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Abiola Makinwa

Offering a reduction of penalty in exchange for co-operation is an important tool in the anti-bribery enforcement prosecutorial toolbox. In contrast to conviction-based regimes, non-trial resolutions (NTRs) offer the possibility to avoid the criminal trial altogether as a reward for co-operation and are fast becoming the primary mechanism of anti-foreign bribery enforcement. NTRs have been adopted in jurisdictions where prosecutors traditionally enjoy broad prosecutorial discretion to negotiate a deal with alleged offenders, but also in jurisdictions where the principle of legality and mandatory prosecution should ostensibly prohibit such a negotiation. As more and more countries adopt NTR regimes in foreign bribery cases there is a growing problem of differing practices, which have rule-of-law implications. Some countries are explicit about the nature of co-operation between alleged offenders and prosecuting authorities, while others are non-explicit and opaque. There are also varying levels of judicial oversight. This chapter argues that while explicit NTR regimes encourage public/private cooperation and compliance in a boost to anti-bribery enforcement, they are, in themselves, no panacea. In a global market, it is important to promote the ‘legitimacy’ of NTRs and align best practices across jurisdictions by way of common standards. This will promote a minimum level of transparency that may help to ensure that NTR regimes for criminal acts of bribery are perceived by the general public as legitimate mechanisms of anti-corruption enforcement.

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Edited by Tina Søreide and Abiola Makinwa

This content is available to you

Edited by Tina Søreide and Abiola Makinwa

This content is available to you

Abiola Makinwa and Tina Søreide

Negotiated agreements with regulatory authorities are becoming the primary vehicle for the resolution of allegations of bribery involving corporations. Examples of such enforcement actions can be observed in recent cases involving large and important corporations like Siemens, Odebrecht, Alstom and Rolls-Royce. As negotiated agreements for bribery cases spread across countries with different law enforcement traditions and criminal justice systems, the result is a fragmented enforcement landscape, with varying degrees of transparency and predictability. Not surprisingly, there is a growing call for some form of coordinated strategy, not only from the legal community, but also from civil society. However, in the absence of consensus around what constitutes efficient anti-bribery enforcement as well as a lack of empirical research on effective enforcement methods in cases of corporate criminal liability, it is challenging to envision what such a strategy might look like. This book makes an important contribution to the discourse on settlements and encourages analytic reflection on the most relevant trade-offs and concerns in the quest for a common framework. Each chapter addresses an aspect of the challenges or processes in the path of developing a ‘principled approach’ and shows that while a ‘principled approach’ is arguably necessary it will ultimately depend on trade-offs between legitimacy and pragmatism. At a time when governments are starting to realize the need for harmonized regulations in this area, the authors of this volume offer valuable insights, information and research results.

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Edited by Tina Søreide and Abiola Makinwa

This thought-provoking book examines the scope, benefits and challenges of negotiated settlements as an enforcement mechanism in bribery cases, and demonstrates the need for a more harmonized and principled approach to deterring corporate bribery. Written by a global team of experts with backgrounds in legal practice, policy work and academia, it offers a truly international perspective, considering negotiated settlements in view of a variety of different legal systems and traditions.