{"id":82598,"date":"2020-09-02T16:39:00","date_gmt":"2020-09-02T14:39:00","guid":{"rendered":"https:\/\/legrandcontinent.eu\/fr\/?p=82598"},"modified":"2020-11-14T16:26:31","modified_gmt":"2020-11-14T15:26:31","slug":"transnational-negotiated-justice-the-cornerstone-of-an-organized-extraterritoriality%e2%80%af","status":"publish","type":"post","link":"https:\/\/legrandcontinent.eu\/fr\/2020\/09\/02\/transnational-negotiated-justice-the-cornerstone-of-an-organized-extraterritoriality%e2%80%af\/","title":{"rendered":"Transnational Negotiated Justice : the Cornerstone of an Organized Extraterritoriality ?"},"content":{"rendered":"\n

The <\/sup>\u201cTop Ten\u201d list of the companies sanctioned for violating laws against corruption of foreign public officials in significant matters is enriched every year by new resolution agreements coordinated among several States party to the Convention of the Organization for Economic Co-operation and Development (OECD). <\/sup>The novelty is that France joined the list in 2018 alongside the United States as a prosecuting authority, due to its participation in the coordinated settlement of two major cases <\/span>1<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

\"\"<\/a>T\u00e9l\u00e9charger<\/a><\/div>\n\n\n\n

The most recent one, on January 31, 2020 involved Airbus SE, which settled for a global fine of more than 3.6 billion euros in order to put an end to proceedings against it in fine \u2013notably, on account of corruption of foreign public officials\u2013 by the French financial prosecutor (Parquet national financier, \u201cPNF\u201d), the United Kingdom\u2019s Serious Fraud Office (\u201cSFO\u201d) and the United States\u2019 Department of Justice (\u201cDoJ\u201d) <\/span>2<\/sup><\/a><\/span><\/span>. This is the most remarkable coordinated settlement in a transnational bribery case since the creation of the PNF six years ago and the passing of the French Sapin II law on December 9, 2016, allowing France to become as recognized as the United States and the United Kingdom on the international stage as a prosecuting authority.<\/p>\n\n\n\n

It is well known that, under the scrutiny of the OECD, French lawmakers sought to reinforce the international credibility of France by setting the conditions for a strong trusting relationship between prosecuting States, so as to curtail the flow of extraterritorial prosecutions initiated by the DoJ against French companies. This was the primary reason why the Conventions judiciaires d\u2019int\u00e9r\u00eat public<\/em> (CJIP) \u2014 based on the Deferred Prosecution Agreements (DPA) existing in the United States and the United Kingdom \u2014 were introduced into the French law by the Sapin II law alongside with the guilty pleas known as Comparution sur reconnaissance pr\u00e9alable de culpabilit\u00e9<\/em> (CRPC).<\/p>\n\n\n\n

These agreements are known as \u201cnegotiated justice\u201d, for they are approved by a judge during a public hearing after an investigation on the relevant facts, within which the accused company cooperates actively, and a later confidential negotiation between the said company and the authorities on the amount of the fine and the facts. As they are approved and executed, these agreements put a final end to the proceedings \u2013with an admission of guilt (CRPC) or not (DPA, NPA, CJIP) <\/span>3<\/sup><\/a><\/span><\/span> depending on each country\u2019s legal system\u2013 in exchange for the payment of a very high fine, the acknowledgment of certain facts, and the fulfillment of compliance obligations by the company <\/span>4<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

As they facilitate the coordinated settlement of proceedings initiated simultaneously by several authorities, these negotiated agreements lead to a consequential increase in prosecutions, which is a source of great legal uncertainty for the defendant. The latter can be subject to substantial criminal sanctions in different States, although the prosecuted offence is the same. This is particularly alarming when we consider that international criminal law does not provide us with the means to regulate international prosecutions, each State having full authority to prosecute offenses on its territory. The ne bis in idem<\/em> or \u201cdouble jeopardy\u201d principle, which prohibits bringing legal proceedings or punishing the same person twice for the same offense, does not apply among sovereign States in the absence of an international agreement and of a sufficient domestic political consensus.  <\/p>\n\n\n\n

