The G-20, meeting in 2010 in Toronto, identified corruption as one of two issues that merited ongoing attention between G-20 summits. The World Bank in its own operations aims to keep pace with anti-corruption developments around the world, such as the Organization for Economic Cooperation and Development (OECD) Anti-Bribery Convention and stepped-up fraud and corruption prosecutions in member countries. Thus, in order to meet its goal of a world free of poverty and in order to steward its funds, the World Bank has created, reformed, and enforced anti-corruption procedures for more than ten years. To date, the World Bank has publicly sanctioned over four hundred firms and individuals. These sanctions include banning them from bidding on any World Bank-financed project indefinitely or for a period of time, non-debarment contingent on improved practices, sending a letter of reprimand, or issuing an order of restitution.
In the course of its anti-corruption work the World Bank faces a number of legal challenges that are unique to international institutions. One challenge is that the sanctions process relies in part on precedent from World Bank case law, which is quite thin due to the newness of the proceedings. A second challenge is that as the World Bank sanctions procedures have evolved over time, they have come to represent a synthesis of elements from four different legal disciplines that have been imported, adjusted, and combined from national systems: contract law, criminal law, tort law, and adjudicative procedures similar to those in the administrative agencies of many countries.This Essay argues that, given the diversity of national legal systems and notions of justice from which the World Bank would have to choose in developing its sanctioning process, a more productive approach may be to prioritize improvements based on recent scholarship on Global Administrative Law (GAL). A GAL-based approach would not end the need to synthesize national law, but it would allow the Bank to develop substantive norms, independent of whether they are in line with particular national systems. The principles of GAL, such as transparency, reasoned decisionmaking, and participation, can build added legitimacy for an institution that devotes itself to the reduction of human suffering. The outputs of a GAL-based approach to sanctions, such as a public record of jurisprudence, should help stakeholders hold the institution accountable for the sanctions system it creates.
Given the current thinness of World Bank precedent and the unorthodox combination of legal disciplines in the sanctions process, national systems can provide a useful point of reference, especially when compared and contrasted with one another in a benchmark survey. However, "[t]he choice among such approaches is a political choice with political implications." When looking to national systems for guidance, the World Bank may be faced with a choice among legal approaches. National law, even combined with notions of natural justice or customary international law, can only provide so much guidance. Although there is a great deal of convergence among national systems, there will inevitably be situations where the Bank is obliged to choose among irreconcilably different approaches to a legal question.
The challenges of the World Bank's experience have broad relevance, as the articulation and enforcement of rules and regulations increasingly takes place in international organizations. Just as GAL can help the World Bank fill in the blanks without necessitating impossible choices among the national systems of member countries, we expect that looking to the principles of GAL may help other international institutions and member countries design and build up their adjudicative systems.
