13.  TRANSNATIONAL CORRUPTION

 

ARBITRATION AND CORRUPT PRACTICES:

THOUGHTS ON INTERNATIONAL FALSE CLAIMS LAW

Draft of October 26, 2008

In the last decade of the 20th century, many nations began to align themselves with the American policy expressed in the 1974 Foreign Corrupt Practices Act that imposes criminal punishment on citizens who bribe officers of foreign governments.[1]  The emerging international campaign had its origins in the Asian financial crisis of the 1990s.  That event elevated interest in international regulation of trade to provide greater stability in developing economies.  The United States was especially interested in persuading other nations to regulate transnational bribery in order to level the playing field for American firms subject to their own criminal law.  As a result of its urging and concerns heightened by the crisis, the Organization for Economic Cooperation and Development (OECD) (a group of nations including the United States and supported by the International Chamber of Commerce) in 1997 promulgated a new international Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

This OECD Convention obligates signatory nations to enact criminal laws �functionally equivalent� to those prescribed and to cooperate with the enforcement efforts of other signatory nations.[2]  In support of the latter obligation, a system of private peer review was established by OECD; it subjects signatory nations to periodic reviews by teams of specialists from at least two other states.[3]  One substantive difference between the Convention and the FCPA in that the former does not forbid campaign contributions to foreign candidates, as the FCPA does.  Another is that the Convention does not obligate signatory nations to enact accounting and record-keeping standards corresponding to those enforced in the United States by its Securities Exchange Commission.

The 1997 Convention marked the beginning of an international movement.  Much energy and rhetoric is now being expended around the globe in the campaign to protest and deter transnational corrupt practices.  The campaign can be seen and heard in such venues as the International Monetary Fund, the World Bank, the United Nations, the International Chamber of Commerce, the International Bar Association and institutions such as Transparence International and Global Witness that rate the corruption of governments and courts.  Support has recently been expressed by German observers concerned that German firms engaged in corruption abroad may have brought the practices home, i.e., that �globalization has become a motor for corruption in Germany.�[4]

The American FCPA was most recently re-enacted in 1998 as the International Anti-Bribery and Fair Competition Act[5] in order to bring it law into line with the new international Convention.[6]  One change of substance made for this purpose was to legitimate �grease,� i.e. small rewards or tips to lower-ranking officers �to expedite or to secure the performance of a routine governmental action.�[7]  At the lower levels, grease may be indispensable to the operation of some impoverished governments.[8]  Another reform was to extend the law to forbid payments to officials of �public international organizations.�[9]  And foreign nationals working for American firms were brought within the group subject to criminal liability for illicit payments or officers.  In 2006, President Bush took the additional step of declaring that foreign citizens convicted of corruption would not be allowed to take refuge in the United States.[10]  But those working for foreign subsidiaries of American firms are still not included, leaving open a means of evasion that remains in use.

As of 2007, thirty-six nations had ratified this OECD Convention including the governments of most of the major players in international commerce.[11]  Also in 1997, the Organization of American States promulgated the Inter-American Convention Against Corruption;[12] it is even more explicit in requiring enactment of specified criminal laws.  In 2002, the Council of Europe�s Criminal Law Convention on Corruption entered into force, with forty-six signatories.[13]  In 2003, the African Union opened for signature its similar convention.[14]  In 2006, the European Union adopted a resolution calling for the return of assets of illicit origin to nations victimized by corrupt practices.[15]

Also in 2003, the United Nations opened its Convention Against Corruption[16] negotiated by the UN Office on Drugs and Crime in Vienna.  It has been ratified by over one hundred nations and is also now in force.  Its general tone is reflected in Article 17:

Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the abuse of functions or position, that is, the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity.

