Fighting Corruption Through Strategic Litigation

Strategic litigation, the practice of bringing a lawsuit to catalyze some larger systemic objective, is not a new tool in the anti-corruption and anti-kleptocracy arsenal, but for a variety of reasons, it has been comparatively less utilized. However, given the decision by US Attorney General Pam Bondi to disband the Department of Justice’s “Task Force KleptoCapture, the Department’s Kleptocracy Team, and the Kleptocracy Asset Recovery Initiative,” detailed in the February 5, 2025, Memorandum “Total Elimination of Cartels and Transnational Criminal Organizations,” it is worth asking whether strategic litigation could help fill the gap the US Government is vacating. 

In its 2023 article, “Strategic litigation and its untapped potential for anti-corruption,” the U4 Anti-Corruption Resource Centre notes that while strategic litigation has been used more widely in the human rights and climate spaces, anti-corruption cases date back to 2007. A case that took nearly a decade was initiated by a complaint filed by the French NGO Sherpa that came to be known as the “Biens Mal Acquis affair.” This has been followed by instances in countries as widespread as Argentina, Nigeria, Switzerland (for corruption allegations in the Democratic Republic of Congo), Sri Lanka and more. The World Wildlife Fund and U4 have also looked at efforts at the intersection of anti-corruption and climate. 

The Basel Institute offers this guide to how NGOs seeking to engage in asset recovery might proceed. However, there are challenges facing NGOs taking this route. This piece from the UNCAC Coalition, covering a panel from the 2024 International Anti-Corruption Conference, focused on some of those. First, because the basic idea of strategic litigation for anti-corruption cases is that recovered assets can be restored to the citizens of countries that have had assets stolen, NGOs often struggle to establish legal standing, and thus cases may founder from the start. Collecting evidence in such cases may depend on the cooperation of officials in the country that was subject to asset-stripping, meaning that absent a change in government (such as a democratic transition), they may be particularly hard to pursue. Further, NGOs have to file in jurisdictions with favorable asset restitution legislation, cases can take decades, outcomes are undercertain, and the lawsuits are expensive, and donors do not often fund them.

This is where the idea of using another tool, third-party litigation funding (TPLF), comes in. TPLF refers to when a lawsuit in which “a funder who is not a party to the lawsuit agrees to help fund it. Funders may get a pay off on their investment if the suit is successful.” As detailed in this 2021 piece from Transparency International-France, “the emergence of newly established private litigation funders dedicating all or part of their practice to sovereign asset recovery suggests that the use of private litigation funding is being actively promoted to states and is a likely growth area.” However, the author cautions that “asset recovery is not immune from the type of abuses of private litigation funding that have emerged in the international arbitration field.” Generally, TPLF is not without controversy, as it is differently regulated globally, and is oft-criticized by the business community and legal community.

Given current political realities and enforcement priorities in the US, as Alexis Loeb of Farella Braun + Martel writes in Axing DOJ’s Kleptocracy Team Is a Boon for Foreign Bribe Takers, with respect to anti-kleptocracy and asset recovery efforts, US officials even outside the Department of Justice are unlikely to “prioritize such cases, or have the resources to do such involved investigations,” and “allies may see US law enforcement as a less dependable partner.” One person with whom I spoke for this piece noted that these changes may make governments that experience a democratic opening and are looking to recover stolen assets may feel they are on their own, without US support from regulators, diplomats, investigators and courts. By the same token, strategic litigation remains a vital tool, and in countries undergoing democratic transition, asset recovery lawsuits could potentially help bridge the funding gap left by cuts to foreign aid, allowing recovered assets to meet immediate needs and long-term development goals.

Marc Schleifer

Governance, Democracy and Economic Development Expert