This lack of interest, this disengagement of the international community and States before the appalling conditions of those defendants who face concurrent and sometimes consecutive prosecutions, contrast with the creativity and growing vitality of both the defendants and national prosecutors themselves, which are revealed by the conclusion of transnational negotiated justice settlements. In the absence of any binding legal text, a form of self-regulation of prosecutions emerges, its objective being to \u2013in this case, empirically\u2013 prevent proceedings from piling up, through reinforced cooperation when allocating the final amount of the overall fine or even when determining which State is the most appropriate for prosecution.<\/p>\n\n\n\n

The lack of an organized regulation of extraterritorial prosecutions under international criminal law (I) is counterbalanced by a form of self-regulation of prosecutions based on transnational negotiated justice, which, even if still imperfect, could nonetheless exert an influence on States (II).<\/p>\n\n\n\n

I. The lack of an organized regulation of extraterritorial prosecutions under international criminal law<\/h2>\n\n\n\n

Talking of \u201cextraterritorial prosecutions\u201d may lead to confusion, inasmuch as it is in reality the extensive application of territorial and personal jurisdiction provisions of the FCPA that has caused the rise in proceedings launched by the DoJ, and subsequently, by other States based on their laws against bribery of foreign public officials. We will nevertheless keep using this expression in its current meaning, i.e. indicating the exercise of jurisdiction by the United States and by other States against foreign companies on grounds of transnational corruption offenses perpetrated wholly or partly abroad.<\/p>\n\n\n\n

Any defendant, confronted with this type of proceedings, may legitimately experience a sense of arbitrariness, as jurisdiction criteria are set by settlement agreements without substantial overseeing by a judge. It would be only logical that the excess in extraterritorial prosecutions be balanced by a sensible application of the double jeopardy principle (A). However, positive law bars its application based on a concept of territorial sovereignty that does not take into account the specificity of transnational bribery and of the prosecutions led on such grounds (B).<\/p>\n\n\n\n

A. The growing number of extraterritorial prosecutions<\/h3>\n\n\n\n

As every country provides itself with comparable negotiated justice tools, the growing number of concurrent agreements to settle complex cases risks encouraging unrestrained extraterritorial prosecutions. This possibility is particularly serious when proceedings concern bribery of foreign public officials.<\/p>\n\n\n\n

For this offense, the prosecution must establish elements that may be situated in different states, such as the execution of the corrupt pact, the transfer of anything of value, directly or through an intermediary, to a foreign public official, via financial flows following different paths. More generally, the OECD encourages each country to adopt a broad conception of its territorial jurisdiction, \u201cso that an extensive physical connection to the bribery act is not required\u201d <\/span>5<\/sup><\/a><\/span><\/span>. Each State is thus tempted to conceive its own jurisdiction broadly, although the aggregation of these interpretations may produce a sort of international cacophony without referral or regulation of prosecutions.<\/p>\n\n\n\n

Each State is thus tempted to conceive its own jurisdiction broadly, although the aggregation of these interpretations may produce a sort of international cacophony without referral or regulation of prosecutions.<\/p>astrid mignon colombet<\/cite><\/blockquote><\/figure>\n\n\n\n

Since 2010, US authorities have adopted a broad interpretation of their personal and territorial jurisdiction when prosecuting French companies in application of the FCPA <\/span>6<\/sup><\/a><\/span><\/span>. Thus, foreign companies qualifying as \u201cissuers\u201d (as understood under US law), either by being listed on a stock exchange or being issuers of securities on the US market through American Depository Receipts, can be prosecuted for fraudulently using \u201cany means or instruments of interstate commerce\u201d in furtherance of a corrupt scheme (for instance, an email sent to a person in the United States or financial transactions denominated in US dollars passing through US banks) <\/span>7<\/sup><\/a><\/span><\/span>. US companies are also concerned by the statute : notably, any US subsidiary of a French group participating in a corrupt scheme (\u201cdomestic concerns\u201d).<\/p>\n\n\n\n

