Anti-Corruption

Anti-corruption (or anticorruption) comprises activities that oppose or inhibit corruption. Just as corruption takes many forms, anti-corruption efforts vary in scope and in strategy.

Corruption in the modern era

Corruption used to be a generally accepted phenomenon of the political and economic life. In the 1990s, however, corruption was increasingly perceived to have a negative impact on economy, democracy, and the rule of law, as was pointed out by Kofi Annan. The increased awareness of corruption was widespread and shared across professional, political, and geographical borders. While an international effort against corruption seemed to be unrealistic during the Cold War, a new discussion on the global impact of corruption became possible, leading to an official condemnation of corruption by governments, companies, and various other stakeholders. The 1990s additionally saw an increase in press freedom, the activism of civil societies, and global communication through an improved communication infrastructure, which paved the way to a more thorough understanding of the global prevalence and negative impact of corruption. In consequence to those developments, international non-governmental organizations (e.g. Transparency International) and inter-governmental organizations and initiatives (e.g. the OECD Working group on bribery) were founded to overcome corruption.

Since the 2000s, the discourse became broader in scope. It became more common to refer to corruption as a violation of human rights, which was also discussed by the responsible international bodies. Besides attempting to find a fitting description for corruption, the integration of corruption into a human rights-framework was also motivated by underlining the importance of corruption and educating people on its costs.

Legal framework

In national and in international legislation, there are laws interpreted as directed against corruption. The laws can stem from resolutions of international organizations, which are implemented by the national governments, who are ratifying those resolutions or be directly be issued by the respective national legislative.

Laws against corruption are motivated by similar reasons that are generally motivating the existence of criminal law, as those laws are thought to, on the one hand, bring justice by holding individuals accountable for their wrongdoing, justice can be achieved by sanctioning those corrupted individuals, and potential criminals are deterred by having the consequences of their potential actions demonstrated to them.

International law

Approaching the fight against corruption in an international setting is often seen as preferential over addressing it exclusively in the context of the nation state. The reasons for such preference are multidimensional, ranging from the necessary international cooperation for tracing international corruption scandals, to the binding nature of international treaties, and the loss in relative competitiveness by outlawing an activity that remains legal in other countries.

OECD

Main article: OECD Anti-Bribery Convention

The OECD Anti-Bribery Convention was the first large scale convention targeting an aspect of corruption, when it came in 1999 into force. Ratifying the convention obliges governments to implement it, which is monitored by the OECD Working Group on Bribery. The convention states that it shall be illegal bribing foreign public officials. The convention is currently signed by 43 countries. The scope of the Convention is very limited, as it is only concerned with active bribing. It is hence more reduced than other treaties on restricting corruption, to increase - as the working group's chairman Mark Pieth explained - the influence on its specific target. Empirical research by Nathan Jensen and Edmund Malesky suggests that companies based in countries that ratified the convention, are less likely to pay bribes abroad. The results are not exclusively explainable by the regulatory mechanisms and potential sanctions triggered through this process but are equally influenced by less formal mechanisms, e.g. the peer reviews by officials from other signatories and the potentially resulting influences on the respective country's image. Groups like TI, however, also questioned whether the results of the process are sufficient, especially as a significant number of countries is not actively prosecuting cases of bribery.

United Nations

Main article: United Nations Convention against Corruption

20 years before the OECD convention was ratified, the United Nations discussed a draft for a convention on corruption. The draft on an international agreement on illicit payments proposed in 1979 by the United Nations Economic and Social Council did not gain traction in the General Assembly, and was not pursued further. When the UN Office on Drugs and Crime (UNODC) presented its draft of the United Nations Convention against Corruption (UNCAC) in 2003, it proved more successful. UNCAC was ratified in 2003 and became effective in 2005. It constitutes an international treaty, currently signed by 186 partners, including 182 member states of the United Nations and four non-state signatories. UNCAC has a broader scope than the OECD Anti-Bribery Convention, as it does not exclusively focus on public officials but includes inter alia corruption in the private sector and non-bribery corruption, like e.g. money laundry and abuse of power. UNCAC also specifies a variety of mechanisms to combat corruption, e.g. international cooperation in detecting and prosecuting corruption, the cancellation of permits, when connected to corrupt behavior, and the protection of whistleblowers.

Regulations by continental organisations

America

Main article: Inter-American Convention Against Corruption

The first convention adopted against corruption by a regional organization was the Organization of American States' (OAS) Inter-American Convention Against Corruption (IACAC). The Convention, which targeted both active and passive bribing, came into force in 1997. It is currently ratified by all 34 active OAS-Member States.

