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Elisabeth Danon on the globalization of deferred prosecution agreements

Driven by the complexity and international dimension of investigations, countries increasingly resort to settlements, rather than traditional justice, to solve foreign bribery allegations.

In 2014, the OECD reported that 69 percent of the cases successfully concluded by member countries since the adoption of the Anti-bribery Convention were resolved through a settlement.

From the Italian “pattegiamento” — a plea-bargaining resulting in a conviction — to the U.S. deferred prosecution agreement, the notion of settlement encapsulates all types of agreement meant to either resolve or defer the prosecution of a foreign bribery case. And beyond the requirement of a conviction (or lack thereof), other important aspects vary significantly among countries. The terms under which a settlement is concluded, the judicial scrutiny it is subject to and its publicity, are just a few examples.

Notwithstanding the time and cost efficiency that they offer, various stakeholders have called for the adoption of harmonized standards for settlements at the global level. For some experts, the objective should be the observance of high standards of transparency and integrity.

Generally, the increasingly globalized nature of the fight against bribery should encourage countries to harmonize enforcement rules. In the absence of such coordinated effort, criminal justice systems could appear unable to consistently sanction corruption.

The International Bar Association (IBA) Anti-Corruption Committee (ACC) is determined to take an active role in this conversation. In January 2017, the ACC launched a Sub-Committee on Structured Criminal Settlements (SCSS).

The short term objective of the SCSS is to look at the existing forms of settlements around the globe and assess their fundamental and technical differences. The SCSS will further draw on research to identify the key challenges facing the possibility of a global coordinated settlement framework.

The assessment exercise is being conducted through standardized questionnaires responded to by subject-matter experts in more than 60 countries and collected by SCSS Regional Representatives. Completed questionnaires will be compiled in an electronic publication to be issued before the 15th Annual IBA Anti-Corruption Conference. The results will also constitute the basis of the Conference Panel on “Uniform Deferred Prosecution Agreement Standards? Setting the Stage.”

Over time, the SCSS aims to reach a global coverage and keep track of reforms and developments in the field, with the objective to provide actionable data and fuel the discussion towards harmonization. The SCSS also intends to produce yearly notes for distribution to IBA members and experts in this field (including non-members and academics).

As settlements have become a key element in the fight against bribery, the IBA Anti-corruption Committee is eager to contribute to the debate towards harmonization of settlement standards.

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Elisabeth Danon is a Senior Adviser at the Montreal office of KPMG. She previously worked at the Anti-corruption Division of the OECD, and more recently at the World Bank as a legal analyst. She can be contacted here.

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