But so far, no cases have made that connection.
This weaknesses in the present system have led to reform proposals that range from the more explicit incorporation of corruption charges into the arbitral process, to the creation of a separate body, either a formal court or another type of arbitral tribunal that would explicitly deal with claims that corruption should void a contract or, at least, lead to its renegotiation. Reform may require structural changes. Paul Carrington, for example, argues for a new international forum to hear cases initiated by outsiders to the deal. In the alternative, he suggests an expanded mandate for arbitrators to accept submissions from amici curiae that provide evidence of corruption (Carrington, 2007; Carrington, 2010).
However, even with this reform, arbitrators could not influence state governance structures directly. They would simply invalidate contracts on the basis of evidence that corruption tainted the original deal. Carrington’s ultimate goal is to increase the cost of paying and receiving bribes. Even if a country’s criminal justice system is weak or corrupted, an arbitral decision that invalidates a contract, or awards damages to a successor government ought to deter kickbacks up front. This deterrent will be most effective in a multi-party democracy or in an autocracy whose leader is aging or losing popular support.
Within existing domestic legal frameworks, corruption charges have been incorporated into the resolution of private law disputes in different ways (Mayer 2011). Litigants can sometimes use the legal system to obtain compensation for their losses, helping to deter corruption in the first place. In the US they have used private rights of action under US securities and anti-trust laws, as well as fiduciary duty class actions, to seek redress. Losing competitors have also claimed unfair competition or tort damages from firms convicted of overseas bribery in the US and the EU.43 This may be a growth area for anti-corruption efforts if domestic courts in industrialized courts prove ready to accept jurisdiction.44 Unfortunately, however, the area is so new and so focused on a set of large-scale international deals that we have no data on its potential impact on the global contracting regime. This is an area where fruitful collaborative efforts between international lawyers and empirical social scientists might have large payoffs.
IX. Conclusion: Options and Cost Benefit Analysis
A weak and corrupted government can undermine efforts to carry out otherwise beneficial policies. Programs designed to help the poor, improve the natural environment, and stimulate economic growth will have little impact and risk inflicting harm.
If possible, the choice of reform options should be driven by data and a thorough cost benefit analysis.45 Information about possible policy initiatives needs to be grounded in valid studies that document the success or failure of policies in a variety of settings. Results in one country can help establish benchmarks for reforms elsewhere. To do this, governments must cooperate with donors in the design of projects that include competent social science evaluations. Unfortunately, evaluation may seem risky both to incumbent politicians who fear objective data and to donors who worry that evidence of failure will undermine their credibility. Even when governments and donors cooperate, studies must comply with social science protocols, including the collection of baseline data, valid study design, and competent statistical analysis. This will require international institutions to design, carry out and monitor pilot programs. Providing information on what works and what does not is impossible without hands-on projects in countries at risk of corruption.
There is an ongoing debate in economics and political science over the best evaluation methods. Nevertheless, there is widespread agreement on the limitations of many current claims for policy efficacy. International Financial Institutions (IFIs), possessing staff expertise, need to do more to incorporate evaluation procedures into projects for governance and anti-corruption reform. This may require them to provide some tailored benefits to governments willing to accept evaluation as part of an aid program and to incorporate the stick of reduced funding if they do not. It is not sufficient merely to provide information about on-going projects; the projects themselves must be set up with built-in evaluation processes.
Assuming that these evaluations locate successful interventions, IFI staff should bring these positive cases to the attention of officials in other countries. At a minimum, IFIs should be information banks that public officials worldwide can turn to for help (Rodrik, 2006).46 IFIs should have a toolkit of options that developing countries can use to develop their domestic strategies. This does not imply that one-size-fits-all. Some countries might well reject particular reforms as incompatible with their own situation, but if they want financial assistance from aid agencies, they should have the burden of explaining why they won’t adopt good governance and anti-corruption reforms shown to work elsewhere. The difficulty, of course, is that corrupt officials and contractors will try to neutralize and undermine programs to improve government accountability and transparency. Representatives of donor agencies may be similarly reluctant to support serious and systematic evaluation, especially after working closely with host governments over the years.
At present, we still do not have a good data on the relative effectiveness of most reform programs. After fifteen years of effort to promote anti-corruption and good governance, it would be valuable to consolidate experience across projects sponsored by aid and lending organizations—sharing successes, failures, and ambiguous cases. A fundamental problem here concerns public information that names countries and projects. Specific context is needed to decide if a program that worked in one country will succeed elsewhere. Domestic policymakers need to know how to evaluate programs that worked in other countries in order to generate local buy-in. Yet, country leaders often object to publicizing projects that will put them in a bad light. Alternatively, incumbent politicians may be too eager to flag the malfeasance of the previous government in the hope of assuring their own reelection. Thus, some evaluations will be easier to accomplish than others, and some political contexts will simply be impossible to use as sites for evaluation studies.
Improved metrics will assist policymaker by estimating the costs and benefits of specific reforms, a task that remains difficult and is rarely undertaken. Unresolved empirical issues limit the value of estimates of the relative cost-effectiveness of different strategies and the ways in which distinct alternatives interact. Cross-country research suggests that the gains from reducing corruption and improving governance are large. The main problem is tracing specific links from particular, concrete policies to desirable outcomes.47 Even the World Bank, which has been a leader in quantifying the costs of the corruption, has been unwilling to organize the data in that fashion.
