A Principled Approach
Edited by Tina Søreide and Abiola Makinwa
Chapter 12: Corporate compliance and privatization of law enforcement. A study of the Italian legislation in the light of the U.S. experience
In bribery cases, compliance-based defense often implies substantial efforts and costs on the side of corporations for providing enforcement agencies with the facts of the case. In several jurisdictions, corporations and their private sector investigators shape those facts as they lay the ground for a negotiation-based enforcement action ever more frequently. While public investigators undertake their own fact-finding missions, the financial consequences and the reputational stigma associated with bribery cases place corporations with a clear interest in proactive cooperation with the public investigation. At the same time, private entities’ proactive involvement in the fact-finding exercise questions the public monopoly on the investigative initiatives in criminal matters and, more subtly though, the very idea of State control on the law enforcement process. In several areas, peculiar kinds of public–private partnerships—featured by a hybrid approach to governance with voluntary monitoring activities and investigative strategies based on the acquisition and control of the private entities’ information assets—are gaining ground. However, in some European continental jurisdictions, which are anchored to a neat distinction between the respective roles of the public authorities and private sector in law enforcement, legislators seem particularly wary of such an equal cooperation in the fact-finding exercise and, occasionally, law enforcement authorities even perceive it as an obstacle to evaluate and evidence allegations. This chapter discusses the normative implications and risks of the ‘privatization’ of investigations for bribery cases by analyzing the Italian corporate liability regime, which has not been substantially modified since Legislative Decree 231/01. Such assessment is conducted in the light of the US model, which has enjoyed an unparalleled success in pursuing enforcement actions against multinational firms for corruption and other offenses and whose practices and principles have already been ‘exported’ to some European jurisdictions. Even if Article 112 of the Italian Constitution, namely the principle of mandatory prosecution, prevents the adoption of negotiated settlements like the US pre-trial diversion agreements, this study analyzes the potential benefits and challenges of the implementation of forms of cooperation between authorities and corporations based on the provisions of Legislative Decree 231/01.
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