Europe

In 1997 the European Union (EU) adopted the EU Convention against corruption involving officials, which makes it illegal to engage in corrupt activities with officials from the European Union's administrative staff, or with officials from any member state of the EU. It forces the signatories to outlaw both active and passive bribing which involves any aforementioned official. Liability for unlawful actions is extend to the heads of those entities, whose agents were bribing officials.

European states also ratified the Council of Europe's Criminal and Civil Law Convention on Corruption, which were adopted in 1999. The former was an addition extended by passing the Additional Protocol to the Criminal Law Convention on Corruption. The two conventions on criminal law were signed by Belarus and all Council of Europe members, with the exception of Estonia, which abstains from the Additional Protocol. The Criminal Law Convention is currently by 48 States, while the Additional Protocol is signed by 44 countries. Both conventions are aiming at the protection of judicial authorities against the negative impact of corruption.

The convention on Civil Law is currently ratified by 35 countries, all of which are, with the exception of Belarus, members of the Council of Europe. As the name implies, it requires the States Parties to provide remedies for individuals materially harmed by corruption. The individual who was negatively impacted by an act of corruption is entitled to rely on laws to receive compensation from the culprit or the entity represented by the culprit, explicitly including the possibility of compensation from the state, if the corrupt deed was perpetrated by an official.

Africa

Main article: African Union Convention on Preventing and Combating Corruption

Since its launch in 2003, the African Union's Convention on Preventing and Combating Corruption was ratified by 38 States Parties. It represents the consensus of the signatories on minimal standards for combating corruption. The resolution was criticized in the Journal of African Law for disregarding other aspects of the rule of law, like e.g. data protection and the presumption of innocence.

National law

While bribing domestic officials was criminalized in most countries even before the ratification of international conventions and treaties, many national law systems did not recognize bribing foreign officials, or more sophisticated methods of corruption as illegal. Only after ratifying and implementing above mentioned conventions the illegal character of those offenses was fully recognized. Where legislation existed prior to the ratification of the OECD convention, the implementation resulted in an increased compliance with the legal framework.

Corruption is often addressed by specialized investigative or prosecution authorities, often labelled as anti-corruption agencies (ACA) that are tasked with varying duties, subject to varying degrees of independence from the respective government, regulations and powers, depending on their role in the architecture of the respective national law enforcement system. One of the earliest precursors of such agencies is the anti-corruption commission of New York City, which was established in 1873. A surge in the numbers of national ACAs can be noted in the last decade of the 20th and the first decade of the 21st century.

United States

Already at the foundation of the United States of America discussions on the possibility of preventing corruption were held, leading to increased awareness for corruption's threads. Article 1, Section 9 of the Constitution can be seen as an early anti-corruption law, as it outlawed the acceptance of gifts and other favors from foreign governments and their representatives. Zephyr Teachout argued that giving and receiving presents held an important role in diplomacy but were often seen as potentially dangerous to a politician's integrity. Other early attempts to oppose corruption by law were enacted after the end of World War II. The Bribery and Conflict of Interest Act of 1962 for example regulates the sanctions for bribing national officials, respectively the acceptance of bribes by national officials, and the abuse of power for their personal interest. The Hobbs Act of 1946 is another law frequently applied by US-american prosecutors in anti-corruption cases. Prosecutors are using the act by arguing that the acceptance of benefits for official acts qualifies as an offence against the act. Less frequently laws to prosecute corruption through auxiliary criminal activities include the Mail Fraud Statute and the False Statements Accountability Act.

In 1977 the United States of America adopted the Foreign Corrupt Practices Act (FCPA), which criminalised corrupt interactions with foreign officials. Since its implementation, the law served to prosecute domestic and foreign companies, who bribed officials outside of the United States. As no other country implemented a similar law up to the 1990s, US-American companies faced disadvantages for their global operations. In addition to the legal status of corruption abroad, many countries also treated bribes as tax-deductible. Through applying the law to companies with ties to the United States and by working on global conventions against foreign bribery, the government of the US tried to reduce the negative impact of FCPA on US-American companies.

Besides FCPA additional laws were implement that are directly influencing anti-corruption activities. Section 922 of the Dodd–Frank Wall Street Reform and Consumer Protection Act for instance extents the Securities Exchange Act of 1934 by a new Section 21F that protects whistleblowers from retaliation and grants them financial awards them when collaborating with the Securities and Exchange Commission (SEC). Conway-Hatcher et al. (2013) attributed an increase the number of whistleblowers, who are reporting to SEC, inter alia on corruption incidents to the provision.