A similarly tentative tone is expressed in the UN Convention�s suggestions that each State Party take action to proscribe deliberate concealment of bribes[17] or obstruction of justice,[18] and provide for civil liability �if necessary.�[19]  It has been said that this UN Convention is to be a �focal point� of the United States� campaign against corruption.[20]


 

Public Enforcement of the Conventions

One may admire the sincere efforts of all those who have secured the promulgation and ratification of these international conventions and yet question whether they are effective in serving their stated purpose.  There is not yet a thorough empirical study revealing an effect on the realities of weak governments, but the available data has led to a conclusion that �enforcement must be re-energized.�[21]

The problems are obvious.  Are public prosecutors in the nations signing a convention likely to prosecute their fellow nationals or local firms in order to protect the integrity of a foreign government?  Fellow citizens paying a bribe to a foreign official in order to secure a contract or other benefits that will indirectly serve the interests of their fellow nationals or to serve some other national interest may be viewed by others as patriots, not criminals.  How much effort can prosecutors reasonably be expected to expend investigating possible violations of such crimes committed outside their own territorial jurisdiction?  Indeed, how effective can investigation be when the firms to be regulated as not subject to strict accounting requirements?  And how much money will impoverished governments facing competing demands on very scarce public resources appropriate to fund such investigations and prosecutions?  Can the system of peer review established by the OECD secure adequate answers to these questions?  And when impoverished nations invest the needed resources and moral commitment to accuse and convict their officials and the foreign nationals who bribed them, can they expect that OECD nations in which the convicted foreigners reside will assist in imposing the needed punishments on their own countrymen?

The weakness of the global resolve to punish foreign corrupt practices through criminal laws enforced by public servants has been on display in numerous places.  Prosecutors in Lesotho, with the support of the World Bank, have recently sought to punish Canadian, French, and Italian nationals and their firms for corrupt practices related to the Lesotho Highlands Water Project.  Convictions resulted in penalties imposed on some subsidiary corporations, but convicted individuals remain at large.  OLAF, the anti-fraud office of the European Union did supply some data on the corporate defendants, but other help to Lesotho has not been forthcoming.[22]  This event is discouraging to prosecutors in developing nations who need to consider competing needs for their scarce professional resources.

And in 2001, the United Kingdom, having enacted its criminal law as required by the new international convention, initiated in 2004 an inquiry into bribes allegedly paid by BAE Systems, a British weapons firm, to secure contracts with the government of Saudi Arabia.  In November 2006, it was reported that Saudi Arabia would break diplomatic relations with the United Kingdom if the investigation were not dropped.[23]  The next month, the investigation was dropped �after balancing the need to uphold the rule of law with the wider public interest.�  Prime Minister Blair justified the action by calling attention to the needs to secure the help of Saudi Arabia in dealing with Palestinian affairs and to secure thousands of jobs of workers hired to perform the corrupt contract,[24] considerations said to overbalance the rule of law.  Mr. Blair�s successors have been told by the High Court of Justice to reconsider his decision to discontinue the investigation.[25]  But effective deterrence of BAE remains a distant vision.

Even the United States sometimes lacks resolve in the enforcement of its law.  For example, James Giffen, an American citizen, was indicted in 2005 for bribing President Nursultan Nazarbaev of Kazakhstan on behalf of Mobil, Texaco, Phillips/Conoco and BP.  His alleged offense had gained public attention in 2000.  After four years of investigation, Giffen was charged with thirteen counts of violating the FCPA and thirty three counts of money laundering.  It was alleged that fees paid by the oil companies were used by Giffen to purchase an array of luxury items, including millions of dollars in jewelry; fur coats for President Nazarbaev�s wife, Sara, and a daughter, costing nearly $30,000; $45,000 for tuition at an exclusive Swiss high school; and tuition at George Washington University in the U.S. capital for Nazarbaev�s daughter Aliya.  Giffen also allegedly bought an $80,000 Donzi speedboat for one Balgimbaev to present to Nazarbaev and two American snowmobiles for Nazarbaev and his wife.  Giffen has claimed to have been acting as a CIA agent or perhaps a mere �bag man� for the president.  President Nazarbaev, who is a friend of American foreign policy in the Middle East, is severely critical of the prosecution and could perhaps lose his office as a result of it.[26]  Government witnesses are said to have received death threats.  The trial has been repeatedly postponed but will perhaps be held one of these days, or perhaps a guilty plea will be negotiated.

The government of the United States, having so long postponed the prosecution of Giffen is in no position to be severely critical of Prime Minister Blair�s weak commitment to the Rule of Law.  But it has been revealed that Prince Bandar of Saudi Arabia has deposited two billion dollars in an American bank account, money that had apparently been received from BAE Systems.  Consideration could now be given to an American prosecution of the case against that firm.[27]  Perhaps an American prosecution of BAE would pose a less serious political problem for the United States government or the British.