Especially after the changes made in 1998, the FCPA also applies to non-US companies \u201cengaging in any act in furtherance of a corrupt payment\u201d while on the territory of the United States. A single meeting on US territory is sufficient <\/span>8<\/sup><\/a><\/span><\/span>. The DoJ can thus establish jurisdiction over a foreign company in relation to a corrupt scheme carried out abroad, as long as an offense related \u2013ever so subtly\u2013 to the commission of the crime is deemed to be committed on US territory <\/span>9<\/sup><\/a><\/span><\/span>. This broad interpretation of the territorial jurisdiction criterion culminates in an intensification of extraterritorial prosecutions, which heightens the risks of criminal corporate liability.<\/p>\n\n\n\n

Sensibly, international criminal law should counterbalance the excessive impact that concurrent prosecutions have for a defendant by applying the double jeopardy principle, which prohibits multiple prosecutions or sentences against the same person for the same offense. However, the state of the law is such that double jeopardy is inapplicable to concurrent extraterritorial proceedings vis-\u00e0-vis transnational corruption.<\/p>\n\n\n\n

B. The inapplicability of double jeopardy to extraterritorial prosecutions<\/h3>\n\n\n\n

Parallel prosecutions initiated by States against companies are not regulated by international criminal law, the principle being that States are in full control of criminal proceedings within their territory. This is because the prosecution by a State of criminal offenses perpetrated on its territory is a sovereign prerogative, which cannot be limited because of a previous action undertaken by another State. Double jeopardy has thus no international scope per se<\/em> in France or in the United States.<\/p>\n\n\n\n

In addition to the protection of public order within a given territory, more pragmatic considerations are involved, such as the fear that companies will engage in forum shopping by deciding to disclose suspicious facts to a more lenient authority, or that companies will receive a more favorable treatment from countries of which they are nationals <\/span>10<\/sup><\/a><\/span><\/span>. <\/p>\n\n\n\n

These considerations account for the fact that no international agreement or bilateral treaty between France and the United States has expressly enshrined a transnational application of double jeopardy, which would open the possibility to overcome the territorial jurisdiction criterion and to adopt a different standard based on public interest.<\/p>\n\n\n\n

In the European Union, Member States are certainly encouraged to form joint investigation teams \u2013as it was the case with the PNF and the SFO for the Airbus case, settled on January 31, 2020 <\/span>11<\/sup><\/a><\/span><\/span>. The Agreement on mutual legal assistance signed by the EU and the US on June 25, 2003 allows the organization of joint investigation teams on the territory of each Member State and of the United States, yet it does not include the regulation of prosecutions <\/span>12<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

Between the States party to the Schengen Convention, the double jeopardy principle is spelled out in Article 54 ; the latter is nonetheless offset by Article 55, which allows a party to set it aside if it claims territorial jurisdiction. There is one exception to this exclusion under Article 55 a), i.e. when the foreign State claims jurisdiction partially on territorial grounds ; however, this exception holds only for States party to the Convention.<\/p>\n\n\n\n

If the matter of concurrent prosecutions has been dealt with as far as internationally punishable offenses are involved, the solution has only focused on voluntary cooperation between States. Under Article 4\u00a73 of the OECD Convention, in case of concurrent jurisdiction, States shall consult, in order to determine which one is \u201cthe most appropriate\u201d for prosecution <\/span>13<\/sup><\/a><\/span><\/span>. Yet this non-binding provision provides merely an incentive <\/span>14<\/sup><\/a><\/span><\/span> and no formal consulting procedure has been set up in France to tackle the issue of the exercise of concurrent jurisdiction <\/span>15<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

If the matter of concurrent prosecutions has been dealt with as far as internationally punishable offenses are involved, the solution has only focused on voluntary cooperation between States.<\/p>astrid mignon colombet<\/cite><\/blockquote><\/figure>\n\n\n\n