The TI's last report on enforcement of the OECD Convention against bribery published in 2014 concluded that the United States are complying with the convention.

United Kingdom

The United Kingdom was a founding member of the OECD working group on bribery and ratified the Anti-Bribery Convention, but faced significant problems in complying to its findings and the convention. It was severely affected by the Al-Yamamah arms deal, in which the British company BAE Systems faced allegations of having bribed members of the Saudi royal family to facilitate an arms deal. British prosecution of BAE Systems was stopped after an intervention by than Prime Minister Tony Blair, which caused the OECD working group to criticize the British anti-corruption laws and investigations.

The UK Bribery Act of 2010 was implemented in 2010 and replaced all former bribery-related laws in the United Kingdom. It is targeting bribery and receiving bribes, both towards national and foreign public officials. Furthermore, it is assigning responsibility to organizations whose employees are engaging in bribing and hence obliges companies to enforce compliance-mechanisms to avoid bribing on their behalf. The Bribery Act goes in many points beyond the US-American FCPA, as it also criminalizes facilitation payments and private sector corruption inter alia. Heimann and Pieth are arguing that British policy makers supported the Bribery Act to overcome the damage in reputation caused by the Al-Yamamah deal. Sappho Xenakis and Kalin Ivanov on the other hand claim that the negative impact on the UK's reputation was very limited.

TI stated in 2014 that the United Kingdom fully complied to the OECD Convention against Bribery.

Canada

Canada remained one of the last signatories of the OECD-convention on bribery that did not implement its national laws against bribes for foreign officials. While the Corruption of Foreign Public Officials Act (CFPOA) was passed in 1999, it was often not utilized to prosecute foreign bribery by Canadian companies, as the bill had a provision that the act of bribery had to have a "real and substantial link" with Canada. Such provision was canceled in 2013 by the Bill S-14 (also called Fighting Foreign Corruption Act). Bill S-14 additionally banned facilitation payments and increased the possible punishment for violating CFPOA. Increasing the maximum prison sentence for bribery to 14 years, was one of the increases in sanctioning. According to TI's report from 2014, Canada is moderately enforcing the OECD Convention against Bribery.

China

In the wake of economic liberalization, corruption increased in China, as anti-corruption laws were insufficiently applied. The anti-corruption campaign that started in 2012, however, changed the relation towards corruption, leading to increased press coverage of the topic and a sharp increase in court cases dedicated to this offense. The campaign was primarily led by the Central Commission for Discipline Inspection (CCDI), an internal body of the Communist Party and secondarily by the People's Procuratorate. CCDI cooperated with investigative authorities, e.g. by passing incriminating material, detected by its internal investigation, to prosecutors.

The underlying legal regulations for the campaign is rooted in provisions of the Anti-Unfair Competition Law and the criminal law.

Japan

After signing the OECD-Convention on Combating Bribery of Foreign Public Officials, Japan implemented the Unfair Competition Prevention Act (UCPA) to comply with the convention. The law states that it is illegal to bribe foreign public officials. Negative consequences can be faced by the individual who was offering bribes and by the company on whose behalf the bribes were offered. The Company Act also enables the punishment of senior management, if the payment was made possible by their negligence. TI criticized Japan in 2014 for not enforcing the law, hence complying to the convention only in paper. A study by Jensen and Malesky from 2017 could nevertheless provide empirical evidence that Japanese companies are less involved in bribery than companies based in those Asian countries that did not sign the convention.

Governmental anti-corruption beyond the law

Prevention of corruption

Values education is occasionally believed to be a possible tool to teach about the negative effects of corruption and to create resilience against acting in a corrupt manner, when the possibility of doing so arises. Another stream of thought on corruption prevention is connected to the economist Robert Klitgaard, who developed an economic theory of corruption that explains the occurrence of corrupt behavior by producing higher gains than the assumed punishment it might provoke. Klitgaard accordingly argues for approaching this rational by increasing the costs of corruption for those involved by making fines more likely and more severe.

Good governance

As corruption incidences often happen in the interaction between representatives of private sector companies and public officials, a meaningful step against corruption can be taken inside of public administrations. The concept of good governance can accordingly be applied to increase the integrity of administrations, decreasing hence the likelihood that officials will agree on engaging in corrupt behavior. Transparency is one aspect of good governance. Transparency initiatives can help to detect corruption and hold corrupt officials and politicians accountable.