The laws being enacted in diverse nations pursuant to the new Conventions do seem to have a better chance of being enforced when a new regime takes over the corrupted government.  This happened in Nigeria in 2007[28] with the result that the German firm Siemens� Nigerian subsidiary has not only lost a contract but is the object of criminal investigations in both Nigeria and Germany.  The German parent firm is cooperating in the investigation.[29]  The effect of that case on business practices in Nigeria has not yet been demonstrated.

Indeed, in light of experience to date, a skeptic may well doubt that the criminal laws pose a very serious threat to those many firms around the world whose profits seem to depend on their willingness, or at least the willingness of their subsidiaries and officers, to participate in the corruption of the foreign governments to whom they sell goods or services.  Of course, such criminal laws express a moral judgment, and businessmen are not immune to moral suasion.  But as Adam Smith observed long ago,[30] moral constraints lose force as they are applied over greater distances; the moral force of such international law is weak.  And corrupt practices are by definition secret crimes that can be prevented or deterred only by vigorous investigation and forceful legal sanctions.

In recognition of the problem of weak public enforcement, the Council of Europe in 1999 adopted the Civil Law Convention on Corruption.  Its aim, as stated by the Council is to take �into account the need to fight corruption and in particular provide for effective remedies for those whose rights and interests are affected by corruption.�[31]  Its signers are obliged to authorize civil actions for compensation of firms damaged by corrupt practices.[32]  This Convention entered into force in 2003.

With this Convention, the Council of Europe acknowledged the need for an enforcement mechanism imposing real adverse economic consequences on firms that bribe foreign governments and reducing reliance on public prosecutors to enforce criminal laws.  Civil liability is the primary legal sanction deterring firms from bribing one another�s employees in the private sector, and it is the integrity of governments that is the global problem most in need of a plausible threat of civil liability on those who undermine that integrity.

While the Civil Law Convention is a step forward, there is as yet no report of civil actions against offenders.  Primary attention seems to be given to the possible invalidation of contracts tainted by corruption as the civil sanction to be imposed.  There appears to be no effort to date to bring the Council of Europe into line with the law of the United States recognizing bribery of foreign officials by American firms as a tort[33] remediable under the federal RICO or the common law of American states.[34]

The Possibility of Private Enforcement: False Claims Law

At the risk of revealing cultural arrogance, it is the aim of this essay to suggest the possible internationalization of law making corrupt practices a tort.  A model for such a scheme is the false claims law enacted in the 18th century by the very first Congress of the United States.  The Continental Congress that had fought the Revolution was frequently victimized by corruption practiced by those who had supplied the revolutionary army.  The founding Congress of the United States knew that they would not have an effective array of public prosecutors at its service.  It therefore empowered private citizens to represent the United States in claims against those who defraud it, and gave them an incentive to do so with a substantial share of any recovery resulting from their efforts.[35]  This was not a novel idea.  The reviled King of England had long depended on his private subjects as victims to initiate enforcement of His criminal laws.[36]  And the Republic of India also relies on its citizens to enforce some of its public laws.[37]

The American version of private enforcement of public law was revived in the 19th century as �Lincoln�s Law� to deter fraudulent practices by the suppliers of arms to the Union Army.  The law was explained by one court engaged in its enforcement as one

intended to protect the Treasury against the hungry and unscrupulous host that encompasses it on every side, and should be construed accordingly.  It was passed upon the theory, based on experience as old as modern civilization, that one of the least expensive and most effective means of preventing frauds on the Treasury is to make the perpetrators of them liable to actions by private persons acting, if you please, under the strong stimulus of personal ill will or the hope of gain.  Prosecutions conducted by such means compare with the ordinary methods as the enterprising privateer does to the slow-going public vessel. [38]

Despite the initiatives of �enterprising privateers,� corruption continued to be a serious problem for the federal government, especially in wartime.  It is said that many American soldiers in Viet Nam were killed with munitions made by the Vietnamese from American bombs that had been dropped from the air and failed to explode.[39]  These experiences and others like it led in 1986 to another strengthening of the law to encourage more private enforcement by civil suits brought against those responsible for corrupt practices.

