International & Transnational Criminal Law

New Open-Source Global Corruption Course Book

 

I am delighted to present a guest blog post by my friend, Prof. Gerry Ferguson of the University of Victoria Faculty of Law, in which he discusses his new open-access textbook on Global Corruption Law, which is available online from the UNODC website and other sources (listed below). I have examined the book and in my view it will be an excellent and valuable resource, both for teaching and just for familiarizing oneself with the international and major domestic anti-corruption criminal regimes. Warmest congratulations to Gerry on this major accomplishment.

For more on transnational anti-corruption law, see Chapter 7 of our book.

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Almost daily, there are reports of corruption in the news, from private associations and individuals, such as FIFA and Sepp Blatter, to corruption in government officials, such as the resignation of Guatemala’s President Otto Perez Monlina after he was accused of accepting millions of dollars in bribes. Corruption is now an inescapable reality of modern life.

Despite the increasing recognition of corruption, no Canadian law school (except UVic Law starting in September, 2015) has offered a course on global corruption, and relatively few law schools around the world have such a course. My book, Global Corruption: Law, Theory and Practice, was created specifically to address this concern, and to make it easier for professors to offer a law school course on global corruption.

 The genesis of this book can be traced back to the United Nations Office on Drugs and Crime (UNODC), which is the agency responsible for promoting the adoption of and compliance with the UN Convention Against Corruption (UNCAC). Chapter II of UNCAC is focused on Prevention of Corruption. Educating the lawyers, public officials and business persons of tomorrow on anti-corruption laws and strategies is one preventative strategy. Recognizing this, the UNODC set up an Anti-Corruption Academic Initiative (ACAD) to promote the teaching of corruption in academic institutions by collecting and distributing materials on corruption. As a member of the ACAD team, this coursebook is my contribution to that worthy goal. This book is issued under a creative commons license and can be used free, in whole or in part, for non-commercial purposes.

The twelve chapters in this book cover various aspects of corruption, from enforcement of corruption laws to promoting integrity in the public service sector. The first chapter sets out the general context of global corruption: its various forms; its extent and nature; its adverse consequences; problems with measuring corruption; and some of its historical, social, political, and economic dimensions. Each subsequent chapter sets out international standards and requirements in respect to combating corruption – mainly in the UN Convention Against Corruption (UNCAC) and the OECD Bribery of Foreign Officials Convention (OECD Convention). Then the laws of the United States and United Kingdom are set out as examples of how those Convention standards and requirements are met in two influential jurisdictions. Finally, the law of Canada is set out.

In many parts, this book covers the international dimensions of corruption. For example, chapter three lays out extra-territorial jurisdiction and examines a state’s ability to prosecute corruption offences that are committed outside their borders. The chapter also discusses the expansive extra-territorial reach of the US under the Foreign Corruption Practices Act (FCPA).  Additionally, chapter four discusses the international standards for money laundering covered under provisions in the UNCAC, OECD and Financial Action Task Force (FAFT). There are also separate chapters on the international standards for investigating and prosecuting corruption, as well as on criminal, civil and administrative sanctions for corruption. Another chapter deals with the role of corporate lawyers in advising business clients on necessary anti-corruption practices. Finally, there are four chapters dealing with corruption in the public service sector covering conflicts of interests, lobbying, procurement, and whistleblower protections.

While primarily directed to a law school course on global corruption, I expect that this coursebook, or parts of it, will be of interest and use to professors teaching courses on corruption from other academic disciplines and to lawyers and other anti-corruption practitioners. I would be very pleased to hear from users of this book especially in regard to the inevitable errors and omissions that I have made in trying to describe and comment on the vast field of global corruption. 


The book can be found online at any of the sponsors’ websites:

United Nations Office on Drugs and Crime: https://track.unodc.org/Academia/Pages/TeachingMaterials/GlobalCorruptionBook.aspx

International Centre for Criminal Law Reform: http://icclr.law.ubc.ca/global-corruption-law-theory-and-practice

The Canadian Bar Association Anti-Corruption Team: http://www.cba.org/CBA/advocacy/anticorruption/coursebook.aspx

 

 

 

New Lockerbie Suspects

 

CBC is reporting that Scottish and American prosecutors have identified two new suspects in the 1988 Lockerbie bombing, and are seeking the cooperation of the Libyan government to facilitate questioning them. While they have not been identified (in keeping with British practice not to identify suspects before charging them), it has been speculated that they are Abu Agila Mas'ud, whose role was laid out by a US documentary film-maker, and former Qaddafi right-hand man Abdullah al-Senoussi, who is currently facing a death sentence after trial by the new Libyan government. Given the unsettled state of affairs on the ground in Libya, it is not clear whether the cooperation sought will be forthcoming any time soon.