Furthermore, the application of the International Covenant on Civil and Political Rights of December 16, 1996 cannot be sought ; while Article 14\u00a77 provides that concurrent prosecutions are prohibited regardless of formal conditions of territoriality, the United States made a reservation and explicitly declared that this provision was not automatically enforceable.<\/p>\n\n\n\n

As for France, while some trial judges created a window for the transnational application of double jeopardy in virtue of the International Covenant of 1966, the Criminal Chamber of the French Cour de Cassation shut the door in 2018. In its ruling of March 14, 2018 concerning the first phase of the \u201cOil for food\u201d case (on the circumvention of the humanitarian program set up by the UN in Iraq), the court refused to apply ne bis in idem<\/em> and rejected a res judicata<\/em> impediment, grounded on a guilty plea signed between Vitol and the DoJ, once the Paris Appellate Court decided it had territorial jurisdiction <\/span>16<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

In the same year, the French Cour de Cassation rejected the contention of a British defendant \u2013already convicted and severely punished in the US\u2013 that its guilty plea limited the exercise of his rights of defense in France and that the offense  was perpetrated for the most part abroad <\/span>17<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

Again, the French Cour de Cassation refused to apply double jeopardy in circumstances that would have warranted a shift in its centuries-old case law. Yet it decided to maintain its established stance against the advancement of the emerging transnational negotiated justice, as well as the strengthening of cooperation between States. In fact, the French Cour de Cassation has held since 1862 that foreign criminal convictions do not benefit from res judicata<\/em> when the related offense is committed within the French territory <\/span>18<\/sup><\/a><\/span><\/span>. The consistent solution stems from a narrow interpretation of French statutes that can be condensed into three statements : France has jurisdiction for criminal offenses committed wholly or partly within its territory <\/span>19<\/sup><\/a><\/span><\/span> ; a foreign final judgement does not constitute a res judicata<\/em> impediment when the related facts take place, even partially, in France <\/span>20<\/sup><\/a><\/span><\/span> ; by contrast, double jeopardy applies and thus the foreign judgment is binding for the courts of the State of which either the perpetrator or the victim are nationals, if the offense was committed wholly abroad <\/span>21<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

It is clear that the international scope of double jeopardy is particularly limited if French territorial jurisdiction is to be broadly understood ; to put it in another way, in the words of a commentator : \u201cit is enough that the offense be \u201cexperienced\u201d territorially\u201d <\/span>22<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

There are several downsides for defendants in refusing to apply ne bis in idem<\/em>. They can in fact be subject to multiple prosecutions for the same offence in different States and in different ways \u2013be they trials or settlements before a prosecutor\u2013 or face the resuming of a prosecution that was previously discontinued <\/span>23<\/sup><\/a><\/span><\/span>. These examples of \u201cnon-coordinated multi-jurisdictional\u201d cases \u2013as the OECD meaningfully qualifies them\u2013 contribute to making defendants more vulnerable, by subjecting them to higher uncertainty because of both concurrent and consecutive prosecutions, thus strengthening the impression of an extraterritorial chaos.<\/p>\n\n\n\n

Such uncertainty is felt as particularly unfair in matters related to foreign bribery, when offences that involve, by definition, potential nexus to several foreign countries are penalized and prosecuted under the aegis of the OECD.<\/p>\n\n\n\n

For this reason, a different form of empirical self-regulation of prosecutions is developing in the framework of transnational negotiated justice, on the initiative of both defendants and prosecutors, as a way to overcome the inability to apply double jeopardy among sovereign States in similar circumstances.<\/p>\n\n\n\n

II. Self-Regulation of Prosecutions through Transnational Negotiated Justice<\/strong><\/h2>\n\n\n\n

As international agreements and the case-law of the French Cour de Cassation do not afford us the possibility of regulating concurrent prosecutions at the national level, the solution appears to lie in the trend towards self-regulation of such proceedings that is promoted by US prosecutors themselves. Paradoxically, after being the main driver of the increase in extraterritorial prosecutions, the latter put into place, in coordination with prosecutorial authorities from other countries, empirical means of regulating concurrent prosecutions relating to transnational bribery. Upon closer inspection, these agreements, published on the websites of the US DoJ, of the British SFO or of the Agence fran\u00e7aise anti-corruption <\/em>(\u201cAFA\u201d), are a privileged observation point of the growing cooperation among States, case after case.<\/p>\n\n\n\n