Another aspect of good governance as a tool to combat corruption lies in the creation of trust towards state institutions. Gong Ting and Xiao Hanyu for instance argue that citizens, who have a positive perception of state institutions are more likely to report corruption related incidents than those, who espress lower levels of trust.

Sanctions

Even though sanctions seem to be underwritten by a legal framework, their application is often lying outside of a state-sponsored legal system, as they are frequently applied by multilateral development banks (MDB), state agencies, and other organizations, who are implementing those sanctions not through applying laws, but by relying on their internal bylaws. World Bank, even though reluctant in the 20th century to use sanctions, turned into a major source of this specific kind of applying anti-corruption measures. the involved MDBs are typically applying an administrative process that includes judicial elements, when a suspicion about corruption in regard to the granted projects surfaces. In case of identifying a sanctionable behavior, the respective authority can issue a debarment or milder forms, e.g. mandatory monitoring of the business conduct or the payment of fines.

Public sector procurement

Excluding companies with a track record of corruption from bidding for contracts, is another form of sanctioning that can be applied by procurement agencies to ensure compliance to external and internal anti-corruption rules. This aspect is of specific importance, as public procurement is both in volume and frequency especially vulnerable for corruption. In addition to setting incentives for companies to comply with anti-corruption standards by threatening their exclusion from future contracts, the internal compliance to anti-corruption rules by the procurement agency has central importance. Such step should according to anti-corruption scholars Adam Graycar and Tim Prenzler include precisely and unambiguously worded rules, a functional protection and support of whistleblowers, and a system that notifies supervisors on an early base about potential dangers of conflicts of interest or corruption-related incidents.

Civil society

Michael Johnston, among others, argued that non-governmental Organisations (NGOs), Civil Society Organizations (CSOs), and the media can have an efficient influence on the level of corruption. More over, as precise and comprehensive definitions of corrupt actions are lacking, the legal perspective is structurally incapable of efficiently ruling out corruption. Combined with a significant variety in national laws, frequently changing regulations, and ambiguously worded laws, it is argued that non-state actors are needed to complement the fight against corruption and structure it in a more holistic way.

Ensuring transparency

An example for a more inclusive approach to combating corruption that goes beyond the framework set by lawmakers and the foremost role taken by representatives of the civil society is the monitoring of governments, politicians, public officials, and others to increase transparency. Other means to this end might include pressure campaigns against certain organisations, institutions, or companies. Investigative journalism is another way of identifying potentially corrupt dealings by officials. Such monitoring is often combined with reporting about it, in order to create publicity for the observed misbehavior. Those mechanisms are hence increasing the price of corrupt acts, by making them public and negatively impacting the image of the involved official. One example for such strategy of combating corruption by exposing corrupt individuals is the Albanian TV-show Fiks Fare that repeatedly reported on corruption by airing segments filmed with hidden cameras, in which officials are accepting bribes.

Education on corruption

Another sphere for engagement of civil society is the prevention by educating about the negative consequences of corruption and a strengthening of ethical values opposing corruption. The biggest organization in the field of civil societal opposition towards corruption is the globally active NGO Transparency International (TI). NGOs are also providing material to educate practitioners on anti-corruption. Examples for such publications are the rules and suggestions provided by the International Chamber of Commerce (ICC), the World Economic Forum (WEF), and TI. Persistent work by civil societal organizations can also go beyond establishing a knowledge about the negative impact of corruption and serve as way to build up political will to prosecute corruption and engage in counter-corruption measures.

Non-state actors in the field of asset recovery

Main article: International asset recovery

One prominent field of activism for non-state actors (NSAs) is the area of international asset recovery, which describes the activity of returning property to its legitimate owners after it was illegally acquired through corrupt actions. The process describes the whole procedure from gathering information on the criminal offence that initiated the transfer of assets, over their confiscation to their return. While recovery is mandated by UNCAC, it is not an activity singularity conducted by governments but attracts actors with different backgrounds, including academia, the media, CSOs, and other non state actors. In this field of anti-corruption activism representatives of the civil society are often taking a different stance than in other areas, as they are regularly consulted for assisting administrations with their respective expertise and are hence enabling state actions. Such strong role of NSAs was also recognized by UNCAC's States Parties.