Readers will recall that the bombing of Flight 103, which was headed for New York when it exploded over Scotland, gave rise to an interesting inter-jurisdictional prosecution arrangement whereby the two accused were tried before a Scottish court that was constituted on Dutch soil in The Hague.

Qualified Territorial Jurisdiction & Securities Fraud

 

The US Securities and Exchange Commission (SEC) has issued an interesting settlement decision in a securities fraud case, where the two targets of the investigation were both resident in India. The two individuals were investigated by the SEC for a securities offering fraud and, to escape prosecution, they entered into a settlement agreement with the SEC, under which they accepted certain penalties and restrictions from dealing in securities. Interestingly, the settlement agreement (link above) notes that they don't admit any of matters alleged against them, except the SEC's jurisdiction over both them and the subject matter of the proceedings.

Sounds like a standard phrase, you say? Why is that interesting, you say? Well, consider the facts: the two individuals never left India and ran their fraudulent enterprise entirely by way of a website and social media platforms (Facebook and YouTube, in particular). They clearly intended to target American victims (more about which below), but the entire impact of their scheme on the US appears to be that, at one point, there were about 200 hits per day on their website from the US. Any regulatory or prosecutorial proceedings against them would immediately start to smell of an exercise of extraterritorial jurisdiction, which is often unlawful or at least controversial.

However, as readers of our book know (particularly Chapters 2 and 8), states can assume territorial jurisdiction over cases where, while not all of the impugned conduct took place on the state's territory, there was a certain amount of impact on the state's territory, to the extent that it would be agreeable to other states that the investigating state take jurisdiction. In Canada we would employ the Libman test and say that the government could do this if: 1) there is a real and substantial connection between the conduct of the individuals and Canada's territory; and 2) it would not offend international comity for Canada to assume jurisdiction. The US has a similar approach, as do many states. In international law terms this is known as qualified or extended territoriality.

In paragraph 24 of the decision, the SEC displays what I read as concern with demonstrating that the US actually does have jurisdiction over the case. This is clearly not because it is necessary to do so in the purely domestic context (remember, the individuals have conceded that the SEC "has jurisdiction," which could be read as including territorial jurisdiction), but rather seems designed to demonstrate for outside readers -- say, the government of India? -- that US is within its international legal rights to assume jurisdiction:

The Respondents offered investments in the United States and their conduct took place on U.S. territory. Their investment scheme also was directed at United States investors, and the scheme had foreseeable and substantial effects in the United States. Among other things, the Website used the “.com” domain name for global reach and appeal, was registered claiming a physical location and point of contact within the United States, and contained writing in American English, using American spelling and the “$” sign. Respondents’ related social media sites, directed to attracting and funneling investors to the Website via Facebook, YouTube and GooglePlus, were likewise written in American English and designed to solicit United States investors. By mid-January 2014, the Respondents’ Website had more than 200 visitors per day from the United States.

I don't find the statement that "their conduct took place on US territory" entirely convincing, unless one is willing to accept that individuals from the US visiting the website and, I suppose, the use of US-based social media companies, substantiates the claim. Even then, it's entirely possible that any touching of Facebook, YouTube or Google was in Ireland or elsewhere. However, the issue is not whether "one" would accept this assertion of jurisdiction, but whether India and other states would, since the international legality of these assertions of jurisdiction depends entirely on their acceptance by other states. Given the statement regarding the targeting of US citizens, the use of the $ sign, etc., this looks a bit like an application of the "effects doctrine" which has controversially been asserted by the US in antitrust matters before.

I would be interested to hear what the government of India has to say on the matter, particularly given that this is not just an assertion of qualified territorial jurisdiction on the prescriptive level (ie passing the laws) but also of enforcement jurisdiction, as the individuals were clearly compelled by the force of US law into agreeing to the settlement order. Extraterritorial enforcement jurisdiction is much more likely to be dimly viewed by the states affected. Either way, it's a fascinating view of how extraterritorial jurisdiction is exercised by an entity outside the usual criminal/prosecutorial stable.