The present version of this law provides for the recovery of treble damages, with fifteen to twenty-five percent of the recovery to be paid to the private citizen-plaintiff who is described as the relator.  Proceedings under the Act are not criminal proceedings and so, as with other civil actions proof �beyond a reasonable doubt� is not required; a �preponderance of proof� will, if credited, suffice to support a judgment against the defendant. 

The �relators;� must bring to their task some personal knowledge from which a government investigation and claim might be based.[40]  Relators are generally represented by lawyers who are compensated only if they win the case.  These features tend to reduce the likelihood of frivolous or unfounded claims.  Full use may then be made by the relator and his or her counel of rights familiar to American civil litigation: to compel disclosure of possible evidence[41] and to compel non-party witnesses to supply their evidence as well.[42]  And much of the government�s files are exposed to private investigation as a result of the Freedom of Information Act.[43]

Complaints in such cases are filed in federal courts, but in confidence for sixty days while the Department of Justice is notified and decides whether to exercise its right to intervene and take control of the proceeding.[44]  But even if the government does intervene, the case continues as a civil action and the relator remains a party.[45]  And if the Department of Justice does not intervene, the relator is entitled to maintain the action in the name of the United States.  Such a relator if successful is then entitled to receive at least twenty five percent of the treble damages proceeds, plus reimbursement for costs including attorneys� fees.[46]  But if the relator is unsuccessful in proving the case, there is ordinarily no liability for the legal expenses of the defense.  The relator is also provided with rights safeguarding him or her from retaliation by an employer.[47]

The problem of frauds committed on the public treasury abides.  In 2006, the United States Coast Guard reported that it had spent billions on a worthless fleet of new ships.[48]  But today the largest number of qui tam cases are brought against health care providers accused of overcharging the government for their services.  For example, in 2008, a drug maker settled four similar qui tam claims for $431 million; its liability arose from promotion of its drug for uses that were not medically approved, resulting in its improvident purchase by many patients supported by the federal Medicaid program and thus costing the United States many dollars.[49]

There is anxiety expressed about the frequency of false false-claims.[50]  But the data invoked in support of that complaint is not convincing; the proportion of claims that prevail in false claims cases are close to the average for private civil claims brought in American courts for personal injuries or breach of contract.  Conitngent fee lawyers do not generally pursue claims without significant hope of success.  No doubt the strongest cases are taken over by the Department of Justice, but there is no reason to believe that it has the resources and energy to identify those winning cases without the help of whistle-blowers who may be less risk-averse than are United States Attorneys.  More than a few cases declined by the Department are won by the private contingent-fee lawyers.  There is also the deterrent effect: one assessment is that the Act�s deterrence saves the federal treasury 3.5 billion to 7.0 billion dollars a year.[51]

Notwithstanding the concerns expressed by some observers, the idea of rewarding whistle-blowers who recover money for the public treasury is deeply entrenched in the United States.  In 2006, Congress imposed on health care providers a duty to alert their employees to the false claims law.[52]  It also offered an increase in federal support for the Medicaid program providing health care for the indigent in those states enacting similar legislation.[53]    As a consequence many American states have enacted similar laws.  Also in 2006, the false claims law was extended to the Internal Revenue Code.[54] no longer will the federal government rely solely on the beleaguered and understaffed Internal Revenue Service to detect underpaid taxes.  It may be concluded that the national experience favors Lincoln�s Law as a deterrence of misdeeds by those doing business with the government and as a useful source of public revenue.

Lincoln�s Law as International Law?

Is it possible to imagine an international false claims law that would enable citizens everywhere, even citizens of weak or failing governments, to enforce laws exposing and deterring corrupt practices?  It is not beyond the limits of human imagination to conceive of such a possibility.  It would depend heavily on the power of contract to confer jurisdiction on a forum empowered to entertain claims and render enforceable civil awards favoring not only the treasury of the corrupted government, but also the whistle-blowing citizen and his or her counsel.

