keith henderson

Abstract: Promoting the next generation of judicial reforms will require more judicial transparency, public accountability, political will and targeted resources. This paper recommends a participatory monitoring and reporting framework for the Americas that is designed to simultaneously promote best practices and the implementation of high priority institutional reforms and develop public support for a fair and impartial judicial system.

A Practitioner's Perspective through a Russian Lens In this article, I synthesize and analyze the current state of key research and programmatic experience relating to global corruption and the transition countries of the Former Soviet Union (FSU)--particularly Russia. Second, I advocate a holistic prescription of preventive and remedial anticorruption medicine that includes balanced doses of prevention, investigation, and public awareness. Third, I argue for collaborative local, country, regional, and global anticorruption trade and investment/civil society strategies that are grounded on political will, "good governance" principles, and global technological, business, and democratic trends and practices. Fourth, I propose a broad, flexible framework for action, including eight high-priority areas of programmatic intervention and strong support for regional public and private initiatives. And fifth, I call for leadership and action--particularly from the business, academic, and foundation communities--as well as for more transparency, accountability, and informal and formal information sharing among donors, governments, businesses, and the law enforcement community, particularly when there is evidence of corrupt or criminal activities. Moving in this general direction now will strengthen the enforcement teeth of private and public ethics codes and new and planned global and regional anticorruption treaties and country initiatives such as those just inked by the Organization for Economic Cooperation and Development (OECD) and the Organization of American States (OAS). Historical Regional Perspective and the Causes of Corruption Russian Lessons Learned/Global Admonitions The chapter on corruption is necessarily being constantly rewritten as we learn more about its causes and nature and the countries in which we are working and investing. New information technologies and dramatic global economic and political forces are all contributing to this evolving process. And as the full, long-term political and economic effects of corruption play out on the world stage, the international political and business community, as well as a more engaged and vested citizenry, is now less willing to accept corruption as a price they are willing to pay to protect the status quo and to maintain close-knit political and business alliances. A historical perspective is important to understanding this "new" global phenomenon. Whether in the days of Peter the Great or Louis XV in eighteenth-century Europe, or South Korea, Italy, or Mexico in the twentieth century, corruption has been a serious, although infrequently discussed, phenomenon. Until recently there has been no appreciation of the full costs of corruption and no consensus on a wide range of governance and business issues. There has also been a conspiracy of silence among virtually all of the key players--donors, companies, and governments alike. In 1894, a French/Russian scholar, Anatole Leroy-Beaulieu, observed that corruption and lawlessness was a centuries-old problem for Russia and that it had been a major deterrent to Russia's becoming part of the world community for centuries. After noting the progressive reforms initiated by Czar Alexander in the 1860s, including an effort to create an independent judiciary, he wrote that the fundamental causes of corruption in Russian history remained the same: (a) a society ruled by men instead of law; (b) a secretive, restrictive bureaucracy that stifles justice and the press and the development of strong state institutions; (c) a weak civil society unable to check governmental action; and (d) a citizenry cynical and distrusting of government and the law. These are among the key problems that must be addressed by Russia and numerous other countries even today. However, the difference in Russia and some other FSU countries is that corruption appears to be systemic throughout all levels of society. Many are beginning to believe that this profound problem is the most enduring legacy of the Communist system, under which corrupt practices were a totally acceptable, and often necessary, method of making virtually anything happen on an everyday basis. …

I. INTRODUCTION Seventy-three seconds after its launch on January 28, 1986, the space shuttle Challenger exploded, destroying the shuttle and killing the crew.1 Among the crew was Christa McAuliffe, a school teacher who had been selected for the shuttle mission. Millions of people watched the explosion either at Cape Canaveral or on television. As the explosion was played again and again, these images of Challenger became the visual manifestation of heart-rending disaster. Through the testimony of a whistleblower appearing before a specially appointed presidential commission, the public soon learned that the evening before the launch, engineers for a National Aeronautics and Space Administration (NASA) contractor, Morton Thiokol, had pleaded with NASA officials not to launch the shuttle, predicting the failure that caused the explosion.2 These engineers were overruled by the management of Morton Thiokol, a decision accepted by NASA officials anxious to launch the shuttle.3 Subsequently, one of these engineers ensured that the presidential commission and Congress received an accurate account of the decision to launch. For this candor, the engineer faced retaliation from officials at Morton Thiokol.4 Images of the destruction of Challenger also came to represent preventable disaster and the importance of courageous whistleblowers to the discovery of the truth and to the avoidance of other calamities. The Challenger tragedy opened an important stage in whistleblower protection in the United States. Within the decade following that disaster, not only had Congress enacted the Whistleblower Protection Act of 1989,5 significantly strengthening whistleblower protections for federal employees, but state legislatures also passed hundreds of whistleblower statutes protecting both public and private sector employees.6 The Challenger disaster provides a powerful icon for the following decade and a half in which many countries and international bodies adopted whistleblower laws. In examining a draft law to implement one of these international treaties, this article seeks to review and evaluate this post-Challenger legal revolution. On March 29, 1996, in a plenary session, the Organization of American States (OAS) adopted the Inter-American Convention Against Corruption.7 The Convention created a comprehensive anti-corruption treaty for the Western Hemisphere. Article III, section 8 of the Convention protects "public servants and private citizens who, in good faith, report acts of corruption."8 This important section foreshadowed similar provisions in the European Union's Civil and Criminal Conventions on Corruption.9 In 2000 the Office of Legal Cooperation of the Organization of American States (OAS) contracted with several organizations to draft model statutes implementing whistleblower protection as well as other provisions of the Convention for five Central American countries.10 The authors of this article faced the task of drafting the model whistleblower statute. In fall 2000 this group submitted a draft of a model whistleblower law to the Office of Legal Cooperation.11 On November 13-15, 2000, the Office of Legal Cooperation convened workshops in Antigua, Guatemala to perfect language and seek a consensus for the draft laws, including the whistleblower protection statute. Participants at the workshop on the whistleblower law included legal experts from Central America, government officials, and representatives of non-governmental organizations. Although the whistleblower proposal gained a consensus, participants questioned whether existing judicial and social systems could accommodate this major reform without the adoption of other reforms. In particular, these experts expressed concerns regarding the independence of the judiciary, the effectiveness of ombudsmen in the region, the broad authority of the executive in many Central American countries, and the risks of physical harm to whistleblowers. Participants also emphasized the connections among the model laws discussed at these workshops. …

This study analyzes the impact of judicial inefficiency on small businesses in Peru. It is based on the hypothesis that chronic problems in the region's judicial systems have negative consequences on the development of micro, small and medium-sized businesses. The analysis focuses, first, on the relationship between small businesses and the legal system. Secondly, it looks at decisions made by small businesses to mitigate the effects of poor performance by the courts. Lastly, it identifies several ways in which judicial inefficiency is transferred to the business sector. The analysis also attempts to quantify the economic impact of judicial inefficiency.