China to blacklist health care companies involved in bribery

China's decision to publish a blacklist of health care companies that have been involved in paying of bribes is a positive initiative. What is most commendable is that they will publish the blacklist, which is something even the EU has shied away from since its 2004 Directive - Kudos for that. 

Blacklisting is in my view the most effective mechanism to combat corruption in public procurement, especially in emerging markets and developing countries as it is cheaper to implement and more deterrent in impact. Blacklisting establishes a case whereby acts of corruption are no longer commercially viable as once blacklisted for a definitive period of time the commercial organisation loses access to that particular market thereby forgoing the opportunities it provides. While one sees an increase in financial penalties for bribery actions, these penalties are in cases of minor offences and sufficient compliance window dressing being incorporated as opportunity realization cost. Blacklisting on the other hand takes away the end result which is 'opportunity realization'.

My take on what China should and should not do:

1. As far as China's model goes what is unclear is whether they will consider pre-conviction blacklistings - which would set a very tough tone and would be most effective. 

2. Secondly, a comprehensive system of ensuring fairness and transparency in the process of blacklisting itself needs to be established in order to prevent abuse. It is imperative that though the blacklisting sanction will principally be an administrative action it embodies a sound quasi-judicial approach to prevent abuse.

3. Thirdly, the time frame of blacklisting should not be limited to just 2 years and should be extendable based on the seriousness of the matter. Further to be re-listing should be contingent upon incorporating concrete compliance measures to prevent bribery, the failure of which would extend the blacklisting (World Bank approach).

4. Lastly, a blacklisting sanction should not become a substitute for criminal prosecution. I would side with Immanuel Kant on this whereby the perpetrator of an offence must be punished for the sake of the law itself and to ensure that the law is not undermined.

Lessons the Indian legal system needs to draw from Khobragade and allied instances.

The US District Attorney for the Southern District of New York - Mr Preet Bharara decides to press charges and cut a deal with a complainants family while a warrant against that same complainant was already issued in India and the Govt. of India's version of facts were on record for close to 6 months. Similarly, a UK High Court judge allows a UK national to sue the Indian Hotels Company Limited (Tata Group) in the United Kingdom for failure to provide adequate security at their Hotel in Mumbai resulting in a terrorist attack - on the grounds that the time taken by the legal process in India which could take up to 20 years creates a right for hearing and trial in the UK.

In both the above mentioned cases a growing contempt for the Indian legal system and its lacunae is clearly visible. While we may like to passionately argue in India that this is clear disrespect of a sovereign nations legal system in violation of established International principles of mutual respect, equality and sovereignty - it would be imperative to keep the strictly legal argument aside and consider the reality one as well. While Mr Bharara felt the Indian legal system would be compromised (Yes, we are the same country where an arrest warrant was issued against its President by a lower court which was bribed), the UK Judge's rationale is presumably the incalculable duration of legal proceedings and our courts' primitive view to compensation. The premises on which these two individuals acted is not far from the truth, as most of us from the profession would agree. Justice delayed or compromised is most definitely justice denied. This is a major embarrassment for India where the global perception is leaning to the fact that for justice to be done it needs to be exported. 

Our higher judiciary does command a good reputation and as several legal luminaries like Ms. Zia Mody have also pointed out, our faith in the higher judiciary remains. However, mere faith in the higher judiciary does not necessarily translate into justice for litigants nor does it in any way put an end to the suffering those face who come knocking on the doors of the law. The reason I use the term legal process is to cover the entire ambit of interaction that an individual has with the law which would include not only the courts but authorities as well. On one side we of course have the human rights suffering which besides abuse is also the suffering a citizen endures to have even basic legal remedies realized (filing an FIR, probate of a will, etc). 

On the other hand the legal process in its current form has an adverse affect on business in India. Disputes between commercial organisations rarely are resolved through the legal process in a manner that would be conducive to business. The delays in the legal process (which also include alternative dispute resolution mechanisms like arbitration) ensure that the time value of money is never adequately protected. Further, as I said earlier the Indian courts have taken such an archaic view to awarding damages that belligerent parties get away with murder in the commercial scheme of things. Having simple provisions of contracts enforced is today costly, time consuming and the chances of success are more remote than the ISRO landing a man on the moon - as the ISRO may still do so in this generation but for a civil dispute you may lose a generation fighting it. In more and more strictly civil disputes parties attempt to bring the criminal law into motion as well, however remote the criminal case maybe in order to ensure that some pressure is created to resolve the dispute. (There are no brownie points for answering how the criminal law is set in motion in a civil dispute). This has resulted in the unfortunate instance of forum shopping whereby the preferred forum for a commercial dispute in India - is not in India but in another country, where the chances of a time bound and fair resolution of the dispute are higher. There is a concerted attempt to create this jurisdiction and act upon it as even subsidiaries of foreign companies in India are exploiting the legal system to their advantage. While not every case does find a foreign country's jurisdiction the question is one that legal professionals are often asked when dealing with India Inc.

India is no longer a geopolitical or geocommercial minnow and would like to portray itself differently to the international community as well. If we would like to increase foreign investment and establish ourselves as a business conducive economy, it is but imperative that the legal system should be able to complement this aspiration. If it does not then the India Shining Story will begin to progressively dim with each such case. We will remain viable but not as viable as the dreams for India a few of us have seen.

What the passing of the Lokpal should not result in

The Lokpal Bill gets passed and there is multi-party rejoicing. I still firmly believe that a Lokpal is not the solution to India's endemic corruption problem. The passing of the Bill will drive us further away from addressing the substantive and procedural law issues that are at the core of the problem, as most see the Lokpal as a magical and mystical fix to everything that's wrong with this country. I see it as a dangerous precedent of running to establish external bodies every time we are faced with execution or operational challenges in upholding the law. That to say the very least is an escapist approach for a young nation. 

Now since the albatross is slung around our neck I do hope this does not mark an era where the Lokpal is perceived as the only necessary anti corruption legislation that required passing. Parliament should take it upon itself to pass the following legislations on a war footing - Prevention of Corruption (Amendment) Bill 2013, Prevention of Bribery of Foreign Public Officials and Officials of Public International Organizations Bill 2011, Whistleblowers Protection Bill 2011 and the Public Procurement Bill 2012.

After these Bills are passed, the onerous task of defining guidelines for compliance with the new offences / policy / procedures will need to be elucidated along with a comprehensive investigation and prosecution strategy. While we do need convictions to establish deterrence, the multitude of authorities dealing with corruption need to also consider administrative and financial sanctions which will have a far greater impact on the supply side of bribery, bringing its viability into question - which unfortunately has not been addressed so far leaving bribery as the more viable alternative.