The model for such an institution is the International Center for the Settlement of Investment Disputes, an autonomous international institution established by the World Bank under the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States.  It provides an arbitral forum whose jurisdiction is conferred by contract between member governments and those foreign firms with whom they deal.  There are 143 member states who have ratified the ICSID Convention and are thus subject to the Center�s jurisdiction.[55]  There are presently 122 cases pending on ICSID�s docket; all involve disputes between firms engaged in international trade and the member governments with whom they have made contracts.  The Center�s monetary awards are enforceable under the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards that has been ratified by all but a very few nations.[56]

ICSID or a different organ of the World Bank if need be, could, it would seem, establish a separate arbitration process to handle false claims cases brought on behalf of any member state submitting to the jurisdiction.  Claims might be brought by one of that state�s citizens to deter corrupt practices as defined by the OECD or UN Convention.  The member state would be required to impose submission to the jurisdiction as a condition of any contract made with a foreign national or a transnational firm or its subsidiary for the purchase of goods or services.  As an additional condition of the jurisdictional submission, a member state would need to establish reasonable accounting standards to be observed by its public officials and by those international firms with whom they might deal. 

If it is to be effective, the procedure employed by such a false claims arbitration panel would need to include provisions empowering the relator�s private counsel to achieve transparency by exposing pertinent records of the government and its contracting parties, and by examining witnesses under penalty of perjury.  And the arbitral panel would also need the power to render an enforceable monetary award against a firm or person who failed to cooperate with the inquiry conducted by the private counsel.  As constraints on frivolous claims, it would be an appropriate to require the relator at the outset to identify his or her personal source of information that suggests the likelihood of a corrupt practice, and provide that the relator�s counsel should receive no compensation unless the government prevails on the merits of the claim. 

The represented government might be given the choice, as American governments are, of making a timely decision to present its own case.  This would, however, allow a wholly corrupt government to forfeit its claim against those who corrupted it.  A compromise would be to allow the government to join the relator as a co-plaintiff and participate fully in the proceeding as a party.

If the relator�s case were to prevail on behalf of his government, he should be awarded a sum equal to the gain probably and wrongly acquired by a defendant as a result of its corrupt practice as discerned by the arbitrators.  And in addition, the national treasury should perhaps be routinely awarded twice that amount or be reimbursed for its loss on the corrupt transaction, whichever is greater.

What would induce a nation to submit to such an arbitral jurisdiction?  Perhaps some nations might come to welcome this form of deterrence of corrupt practices as a means of increasing the confidence of its own citizens in the integrity of their government.  And perhaps institutions such as the World Bank or the International Monetary Fund might condition their loans on the submission of the debtor government to submit to the jurisdiction of such an arbitral tribunal.

This suggestion is obviously tentative and is presented in utmost deference for the purpose of encouraging serious consideration of the possibility that some form of private enforcement may be essential if the global movement to deter corrupt practices is to achieve a realistic measure of success.


 

[1]  See J. Ndumbe Anyu, The Foreign Corrupt Practices Act: A Catalyst for Global Corruption Reform (2007); Stuart H. Deming, The Foreign Corrupt Practices Act and the New International Norms (2006).

[2]  S. Treaty Doc. 105-43, art. 1.1 (1998).

[3]  Peer review is said to be �at the very heart of OECD.� See, e.g,, Fabrizio Pagani, Peer Review: A Tool For Co-Operation and Change�An Analysis of an OECD Working Method (Sept. 20002), available at http://www.oecd.org (search document title for .pdf) (last visited Oct. 29, 2007).

[4]  So we are told by a German prosecutor.  Carter Dougherty, Germany Battling Rising Tide of Corporate Corruption, New York Times, February 15, 2007 at C1.

[5]  International Anti-Bribery and Fair Competition Act of 1998, 112 Stat. 3302 (1998) codified at 15 U.S.C. 78dd, et seq.  On the state of the law at that time, see Symposium--a Review of the Foreign Corrupt Practices Act on its Twentieth Anniversary: Its Application, Defense and International Aftermath, 18 Nw J Int'l L & Bus 263 (1998); Comment, A Critical Analysis of the Foreign Corrupt Practices Act, 54 Wash. & Lee L. Rev. 229 (1997).

[6]  S. Treaty Doc. No. 105-43, 37 I.L.M. 1, 4 (1998).

[7]  15 U.S.C. �78dd-1(b).  See The Etiquette of Bribery, The Economist, December 23, 2006 at 115 (noting that tactful strategies are used to ensure that bribes go undetected).

