Project Team: Dr Abiola Makinwa (Chair), Tina Søreide (Vice Chair) and Ms Alison Levitt QC (Vica Chair)
Timeframe: 01/01/2017 - 01/01/2019
Rationale for Proposed Structured Criminal Settlements Subcommittee
Throughout bribery and corruption cases, invariably spanning a number of jurisdictions, the perennial question arises of how, when and in what manner a company (and indeed, individuals) can seek to negotiate a resolution of potential criminal prosecutions for bribery and corruption. Negotiated settlements are a core issue in anti–corruption compliance. This is a critical area of global and industry concern because negotiated settlements directly impact on the role of corporations in the fight against corruption and how individuals are treated. By rewarding corporate policies that discourage the offering of bribes to attain business, negotiated settlements can have a significant effect on a corporations’ compliance with anti-corruption regulations.
Negotiated settlements have become the most common enforcement outcome for allegations of corruption involving corporations, particularly with the differing models currently available in the US and the UK. Leaving aside the broader questions of whether the practice of negotiated settlements is desirable or not; its advantages and disadvantages; its prospects and shortcomings; the fact remains that corporations across the globe are impacted by the de facto practice of negotiated settlements offered by the primary enforcing jurisdiction, the US. This is particularly important when contrasted with the lack of incentive for compliance that results from traditional methods of criminal prosecution that are predicated upon a criminal conviction and a plea in mitigation at sentencing. The traditional prosecution process is often impeded by a lack of capacity to uncover, investigate or establish criminality; by a lack of political will; by the length of the traditional criminal process; and by judicial corruption.
There are differing approaches across the world to the issue of out of court settlements. The lack of coherence in global regulatory frameworks means that the results of settlements can be arbitrary. Furthermore, there is a growing gulf between the practice in the US, the EU and the rest of the world. This runs contrary to the aims of securing confidence in the ability of criminal justice systems to consistently sanction corruption. Outlining the prospects (or lack thereof) of a coordinated position on negotiated settlements for foreign bribery is an important contribution to the discourse on effective mechanisms to fight corruption in a global world.
Scope of Activities of Proposed Subcommittee
- Explore the latest trends in settlements and particularly the outlier examples of global settlements.
- Drawing on research and experience to identify the key challenges facing the possibility of a global coordinated settlement framework.
- Drawing on research and experience, propose a possible framework for the development of a coordinated criminal settlement policy for serious financial crimes (including bribery and corruption).
Makinwa, A. & T. Søreide. 2018. Structured Criminal Settlements: Towards Global Standards in Structured Criminal Settlements for Corruption Offences. IBA Anti-Corruption Committee: Structured Criminal Settlements Sub-Committee. International Bar Association (available online free of charge from june 2018)
June 13-14, 2017: Attended OECD Conference in Paris: ‘The Social Dynamics of Corruption: Impacts on Business and Society’. IBA anti-corruption committee presentation by Dr Abiola Makinwa & Tina Søreide ‘Structured Criminal Settlements for Corruption Offences: Toward Uniform Deferred Prosecution Agreement Standards? Setting the Stage’.
September 5, 2017: Seminar ‘Why can Companies Negotiate Settlements in Bribery Cases?‘. Panel: Tina Søreide, Dr Abiola Makinwa and Arkan El Seblani.