The Law and Development Review

The Oil Industry and Africa: The Expanding Reach of the Foreign Corrupt Practices Act

Stuart H. Deming — Tue, 27 Dec 2011 07:32:04 PST

As a statute designed to deter improper inducements to foreign officials in connection with business activities, the enforcement of the Foreign Corrupt Practices Act (FCPA) has over time dramatically increased in its reach. This article examines the reach of the FCPA into Africa with special reference to corrupt practices in the oil industry. Owing to the combined enforcement activities of the US Department of Justice and the Securities and Exchange Commission, it concludes by arguing that the FCPA's impact and potency in the developing world will continue to grow.

Combating the Bribery of Foreign Public Officials: The Impact of the UK Bribery Act 2010

John Hatchard — Wed, 21 Dec 2011 08:51:53 PST

This article examines the potential impact of the UK Bribery Act 2010, with special reference to Africa. The central focus is on the bribery of foreign public officials and bribery within the corporate sector.

Challenges Facing the Use of Human Rights to Address Negative Impacts of Development: The Case of Indonesia

Irene I. Hadiprayitno — Thu, 27 Oct 2011 12:09:54 PDT

The importance of human rights in development is gaining prominence. In concrete settings and contexts, however, contesting development practices with human rights normative standards is controversial. The article outlines this controversy and complexity in Indonesia. It highlights tensions in human rights regulatory frameworks and development policies pertaining to housing and promotions of healthy environments. The main challenge faced by human rights to address development in Indonesia is to understand the complexity of state and market relationship, in designing the process and mitigating the negative impacts of development. Such a complexity is argued to shape the enforcement and susceptibility of international and national human rights laws.

An Empirical Study of China's Participation in the WTO Dispute Settlement Mechanism: 2001-2010

Wei Zhuang — Wed, 12 Oct 2011 14:55:02 PDT

On 11 December 2001, China officially became a Member of the World Trade Organization (WTO) after years of negotiations. The paper shows how a major developing country has used the WTO dispute settlement system by examining China’s participation in the WTO dispute settlement mechanism from its entry through 31 December 2010. It provides a comprehensive analysis of the WTO dispute cases in which China has participated as a complainant, a respondent, or a third party.

When Law Fails: A Theory of Self-Enforcing Anti-Corruption Legislation in Africa

Paul D. Ocheje — Thu, 22 Sep 2011 18:24:21 PDT

The resort to legal measures to combat corruption in Africa is almost universal. But the effectiveness of law in controlling criminal or anti-social behavior is not a given; rather it is contingent. This article argues that, given the peculiarities of the African society, legal measures that aim to control corruption, to become effective, must first become self-enforcing, based on democratic incentives for attitudinal change among the populace.

Kenya's Long Anti-Corruption Agenda—1952-2010: Prospects and Challenges of the Ethics and Anti-Corruption Commission under the 2010 Constitution

James Thuo Gathii — Thu, 22 Sep 2011 17:45:56 PDT

This article examines Kenya's anti-corruption agenda over the past six decades, ending with Kenya's new Constitution of 2010. It concludes that the prospects of an effective anti-corruption regime cannot be predicted, in spite of recent obvious institutional improvements. Almost every turn made to combat corruption in Kenya has suffered setbacks because the judiciary was unsympathetic to the broader anti-corruption agenda or because Parliament or the executive branch found ways to cover up corrupt behavior. Further, many of the old corrupt guard remains in the government. These challenges remain even under the new constitution.

Canada's AntiForeign Bribery Regime Requires a Balancing Act

Cyndee D. Todgham Cherniak — Thu, 22 Sep 2011 17:45:55 PDT

This article discusses Canada's unique approach to corruption in international business. Although Canada subscribes to the revulsion against corruption felt by its global partners, its anti-bribery laws aim to maintain a balance between the two extremes of putting Canadian businesses at a global disadvantage through impractical regulation and unrestricted freedom of these businesses to ignore Canada's constitutional values. The article concludes that, in spite of the uniqueness of this approach, there is need to recalibrate certain aspects of the regime in order to make it even more efficient.

International Investment Arbitration and Corruption Claims: An Analysis of World Duty Free v. Kenya

Ibironke T. Odumosu — Thu, 22 Sep 2011 17:45:53 PDT

In some recent investment arbitration cases, tribunals have been presented with facts that suggest that foreign investors and public officials in the host state have engaged in corrupt practices. In its analysis of the extension of the anti-corruption campaign to investment arbitration, this article examines the legal measures adopted to combat corruption before investor-state arbitral tribunals in light of a study of World Duty Free Co. Ltd. v. The Republic of Kenya. An examination of the background to the World Duty Free v. Kenya dispute, the broader circumstances that surrounded the dispute, and Kenya’s political climate that was not within the tribunal’s purview, demonstrate that investment arbitration tribunals are not sufficiently equipped to exhaustively tackle corruption. Given the intricate political and public nature of corruption, responses to foreign investment-related corruption also have to be multi-faceted.

