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Resolving Foreign Bribery Cases with Non-Trial Resolutions - Overview

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Non-trial resolutions, often referred to as settlements, have been the predominant means of enforcing foreign bribery and other related offences since the entry into force of the OECD Anti-Bribery Convention 20 years ago. This flyer presents the main findings of a study by the OECD on both the main features of non-trial resolutions and their use to resolve foreign bribery cases.

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Resolving Foreign Bribery Cases with Non-Trial Resolutions - Overview

  1. 1. Resolving foreign bribery cases with non-trial resolutions Non-trial resolutions, also referred to as settlements, have been the predominant means of enforcing foreign bribery and other related offences since the entry into force of the Anti-Bribery Convention 20 years ago. The last decade has seen a steady increase in the use of coordinated multi-jurisdictional non-trial resolutions, which have permitted the highest global amount of combined financial penalties in foreign bribery cases. To date, in the countries Parties to the Convention, close to 80% of the foreign bribery cases have been concluded through non-trial resolutions. Non-trial resolutions are generally viewed as a pragmatic and efficient way to resolve cases that would otherwise require tremendous time and resources to investigate and prosecute before reaching a court. Advocates for non-trial resolutions argue that their compromising rather than adversarial nature constitutes an incentive for wrongdoers to self-report to prosecutors and increases the prospects of corporate governance reforms. However, these mechanisms also present legal, institutional and procedural challenges. Some experts question their ability to fairly and effectively deliver justice. Questions of transparency, the deterrence of sanctions and oversight generally are at the heart of these concerns. Resolving Foreign Bribery Cases with Non-Trial Resolutions is the first cross-country examination of the different types of resolutions that can be used to resolve foreign bribery cases. Covering 27 of the 44 Parties to the Anti-Bribery Convention, the Study documents the non-trial resolution mechanisms available to resolve foreign bribery cases with individuals and/or legal persons with the imposition of sanctions and/or confiscation. Settlements and non- trial agreements by Parties to the Anti- Bribery Convention
  2. 2.  All 27 countries in the Study have a least one non-trial resolution system to resolve a foreign bribery case and 74% of them have several applicable systems.  68 resolution systems are available across the 27 countries in the Study: 13 for legal persons, 16 for natural persons, and 39 for both. This means a total of 52 systems for legal persons and 55 systems for natural persons.  Close to 80% of the almost 900 foreign bribery cases successfully concluded over the 20 years since the Anti- Bribery Convention came into force have been concluded through non-trial resolutions.  In the United States, one of the three biggest enforcers of the foreign bribery offence along with Germany and the United Kingdom, the percentage rises to 96%.  Of the 23 enforcing countries Party to the Anti-Bribery Convention, 15 have used a non-trial resolution mechanism at least once to resolve a foreign bribery case with either a legal or a natural person or both. For some of these countries, non-trial resolutions provided the means to obtain their first-ever foreign bribery resolution or the only means for imposing corporate liability for foreign bribery offences.  A key feature of all non-trial resolution systems is the potential for a reduced sanction but stark differences exist in the level of sanctions imposed in practice.  Non-trial resolutions were responsible for approximately 95% of the USD 14.9 billion collected from legal persons sanctioned to date.  The use of coordinated multi-jurisdictional non-trial resolutions has been on the rise over the past decade. This mechanism has permitted the highest global amount of combined financial penalties in foreign bribery cases. Eight of the top ten largest foreign bribery enforcement actions involved coordinated or sequential non-trial resolutions with at least two Parties to the Convention. Key findings
  3. 3. 5 The increasing use of non-trial resolutions to resolve foreign bribery cases Chapter 1 explores what non-trial resolutions encompass and what has made them the main driver of enforcement. Resolutions and related proceedings This chapter examines the impact of resolutions on related domestic and foreign proceedings. It looks at whether evidence gathered in an unconclusive non-trial resolution process can be used in a separate trial or investigation, and if concluded resolutions can be used against other natural or legal persons. Taking stock of the various forms of resolutions used across countries This chapter examines the 68 resolution systems available grouped under five main forms. Oversight of non-trial resolutions and public access This chapter looks at judicial and other oversight over each type of resolution. It explores in particular the level of court involvement in the various resolution systems and how they can be appealed or challenged. The process towards the adoption of a resolution This chapter analyses the procedures and conditions to adopt a resolution, i.e. when a resolution can be reached, and which authority can conclude a resolution. Terms and obligations of both parties under a resolution This chapter addresses how sanctions and confiscation are imposed and provides data on the amounts imposed in practice. Monitorship and other forms of control over the implementation of the terms of resolutions are examined. 3 46 1 2
  4. 4. About the Study The Study builds a typology of the different forms of non-trial resolutions and sheds light on the underlying dynamics of these instruments, their effectiveness in fighting foreign bribery, as well as the challenges that they raise for law enforcement authorities, companies and the functioning of justice more generally. Particular areas of focus include the availability of guidance to enter into such resolutions, the access to information once they are concluded, the nature and level of sanctions imposed through resolutions and whether they are sufficiently deterrent, as well as the procedural guarantees and the judicial or other reviews over these resolutions. The Study also assesses whether and how certain resolution rules and practices enable a steadier enforcement of foreign bribery offences, both at domestic and multi-jurisdictional levels. The Study was undertaken by the OECD Working Group on Bribery in International Business Transactions. It relies on governmental data gathered through both its rigorous country monitoring process, and a comprehensive survey circulated to all Parties to the Convention. It also relies on the OECD database of concluded foreign bribery cases and specific case studies of the most prominent multi-jurisdictional cases. www.oecd.org/corruption

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