In my recent previous posts on the BOTA Foundation, I recapped its history and provided what I think were some of the critical factors which led it to be recognized as the most successful example the United States Department of Justice has had to date in returning recovered corruption assets. But what are the lessons from BOTA that might be applicable to future foundations established for the same purpose?
Entries in The BOTA Foundation (17)
As noted in my previous post, BOTA has been cited by several major newspapers in recent months as the most successful example that the United States has for accountable, transparent and effective return of recovered corruption assets, and in its final report on the foundation, the World Bank called BOTA “a remarkable achievement.”
The agreement to start the Foundation emerged in 2007 after more than two years of discussion between the Governments of the United States, Switzerland and Kazakhstan (known as “the Parties”) about the disposition of $84 million, plus interest, that had been frozen in a Swiss account since 1999.
I led an anti-corruption program in Cambodia a few years ago funded by the U.S. Agency for International Development. The corruption situation in the country was and remains terrible.
The recently announced BNP sanctions settlement is remarkable in so many ways: the behavior is outrageous, the $9 billion criminal penalty is record-setting, and 13 employees were terminated. However, the most interesting part of the story may be the idea that the DOJ is exploring ways to use the forfeited funds to compensate individuals who may have been harmed by the sanctioned regimes of Sudan, Iran and Cuba.
Aaron Bornstein wrote in the prior post of the potential to use recovered bribe proceeds or stolen assets to fund BOTA-inspired programs in developing countries. That possibility is real, and important. But recognize that the majority of FCPA settlements do not involve traceable and recoverable assets -- the money is typically long gone. So if we are to create more BOTAs, we must fund them with the money that is available in your more typical FCPA settlement.
The BOTA Foundation was able to take the $115 million from the corruption case associated with James GIffen and use it effectively and efficiently to assist more than 200,000 poor children, youth and their families in Kazakhstan.
BOTA was the first foundation established to restitute assets associated with an FCPA prosecution to victims of corruption. What were its key lessons that could be relevant to future foundations established for the same purpose?
The BOTA Foundation surpassed most of the expectations that its founders had for it. BOTA was able to efficiently and effectively return more than $115 million (the original $84 million associated with corruption plus accrued interest frozen Pictet and Cie Swiss bank account) to poor children, youth and their families.
BOTA had three programs, with its largest, the Conditional Cash Transfer (CCT) Program, briefly explained in the previous post. Funds from the Pictet and Cie bank account associated with James Giffen and President Nazarbayev were used in two other ways to help poor children and youth in Kazakhstan: via a NGO grants program, called the Social Service Program (SSP), and through a scholarship program known as the Tuition Assistance Program (TAP).
The background of BOTA Foundation was explored in previous posts. Starting with this post I would like to explain what BOTA actually did in its five and a half years of operation.
BOTA was the first foundation ever established as a result of an FCPA case, and the question explored in this post is how it was set up.