Corporate anti-corruption approaches

Compliance

Main article: Compliance

Instead of relying purely on deterrence as suggested by Robert Klitgaard (see section on prevention), economists are pursuing the implementation of incentive-structures that reward compliance and punishes the non-fulfillment of compliance rules. By aligning the self-interest of the agent with the societal interest of avoiding corruption a reduction in corruption can be achieved.

The field of compliance can generally be perceived as an internalization of external laws in order to avoid their fines. The adoption of laws like the FCPA and the UK Bribery Act of 2010 accordingly strengthened the importance of concepts like compliance, as they made fines for corrupt behavior more likely and increased the financial burden of those fines. When a company is sued because its employers engaged in corruption, a well-established compliance system can in addition serve as a proof that the organization attempted its best to avoid those acts of corruption. Fines might accordingly be reduced, which hence incentivizes the implementation of an efficient compliance system. The relevance of this approach can be underlined by 2012-case, when the US-authorities decided not to prosecute Morgan Stanley in a case of bribery in China under FCPA-provisions, due to its compliance program.

Collective Action

Besides ICC, other representatives of the private sector are also prominently engaging in anti-corruption activism. While the aforementioned concept of compliance is used by individual companies to ensure that all employees are obliging to the legal framework concerning corruption, collective action is another strategy to combat corruption that originates in the private sector. The idea steams from the academic analysis of the so-called Prisoner's Dilemma in game theory and focuses on establishing rule-abiding practices that are beneficial to every stakeholder in the respective industry, even though every and each stakeholder might have an incentive to circumvent the specific anti-corruption rules unilaterally. TI firstly floated a predecessor of modern collective action initiatives by introducing its concept of Islands of Integrity, respectively Integrity Pacts beginning in 1999.

In the environment of combating corruption, collective action often takes the form of collectively agreed anti-corruption compliance measures. One example for such collective action is the Wolfsberg Group and in particular its Anti-Money Laundering Principles for Private Banking and Anti-Corruption Guidance, requiring the member banks to adhere to several principles directed against money laundry and corruption. The mechanism is designed to protect individual banks from negative consequences for complying with strict rules, by collectively enforcing those regulations. The Wolfsberg Group in addition serves as a back-channel for communication between the compliance officers of the participating banks. Also WEF's initiatives against corruption can be seen in this framework. Other initiatives in the field of collective action include the Extractive Industries Transparency Initiative (EITI), Construction Sector Transparency Initiative/Infrastructure Transparency Initiative (CoST), or International Forum on Business Ethical Conduct (IFBEC).

The B20-groups policy interventions are another form of engaging in the anti-corruption discourse, as the members of this group are attempting to support the G20 in offering their insight as business leaders, also in regard to strengthening anti-corruption policies, e.g. transparency in government procurement or more comprehensive anti-corruption laws. One tangible outcome of the B20 meetings was the discussion (and implementation as a test case in Colombia) of High Level Reporting Mechanisms (HLRM), which should implement ombudsman offices at high-level government positions for companies to report their corruption-related experience.

Implementing anti-corruption measures on the firm-level

Sylvie Bleker-van Eyk from VU University Amsterdam sees value in the implementation of strong compliance departments in the respective company. Fritz Heimann and Mark Pieth are described the environment where those departments are working, as being in a best cased monitored from outside experts. Another measure that - according to Heimann and Pieth - supports the work of compliance officers is when the company is joining collective action initiatives. Instruments like codes of ethics can serve as underlying documents to promote support for anti-corrupt corporate policies. Seumas Miller et al. (2005) also stress the process of reaching the aspired result, which should include an open discussion among the employees of a company, in order to implement steps that are approved by consent inside of the company. Such shift in culture can be implemented through and accompanied by exemplary behavior by top management, regularly conducted training programs on anti-corruption and a constant monitoring of the development in those sections.

In culture

Main article: International Anti-Corruption Day

Since 2003, when the United Nations established the International Anti-Corruption Day, this day is annually observed on December 9 to underline the importance of anti-corruption and as a visible sign for anti-corruption campaigns.

Sources

• Rose, Cecily (2015). International Anti-Corruption Norms. Oxford University Press. ISBN 978-0-19-873721-6. OCLC 908334497. Search this book on
• Stukalo, Alexey, ed. (2016). OSCE Handbook on Combating Corruption. Vienna: Organization for Security and Co-operation in Europe. ISBN 978-92-9234-192-3. OCLC 964654700. Search this book on
• Heimann, Fritz; Pieth, Mark (2018) [2017]. Confronting Corruption. Oxford University Press. ISBN 978-0-19-045833-1. OCLC 965154105. Search this book on

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