We can thus observe that the practice of coordinated settlements is flourishing. The first, emblematic, case dates back to 2008 ; it involves Siemens, a German company, prosecuted for violations of the US FCPA and the corresponding German statute <\/span>24<\/sup><\/a><\/span><\/span>. In December 2008, the DoJ announced a guilty plea from Siemens AG, as well as from three of its subsidiaries, and noted that these agreements were the result of a close coordination with the prosecutors in Munich. The case ended with the settlement of a USD 1.6 billion total fine, half of which went to the US authorities. For its part, the prosecutor in Munich announced the conclusion of a negotiated settlement with Siemens AG. Moreover, the US Attorney for the District of Columbia, Jeffrey A. Taylor, stated that this case set a \u201cstandard\u201d for multilateral cooperation in the fight against corruption <\/span>25<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

Cooperation amongst prosecution authorities has indeed been increasing during the last decade <\/span>26<\/sup><\/a><\/span><\/span> and coordinated settlement agreements have multiplied. Thus, on February 18, 2016, VimpelCom, a Dutch company, entered into a \u201cglobal\u201d settlement agreement with US authorities and Dutch prosecutors over bribery in Uzbekistan <\/span>27<\/sup><\/a><\/span><\/span>. Since then, more than a dozen of coordinated agreements were entered into between authorities from several countries and companies, such as, most recently, Airbus <\/span>28<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

The advantage of a multi-jurisdictional negotiated agreement over national proceedings is the possibility of bringing all prosecuting States together at the same time (the time of the negotiation) and in the same symbolic shared space (as the objectives of the fight against corruption are universally shared). The negotiating table makes it possible to do away with national borders, at least during the time of the discussion. This interval becomes a de-territorialized space where decisions concerning the amount of the settlement fine and its allocation among States, the State conducting the investigation, the location of the offence or the prosecutable facts, become possible <\/span>29<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

The negotiating table makes it possible to do away with national borders, at least during the time of the discussion. This interval becomes a de-territorialized space where decisions concerning the amount of the settlement fine and its allocation among States, the State conducting the investigation, the location of the offence or the prosecutable facts, become possible.<\/p>astrid mignon colombet<\/cite><\/blockquote><\/figure>\n\n\n\n

 For 20 years, between 1999 and 2019, the OECD has registered 890 cases of bribery of foreign public officials being prosecuted, 78 % of which by means of negotiated agreements.<\/p>\n\n\n\n

Self-regulation mainly concerns two aspects : first, the allocation of the amounts of the fine ; second, State\u2019s waiver of prosecution to the benefit of a different State, deemed better suited to prosecute (A). Such self-regulation, ever more common, is nevertheless still weak, as it depends as much on the prosecutors\u2019 intent to coordinate with each other, as on the companies\u2019 interest in cooperating with them. It seems therefore necessary to formalize these criteria of regulation both within each State, and in a treaty framework (B).<\/p>\n\n\n\n

A. Self-Regulation of Prosecutions through Fines Allocation and Prosecutions Referrals<\/h3>\n\n\n\n

The first type of self-regulation of prosecutions, very much on the rise, applies double jeopardy at the stage of the \u201cpenalty\u201d, i.e. the moment when the amount of the settlement fine is calculated and its allocation among prosecuting authorities is decided ; the second type, more recent and inconspicuous, intervenes at the enforcement stage.<\/p>\n\n\n\n