The few studies that do exist suggest a substantial net benefit for the anti-corruption intervention. In the audit study of Indonesia, Olken (2007) finds that the audit treatment produced a net benefit of $245 to $508 per village, depending on the assumptions being used. The improved road quality, as well as the increased wages received by workers, far outweighed the monetary and opportunity costs of the audit. Yang (2008) finds that privatized pre-shipment inspections increase import duty collections around 15% to 30%. Studies suggest the promise of various impersonal bureaucratic systems of tax collection and service delivery.48 Even assuming that a country must pay the private firm 1% of the value of all imports inspected, the effect of privatization in this sector looks positive— the ratio of import duty improvement to fees paid is around 2.6. The ax and customs reform efforts in several Latin American countries outlined above led to substantial increases in revenue at minimal social cost. On-line procurement systems are another reform that appears to pay for itself although it is not a full response to corruption in procurement.
Even without definitive studies, some options look promising because benefits seem clear and the costs are minimal. Hence, even if the benefits cannot be precisely measured, the rates of return appear large. The release of information to citizens, for example, may require little more than a website or a well-placed newspaper story. And if the estimates from Uganda’s newspaper campaign are correct, added citizen accountability could decrease leakage by 60 percentage points in places where embezzlement is particularly endemic (Reinikka & Svennson, 2011). Civil service reforms, with the exception of wage increases, may require little more than a thoughtful reshuffling of personnel and recruitment practices. Audits and heightened monitoring do require resources but have proven effective in many contexts. These possibilities are summarized in Table 3 along with others that ought to receive more systematic study.
[TABLE 3 ABOUT HERE]
Collectively, improving top-down monitoring and punishment, fostering transparency and citizen involvement, adjusting bureaucratic incentives through civil service reforms, improving the competiveness of government asset sales and large purchases, and privatizing certain government services may provide the shock needed to push a country or sector towards a self-fulfilling cycle of good governance. It is likely that the initiatives would prove most effective when bundled together, signaling a firm commitment to anti-corruption for all would-be corrupt officials.
Obviously, individuals and firms, many with political power, benefit from the status quo and will oppose change. A major challenge for governance reform is to overcome or co-opt entrenched interests. If there has been one collective lesson from decades of anti-corruption reform, it is that political calculations can derail even the most well conceived initiatives. Some reforms may be blocked directly, but equally pernicious are corrupt leaders who pose as reformers—expressing a superficial commitment to good governance as they continue to gain at public expense. A crackdown on low-level corruption may just push the illicit rents up the hierarchy where they can be captured by the top officials.
We conclude with a few thoughts about the relationship between these policy proposals and the international environment. Consider aid and lending. Presently there is an ongoing debate about the value of conditionality in the provision of aid. “Conditionality” in some broad sense is inevitable. International donors must choose where to put scarce funds, and they will consider where the funds will have some positive payoff. A weak state or one with high levels of corruption will be unlikely to manage aid well and so will get less. A state that does receive aid must comply with financial reporting requirements to assure that the funds are not lost to corruption and waste. Such conditionality, however, is less directly intrusive than aid that comes with explicit requirements for institutional reform. This latter type of conditionality has not been notably successful. An alternative is to organize projects that are directly focused on improved governance, but experience here is mixed with some notable failures such as the effort to control the use of the windfall produced by the discovery of natural gas in Chad.
A related problem arises when aid is tied directly to perceptions-based measures of corruption, as has historically been done by the Millennium Challenge Corporation. Such measures rely on expert surveys of the level of corruption in a given country in a given year, which have proven subject to several systematic biases (Treisman, 2007; Kenny, 2006; Seligson, 2006; Olken, 2009).49 At best, these measures are noisy indicators of the level of corruption, and they may fail to capture important policy changes. For example, if anti-corruption agencies successfully prosecute high-level politicians for corruption in Country X, experts may hear of these convictions and perceive the country has become more corrupt, even though it is on the path towards good governance. Perversely, countries that have actually taken a stand against corruption may take a hit on aid allocation because the biases in corruption indices. This problem speaks to the importance of developing richer, more accurate metrics.
We have documented some successes and some failures, but projects that improve governance and oversight seem the place for IFIs and other international donors to put resources. If they do so, however, they need a plausible exit strategy so that external funds and experts can leave with some assurance that the program will continue. A condition of such projects should be a research component that measures progress (or its opposite) by providing information on background conditions, tracking the design and implementation of the reform, and measuring outputs. Donors and country partners would try to quantify inputs and outputs in terms such as the speed and effectiveness of government activities, the satisfaction of citizens, and the distribution of benefits. Sometimes, as in a tax or procurement reform, one can quantify the benefits in terms of additional dollars collected or cost savings, but in other cases, such as more transparent government, the benefits take the form of greater citizen satisfaction and better government accountability. These factors are valuable in their own right and are associated with higher levels of growth and individual well-being, but the precise links from specific policy interventions to outcomes are not well-specified.
Recent discussions of how to allocate foreign assistance to developing countries sometimes conclude that some countries have such poorly functioning institutions that no external aid should be provided because so much of it will be lost. This represents not, as some say, an end to conditionality but is instead conditionality writ large—at the level of the country as a whole, rather than at the level of the program. The best mixture seems to be broad-based decisions about which countries to support with some share of aid taking the form of grants to improve government performance. Outsiders would not micro-manage individual projects, for example, to build roads, support education, provide health care. Instead, they would supply technical assistance that could involve them in a quite deep involvement with the details of government operations. In contrast, policies which try to isolate corrupt countries and individuals from the international community encourage their rulers to descend into paranoia and isolation and are ineffective ways to help the citizens of these countries who are the real victims of corruption. Real reform requires systemic policy initiatives. Corruption is a problem of institutional failure. A “clean hands” policy in which wealthy countries hold themselves aloof from tainted countries and individuals without doing anything actually to address the underlying problems will simply further divide the world into rich and poor blocs.

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