Abstract

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.