[8]  See  J. S. Nye, Corruption and Political Development, 61 Am. Pol. Sci. Rev. 417 (1967).

[9]  15 U.S.C. 78dd-1b.

[10]  President�s Statement on Kleptocracy, August 10, 2006, http://www.whitehouse.gov/news/releases/2006/08/20060810-1.html.

[11]  Public Procurement: Spotting the Bribe, OECD Observer, April 2007, at http://www.oecdobserver.org/news/fullstory.php/aid/2170/Public_procurement:_Spotting_the_bribe.htm (last visited Sept. 5, 2007).

[12]  Deming, note 1, at 101-104.

[13]  Id. at 105.

[14]  See African Union Convention on Combating Corruption, July 11, 2006, http://www.africaunion.org/Official_documents/Treaties_%20Conventions_%20Protocols/Convention%20on%20Combating%20Corruption.pdf (last visited Mar. 24, 2007).

[15]  A/C.2/61/L.53; for the official explanation see http://www.europa-eu-un.org/articles/en/artcile_6571_en.htm

[16] U.N. Convention Against Corruption, 31 Oct. 2003, Available at http://www.unodc.org/unodc/crime_convention_corruption.html.

[17]  Article 24.

[18]  Article 25.

[19]  Article 26.

[20]  Press Release, Department of State Bureau for International Narcotics and Crime Control, Press Release, December 14, 2004 available at http://www.state.gov/p/inl/rls/other/39714.htm (last visited April 6, 2007).

[21]  Friz Heimann & Gillian Dell, Transparency International Progress Report 2008: Enforcement of the OECD Convention on Combating Bribery of Foreign Officials (2008).

[22] Fiona Darroch, Lesotho Highlands Water Project: Corporate Pressure. On the Prosecution and Judiciary, Transparency International, Global Corruption Report 2007: Corruption in Judicial Systems 87 (Diana Rodriguez ed., 2007).

[23]  David Leppard, Blair Hit By Saudi �Bribery� Threat, Times of London, November 19, 2006.

[24]  Kevin LaCroix, Corrupt Practices, National Security and the Rule of Law, The D&O Diary, http://www.dandodiary.com/2008/04/articles/foreign-corrupy-practices-act/.  On the public reaction to the discontinuarance, srrBarefaced, The Economist, December 23, 2006 at 18; Heather Timmins & Eric Pfanner, Blair Defends Decision to Halt Inquiry Into Saudi Defense Contracts, International Herald Tribune, December 12, 2006 at 12; for a later account, see Alan Corwell, British Contractor Paid Saudi, Reports Say, New York Times, June 6, 2007 at A3.

[25] See Todd Swanson, Note: Greasing the Wheels: British Deficiencies in Relation to American Clarity in International Anti-Corruption Law, 35 Ga. J. Intl. & Comp L. 397 (2007).

[26] Marlena Telvick, Kazakhstan: United States v. James H. Giffen, hhtp://forumkz.addr.com/2004-en/en_forum_03_06_04.htm.  The indictment also alleged that Swiss authorities had begun investigating accounts "nominally owned by offshore companies but beneficially owned, directly or indirectly, by Balgimbaev and Nazarbaev � into which Mr. Giffen had made tens of millions of dollars in unlawful payments" in 1999.�

[27] Nelson D. Schwartz & Lowell Bergman, Payload: Taking Aim at Corporate Bribery: Inquiry Shows A New Reach for an Old Law, New York Times, November 26, 2007 at B1.

[28]  President Umaru Yar'Adua assumed office in March 2007, promising to rid the nation of the squalor of corruption.  A contract with Siemens Nigeria for a supply of circuit breakers was cancelled in November.  Nigeria Suspends Siemens Dealings, BBC News, December 8, 2007. http://news.bbc.co.uk/2/hi/business7130315.stm.

[29]   Nigeria says Siemens to Cooperate in Bribe Probe, Reuters, Feb. 11, 2008, http://www.reuters.com/article/bssindustryMaterialsUtilitiesNews/idUSL11181262008021.

[30]  The Theory of Moral Sentiments 136 (Oxford ed. 1976).