1. The Empirical Application of Double Jeopardy at the Penalty Enforcement Stage<\/h4>\n\n\n\n

Once prosecutors decide to coordinate with each other, they have to agree on the total amount of the settlement fine inflicted to a company. The fine comprises a disgorgement, i.e. restitution of the profit obtained from the illegal operation, and an amount corresponding to the penalty for the illegal behavior (the profit affected by a multiplying factor). As the amount of the fine is determined, the prosecuting authorities can divide the total and share it between them. Daniel Kahn, director of the DoJ\u2019s FCPA division, in an article published in 2008, systematized the practice of distributing the fine to several authorities <\/span>30<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

The survey is interesting as it shows that such distribution is based on several criteria that vary depending on the case at hand, and that French courts do not necessarily apply it in the same way. In some cases, the United States share half of the amount of the fine with other States, whereas in others the distribution method is more complex. For instance, in the 2016 Odebrecht SA case, a settlement agreement was entered into by the Brazilian company, Switzerland and the United States, for a total of USD 2.6 billion. The United States and Switzerland each received 10 % of the total amount, with 80 % going to Brazil. In his comments on this settlement, Daniel Kahn explained that the offence took place mostly within the territory of Brazil, that the Brazilian authorities started the investigation and played a decisive role in it, which explains why Brazil collected  the largest part of the fine <\/span>31<\/sup><\/a><\/span><\/span>.While it is not always easy for an outsider reading the DPA agreements to grasp the criteria determining the allocation of the amount of the fine, the FCPA division of the DoJ explained that it takes into account various factors such as the location of the illegal activities or of the suffered damages, the victims\u2019 residence, the location of company headquarters and the nationality of the defendants, the State starting the investigation, as well as the time and means spent on it <\/span>32<\/sup><\/a><\/span><\/span>. In essence, a survey of the agreements shows that the allocation of the total fine reveals the understanding among different States on the jurisdiction criteria that they deem essential.<\/p>\n\n\n\n

A survey of the agreements shows that the allocation of the total fine reveals the understanding among different States on the jurisdiction criteria that they deem essential.<\/p>astrid mignon colombet<\/cite><\/blockquote><\/figure>\n\n\n\n

Thus, besides territoriality and nationality, procedural criteria (initiation of prosecutions, means and intention to prosecute) constitute a guidance criterion that may grant the State where the offence was carried out, or where the company is registered, a substantial portion of the fine. The Airbus SE case, in which 58 % of the overall fine was allotted to France, illustrates the theory according to which most of the fine is allocated to the State whose territorial, personal or procedural jurisdiction is most evident.<\/p>\n\n\n\n

Besides these criteria, the goal of such allocation is indeed to be able to \u201ccredit\u201d the portion of the fine paid to one authority, in order to deduce it from the amount paid to another, when coordinated investigations cover identical offences. This mechanism of fine deduction is applied in coordinated settlement agreements. Most DoJ press releases use the same expression : \u201cThe Department agreed to credit the criminal penalty paid to the foreign authorities as part of its agreement with the company\u201d. By subtracting the fine paid to the one from the sum requested by the other for the same offence, the principle of double jeopardy finds application and the impact of double \u201cconvictions\u201d is mitigated.<\/p>\n\n\n\n

This deduction mechanism was officialized by the instructions on criminal prosecution policy issued by Deputy Attorney General Rod Rosenstein on May 9, 2018 <\/span>33<\/sup><\/a><\/span><\/span>. Metaphorically speaking, these instructions aim at preventing \u201cpiling on\u201d \u2013with reference to the move whereby football players jump on a pile of other players while the opponent is  already tackled <\/span>34<\/sup><\/a><\/span><\/span>. The instructions were eventually integrated in the Justice Manual collecting the guidelines directed to federal prosecutors <\/span>35<\/sup><\/a><\/span><\/span>. The said guidelines instruct US prosecutors to seek, as far as possible, a coordination with foreign authorities and to take into account, if need be, the amount of the penalties already paid to the latter in order to settle a case that involved the prosecution of a company for identical offences <\/span>36<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