The Pathology of Judicialization: Politics, Corruption and the Courts in Nigeria

Basil Ugochukwu — Thu, 22 Sep 2011 17:45:51 PDT

Judicialization of politics, the practice whereby judicial power is expanded well beyond adjudication in purely orthodox terms to embrace the core of politics and governmental policy is becoming a global phenomenon. In this paper, I argue that despite its growing popularity and acceptability, the process of political judicialization should be contextually detailed. Using Nigeria as an example, I assert that, although there might be justification for judicial intervention in the countries of Africa, the prevalence of corruption in the judiciaries makes such intervention a double-edged sword, deserving adroit handling. I also argue that the judicialization of politics on the continent is fuel for corruption. As such, removing political questions from the courts, difficult as this might be, could be an important anti-corruption strategy.

Corruption and Political Culture in Africa: History, Meaning, and the Problem of Naming

Moses E. Ochonu — Thu, 22 Sep 2011 17:43:50 PDT

The ethical precision prescribed and codified by legal formulations on corruption conflicts with the on-ground difficulty of naming corruption in Africa. African state formations have been grappling with this tension since precolonial times, producing a crisis of naming and description that has mutated along with the nature and dynamics of the African state and its constitutive interests. This paper explores this tension from a transhistorical perspective. Using case studies from Nigeria and examples from Kenya and elsewhere, it examines the historical engagements of Africans, their institutions, and colonial power formations with ethics, morality, and corruption. The paper proceeds from this exploration to polemically intervene in some contemporary discourses and debates on corruption and the state in Africa. It uses the transhistorical analysis of the continuities and ruptures in corruption discourse and praxis to argue that the politics of naming is central to a comprehensive understanding of malfeasance and graft on the continent.

The Economic and Financial Crimes Commission and the Accountability of Corrupt Foreign Actors in Nigeria

Obiora C. Okafor et al. — Thu, 22 Sep 2011 17:43:48 PDT

This article analyzes the record of the Economic and Financial Crimes Commission of Nigeria with respect to the prosecution of the corrupt practices in Nigeria of foreign actors (individuals and corporations). The article seeks to extract from the analyses possibilities and implications for effective anti-corruption efforts in other parts of Africa.

Introduction

Paul D. Ocheje — Thu, 22 Sep 2011 17:43:46 PDT

Chinese Investment in Africa

Mark Klaver et al. — Thu, 22 Sep 2011 10:35:19 PDT

Chinese investment in Africa has increased rapidly over the past two decades. This paper asks how, why, whether it is good or bad, and what Africans can do about it.

On how, the Chinese government actively promotes liberal investment regulations in Africa. It also keeps close contact with major Chinese enterprises investing on the continent.

On why, the motivation behind Chinese investment in Africa is self-interested: China primarily wants Africa’s natural resources. China also seeks to access local markets, and to capitalize on Africa's preferential trade access to the West.

On whether Chinese investment is good or bad for Africa, African economies are growing at unprecedented rates, partly due to Chinese investment. This paper highlights seven reasons Chinese investment contributes to African growth. But it also reveals three drawbacks to Chinese investment in Africa.

On what Africans can do about Chinese investment, Africa can capitalize on it by proactively promulgating a tax code that promotes African development. The tax code's goal should be to use Chinese investment and natural resource revenues to develop Africa’s manufacturing sector through infrastructure, special economic zones, and education.

Thus, this paper maintains that although Chinese investment in Africa is not unambiguously advantageous, it presents major opportunities for African development.

Law of the Landless: The Dalit Bid for Land Redistribution in Gujarat, India

Topher McDougal — Fri, 19 Aug 2011 11:25:52 PDT

Tenuous land access contributes to food and livelihood insecurity, and fuels conflicts in many rural societies. In such cases, the ability of government legal institutions to structure and ultimately transform the conflict depends not just on the adoption of laws favorable to progressive land redistribution, but also the effective implementation of those laws in the face of elite influence in local government. This paper presents a case study of an identity-based social movement for Outcastes in India (the Navsarjan Trust) struggling to bring about the successful implementation of land redistribution laws in Gujarat, India. I contend the Dalit land movement recognizes outcomes of state policy as products of caste struggles within a nested hierarchy of local government institutions. I argue Navsarjan’s strategy is to modify the strength of links between levels in this hierarchy in order to produce favorable results for the Dalit land rights movement. This strategy explodes the myth of human rights movements as necessarily antagonistic to government function, portraying government rather as a framework that structures social struggle.

