Monday Nov 17, 2014
By Elizabeth K. Spahn | Monday, November 17, 2014 at 7:28AM, FCPA
With most enforcement pressure bearing down on corporate supply side bribe payers, it is no surprise that the business community feels beleaguered. The fundamental unfairness is of course the impunity with which bribe takers operate, a frequent topic on the FCPA Blog.
Recent developments increasing enforcement pressure on the demand side of kleptocratic bribe takers should be welcome news. The notorious Obiang asset seizures are but one example of the new reality: looting a nation and moving the assets abroad is no longer a risk free exit strategy for kleptocrats.
Recovering stolen assets stashed abroad (usually in wealthy countries) was one of the most important aspects of the U.N. Convention Against Corruption for developing nations. On the 15th anniversary of the World Bank’s Integrity Vice Presidency, it has provided, in conjunction with the U.N. Office of Drug Control, very important assistance for governments seeking to recover looted assets secreted abroad.
Public Wrongs, Private Actions is a free online publication which provides a concise overview of civil actions to recover stolen assets.
Written by an all-star team including Jean Pierre Brun, Pascale Helene Dubois and Jeanne Hauch among others, the advice is eminently practical and realistic. One of the consultants, the always colorful and blunt Ed Davis, is a particular favorite of mine. Because of the difficulties of multi-jurisdictional criminal proceedings, the civil action option is crucial for any nation considering asset recovery to consider.
How should a nation seeking to repatriate stolen assets through a civil action go about hiring an attorney? What are the possible fee structures? Check out Chapter 2, which includes specific factors to consider as well as red flags that the attorney(s) may not be up to the job.
Investigative tools are examined in Chapter 5, including all-important measures for freezing the suspect assets. Tools for obtaining international cooperation in preserving and producing evidence are found in Chapter 6.
How much money is likely to be recovered and methods for calculating damages is in Chapter 7, and most importantly enforcing the judgment and actually collecting the money is discussed in Chapter 8.
Public Wrongs, Private Actions is a timely addition to the growing literature of the global anti-corruption movements. It will provide helpful guidance for nations seeking justice. With its six excellent case studies, it also provides uniquely interesting teaching material for all those new anti-corruption courses. I’m looking forward to an opportunity to use it in one of my courses.
Two topics deserve further discussion in other posts. First, the question of due process and whether targeted assets (and their putative owners) are sufficiently protected by civil rather than criminal evidentiary standards. The second topic involves the dangers of using asset recovery mechanisms as a weapon of retribution against political opponents.
Elizabeth Spahn is a contributing editor of the FCPA Blog. She served as professor of law at New England Law | Boston from 1978 until 2014 where she taught anti-corruption law, constitutional law, first amendment law and employment law. She is currently Professor of Law Emerita.