What Did International Anticorruption Institutions Learn from Operation Car Wash?

Kevin E. Davis, Raquel de Mattos Pimenta, Mariana Mota Prado, & Marta R. de Assis Machado*

The leading international institutions charged with guiding reform of transnational anticorruption law have adopted processes that are iterative and experimental to learn from enforcement and implementation experiences. To explore whether and how these processes are working, we use Brazil’s Operation Lava Jato (Car Wash), and the related Odebrecht investigations in other Latin American countries, as a case study. These interconnected cases represent two of the largest corruption probes in the world today, with far-reaching legal, political and economic effects in multiple nations. We argue that the bodies that oversee reform under the OECD Convention and the UN Convention Against Corruption have neglected some of the lessons to be learned from these enforcement operations. They focused on lessons about how to achieve efficiency and effectiveness, rather than due process and human rights. The pattern of neglect is consistent with the hypothesis that international anticorruption institutions are dominated by law enforcement, and their lack of inclusiveness of other perspectives limit these institutions’ ability to learn from experiences with enforcement of anticorruption law.

* Beller Family Professor of Business Law at New York University, USA. Email: ked2@nyu.edu. Professor at Getulio Vargas Foundation Law School in Sao Paulo, Brazil. Professor and William C. Graham Chair in International Law and Development at the University of Toronto, Canada. Professor at Getulio Vargas Foundation Law School in Sao Paulo, Brazil and National Secretary for Drug Policy and Recovery of Assets in the Brazilian Ministry of Justice. We are grateful to Barbara Orihuela, Martim Landgraf, Matheus de Barros, Yiwen Wei, Ben Maclean Max and Rob Halperin for research assistance. Davis acknowledges support from the Global Research Institute at NYU Paris. We thank participants in the FGV Law and Development Graduate Research Workshop, the 2021 meetings of the Law and Society Association, the NYU LL.M. Honors Seminar and Gustavo Jacomassi for helpful comments on earlier versions.