[31]  Council of Europe, Civil Law Convention on Corruption. ch. 1 art. 3, Nov. 4, 1999, http://conventions.coe.int/Treaty/en/Treaties/Html/174.htm (last visited Mar. 24, 2007).

[32]  Council of Europe, Civil Law Convention on Corruption Explanatory Report Article 1(a)(6) (1999)available at http://conventions.coe.int/Treaty/EN/Reports/Html/174.ht 3.

[33]  See generally Civil Consequences of Corruption (Olaf Meyer ed., forthcoming 2008).

[34]  84 Stat.922, 18 U.S.C. 901 et seq.

[35]  A useful account of the early legislation and its colonial antecedents is Note, The History and Development of Qui Tam, 1972 Wash. U. L. Q. 81 (1972).  The subsequent history of the law is recounted in James B. Helmer, Jr., False Claims Act: Whistleblower Litigation 29�61 (3d ed., 2002).

[36] J. F. Stephens, History of Criminal Law in England 493-503 (1883).  That is apparently still the law of England.  In 1994, the parents of murder victim Stephen Laurence prosecuted five persons who refused to testify about his death.  The prosecution failed but became the subject of a popular film, Colour of Justice (1999).

[37]  See Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan, and Bangladesh (2004).

[38] United States v. Griswold, 24 Fed. 361, 366 (D.Ore. 1885)

[39]  Henry Scammell, Giantkillers: The Team and the Law that Help Whistle-Blowers Recover America�s Stolen Billions 148 (2004). A case involving a misfiring of a weapon in Cambodia reached the Supreme Court. Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3 (1975).

[40] 31 U.S.C. 3730(e)(4)(A) (2000).  In 2007, the Supreme Court applied that text to hold that the relator is not entitled to compensation when the case is taken over by the Department of Justice and won on a ground different from that initially advanced by the relator.  Rockwell  International Corp. v. United States, 527 S. Ct. 1397 (2007)

[41]  F. R. Civ. P. 26-37.

[42]  F. R. Civ. P. 45.

[43]  5 U. S.C. 552 (2000).

[44]  It is reported that the United States intervened in 309 cases and declined to do so in 2858 cases filed between 1987 and 2005. Christina O. Broderick, Qui Tam Provisions and the Public Interest: An Empirical Analysis, 107 Colum. L. Rev. 949, 971(2007.  If it intervened, 94% of the cases settled; if it did not, 6% settled.

[45] 31 U.S.C. � 3730(c)(1) (2000).

[46]  31 U.S.C. �3730(d)(2) (2000).

[47]  31 U.S.C. �3730(h) (2000).

[48].  Eric Lipton, Billions Later, Plan to Remake the Coast Guard Fleet Stumbles, N.Y. Times, Dec. 9, 2006, at A1. See also Editorial, Ships That Don�t Dare to Sail, N.Y. Times, Dec. 8, 2006,at A34.

[49]  Shannon P. Duffy, Whistleblowers Receive Awards from Justice Settlement, Law.com, September 30, 2008.

[50]  Broderick, note 25, at 964-980; Bryan Terry, Private Attorneys General v. War Profteers, 30 Seattle L Rev. 809 (2007); Joan H. Krause, �Promises to Keep�: Health Care Providers and the Civil False Claims Act, 23 Cardozo L. Rev. 1363 (2002); Elletta S. Callahan & Terry M. Dworkin, Do Good and Get Rich: Financial Incentives for Whistleblowing and the False Claims Act, 37 Vill. L. Rev. 273 334-335 (1992).

[51]  William L. Stringer, Taxpayers Against Fraud: The 1986 False Claims Act Amendments: An Assessment of Economic Impact 32-36 (1996)

[52]  Section 6032 of the Deficit Reduction Act, 129 Stat. 4.

[53]   Section 6301.

[54]  H.R. 6111 was signed on December 21, 2006  ***.

[55]   Data drawn from its website, http://icsid.worldbank.org /

[56]  Very few nations, and none engaged in substantial trade, have failed to ratify this Convention.  See http://www.uncitral.org/uncitral/en/unictral_texts.arbitration/NYConvention.html. On enforcement, see Enforcing Arbitration Awards under the New York Convention: Experience and Prospects (United Nations 1999), http://www/unictral.org/pdf/english/texts/arbitration/NY-Conv/NYCDay-e.pdf

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