The B20 Task Force on Improving Transparency and Anti-Corruption’s latest report is out, and the former director of the UK’s Serious Fraud Office told me that there has been some notable changes of detail in it.
“The most significant changes concern the role that the United Nations Convention Against Corruption and the Organisation for Economic Co-operation and Development could play as international mechanisms for resolving disputes about multi-jurisdictional enforcement,” says Richard Alderman, who served as SFO director from 2008 to 2012.
“There is no previous history of Article 47 of the UNCAC and Article 4.3 of the OECD being used for this purpose, and there is no guidance on what the principles would be in corporate cases. This is a starting point in the existence of such a mechanism, however,” he says.
In the report’s section on Multi-Jurisdictional Enforcement to which Alderman refers, the Task Force states:
It is legitimate to aspire to a more comprehensive mechanism that would enable a true global settlement to take place. This would require much wider international collaboration and a mechanism that would enable the inevitable issues between states as well as between states and companies to be resolved. … Leadership from the UNODC and EOCD would be needed in developing this.
The report refers to recent enforcements that demonstrate what can be achieved when states and companies work together.
The report notes that recent years have seen global companies playing a vital role in working with national governments and international institutions to fight corruption. It points to the vigorous approach that China’s authorities have taken in dealing with bribes allegedly paid by global companies as one example of this trend.
Other examples the authors cite include the three separate settlements involving LIBOR-rate rigging allegations that UK and U.S. regulatory authorities entered into with Barclays, RBS and UBS in 2012 and early 2013. They represent coordinated settlements between two jurisidictions’ enforcement and regulatory authorities, with the latter two involving both criminal and civil resolutions.
In the report, Law Professor Elizabeth Spahn (an FCPA Blog contributing editor) touches on what would be needed to make international coordination of this kind work on an ongoing basis. She says, “hybrid courts with one single forum, or a single super-prosecutor, as is periodically proposed for other crimes may end up being more attractive to [companies] than the current horizontal multiple-jurisdiction enforcement regime.”
Spahn admits that it is uncertain if non-Convention nations would willingly relinquish their autonomous prosecutorial discretion to work cooperatively with a more centralized organization.
The report details the advantages such a coordinated settlement approach could bring to both states and companies, particularly in the corruption arena.
The B20 Task Force brings global business leaders, international organizations and businesses together to generate recommendations to the G20 on specific topics.
The B20 Task Force’s report can be found here.
Julie DiMauro is the executive editor of FCPA Blog and can be reached here.