Agency and Accountability in Multilateral Development Finance: An Agenda for Change

Sophie E. Smyth — Fri, 12 Aug 2011 01:49:45 PDT

Recent development challenges highlight a pressing need to re-evaluate whether the post-World War II behemoths of multilateral development finance are up to the tasks being demanded of them today. The institutions that dominate the current order, the United Nations (“UN”) and the World Bank, are undergoing a crisis of confidence as the world’s development aid donors engage in an ongoing quest to find alternatives to them. This quest takes the form of setting up numerous funds narrowly tailored to finance specific, narrowly-defined needs. Examples of these funds include the Global Environment Trust Fund (GEF) and the Global Fund to Fight HIV Aids, Malaria and Tuberculosis. The Climate Change Fund, proposed in the December 2009 Copenhagen Accord (and recently renamed the Green Climate Fund), is poised to follow this approach. This ad hoc special purpose fund approach lacks a coherent, unifying vision of how to meet today’s development challenges. The funds that have been created fill a need but suffer from several deficits, ranging from governance gaps and lacunae in accountability, to high transaction costs and uncertain status in the international political and legal order. These deficits generate new risks and costs for the international aid architecture. In this Article, I argue that the time has come to re-design the interrelationship between these special purpose funds and the UN and the World Bank so that these funds can operate in sync with these institutions rather than as bypasses of them.

The Chad-Cameroon Pipeline Project—Assessing the World Bank's Failed Experiment to Direct Oil Revenues towards the Poor

Fabian Clausen et al. — Fri, 05 Aug 2011 03:18:57 PDT

The World Bank's engagement with projects involving extractive industries has not proven particularly successful. Especially in Sub-Saharan Africa, it has actually often made matters worse. Borrower countries' economies failed to grow, and corruption increased; the poor did not benefit from the revenues that were generated. This paper assesses the complex legal and institutional framework of the World Bank project that many hoped would change this bleak record: in the highly publicized and controversial Chad-Cameroon Pipeline Project, the Bank catalyzed the largest private investment in the history of Sub-Saharan Africa. This model project featured new and untested contractual, statutory, institutional and fiscal mechanisms which were intended to make Chad's oil revenues transparent and compel the Government of Chad—one of the world's poorest—to expend its oil revenues on areas consistent with the project's agreed poverty reduction objective, such as education and health.

Despite these heroic measures, in 2008 the revenue allocation program collapsed, and the Bank's projects in Chad terminated prematurely. Not for the first time, the government of Chad had unilaterally altered the underlying laws to enable more security and military spending. Yet again, the poor had not profited from the oil revenues.

We analyse in this paper whether the Bank's failure in the Chad-Cameroon Pipeline Project was due to specific errors in the framework of contracts, laws and institutional structures the Bank deployed—errors which could, in theory, be taken as lessons for a future project making use of an improved revenue allocation system—or whether generally the Bank's entire concept of contractually imposing a revenue allocation system is flawed, such that any attempt to revive such a system on another occasion is misguided and futile.

Law and Development in the Islamic World: New Possibilities

Salim Farrar — Thu, 24 Feb 2011 18:16:11 PST

This paper provides a brief discussion of law and development from Islamic perspectives and looks to the role of Islamic banking and finance as a means of alleviating poverty and promoting economic development in the Muslim world.

International Development Disputes

Tomer Broude — Thu, 24 Feb 2011 18:16:10 PST

This article introduces the concept of "international development disputes". It argues that despite the well-acknowledged vagueness of 'development' as an operative legal concept, there exists a set of international legal differences (primarily international economic disputes, but not exclusively so) that should be identified as international disputes about development. This family of international disputes is discussed and categorized. Recognizing such disputes has implications for the ways in which such disputes are dealt with. In particular, the effectiveness and legitimacy of using judicial methods to address development disputes should be reconsidered.

Special and Differential Treatment, Trade and Sustainable Development

Maureen Irish — Thu, 24 Feb 2011 18:16:08 PST

This article examines the objective of sustainable development, listed in the preamble to the Marrakesh Agreement Establishing the World Trade Organization. It discusses the relationship between rights to special and differential treatment included in various WTO agreements and the principle of common but differentiated responsibilities that is part of sustainable development.

International Trade and Development Law: A Legal Cultural Critique

Colin Picker — Thu, 24 Feb 2011 18:16:07 PST

To the extent that international trade and development policy employs legal methods, institutions and participants, there is a need to take into account the role of legal culture. There are many different legal cultures in the world, including the widely found common and civil law traditions, as well as the many non-western legal traditions and sub-traditions found within the hundreds of different legal systems spread across the globe. International law has, however, traditionally eschewed consideration of legal culture—arguing that international law is unique, is sui generis, and as such domestic legal traditions were not relevant. Yet, the humans involved in creating and nurturing international legal fields and institutions will themselves reflect the legal culture of their home states, and will often import aspects of those legal cultures into international law. The same must be true of international development law. In addition, international legal fields, such as international development law, must often work within domestic legal systems, and as such they will directly interact with the domestic legal traditions. It is thus important to understand the interaction between the legal cultures reflected in the relevant part of that international law and in that of the domestic legal system. Such an understanding can be useful in ensuring the effective interaction of the two systems. This paper explores these themes, continuing the author’s past and ongoing consideration of the role of legal culture in international law, including its role within institutions such as the World Trade Organization.