The PNF and the AFA share this approach for avoiding \u201cpiling on\u201d ; in fact, their guidelines issued on June 27, 2019 expressed the intention to interact with prosecution authorities in several countries investigating the same offences, so as to have a better overview of the fines and penalties paid by prosecuted companies <\/span>37<\/sup><\/a><\/span><\/span>. The Hempel case, in which a Danish company agreed to pay USD 33 million to settle bribery charges after negotiating with the Danish and German authorities, shows that within the European Union the practice has prospered with no intervention from the DoJ <\/span>38<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

Following this trend, we get the impression that what is impossible or hardly admissible before the courts of each State becomes possible in transnational negotiated settlements (coordinated resolutions among various countries).<\/p>\n\n\n\n

Yet the French legal system features a similar mechanism of fine subtraction when identical offences are committed by the same individuals. The Criminal Chamber of the French Cour de Cassation agrees to take penalties inflicted by foreign authorities into account when determining the amounts of the fine to be set by French courts <\/span>39<\/sup><\/a><\/span><\/span>. This follows from the principle of proportionality in sentencing, which implies that the total amount of the penalties, if any, must not exceed the higher penalty applicable to one of the offences <\/span>40<\/sup><\/a><\/span><\/span>. This principle has recently been applied in matters relating to financial sanctions resulting from a settlement : trial judges agreed to take into consideration a foreign penalty pursuing the same objective as the French one, i.e. seizure of the proceeds of the crime <\/span>41<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

Therefore, unlike traditional national justice, transnational negotiated justice allows States to allocate the amount of a fine in a concerted way. The growing success of such cooperation on the amount of the fine may encourage States to consult on the issue of which State is the most appropriate for prosecuting alleged offences.<\/p>\n\n\n\n

2. The Empirical Application of Double Jeopardy at the Beginning of the Prosecution<\/h4>\n\n\n\n

The execution of coordinated agreements aiming at limiting the global amount of settlement fines ultimately borne by companies is not always satisfactory ; it protects only from double penalties, not from concurrent or parallel prosecutions representing a heavy burden on defendants. Furthermore, States may refuse to cooperate with one another, or companies may prefer challenging the allegations in court.<\/p>\n\n\n\n

In such cases, cooperation among States for the purpose of determining, before the initiation of any proceedings, which State has jurisdiction to prosecute a criminal offence internationally prosecuted is a full-fledged application of ne bis in idem<\/em>. Yet this is still uncommon. The first action \u2013subject to much commentary\u2013 that took place in 2014 on the initiative of Dutch prosecutors related to the SBM Offshore case. This Dutch company settled bribery charges with the Dutch prosecution, and the DoJ put an end to its investigation for lack of jurisdiction. However, the waiver of prosecution was only temporary, and the DoJ reopened the investigation two years later on the basis of new evidence, which led the company to settle in 2017 by way of DPAs and guilty pleas <\/span>42<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

Nevertheless, there is another recent interesting example of a waiver of prosecution. The DoJ announced on August 20, 2018 that it will halt the prosecution of G\u00fcralp Systems Limited for several reasons, most notably because the British company\u2019s main center of business was situated in the United Kingdom and the UK SFO was running a parallel investigation for the same offences, with the company admitting liability before the SFO.<\/p>\n\n\n\n

This case can be seen as an informal application of Article 4\u00a73 of the OECD Convention, the spirit of which is to encourage States to cooperate to determine which one is the most fit to lead the prosecution. While the said Article does not explicitly state the criteria under which a State can forego prosecutions to the advantage of a different State, the US Justice Manual includes three criteria for waiving prosecution when a foreign prosecutor has already initiated proceedings against the same individuals <\/span>43<\/sup><\/a><\/span><\/span>. The following elements must be determined : \u201cthe strength of the jurisdiction\u2019s interest\u201d), the \u201cability and willingness to prosecute effectively\u201d and the \u201cprobable sentence upon conviction\u201d <\/span>44<\/sup><\/a><\/span><\/span>. Once these criteria reviewed, there should be nothing to prevent the DoJ from letting foreign authorities prosecute crimes falling within the purview of their jurisdiction.<\/p>\n\n\n\n

However, besides the fact that this waiver of prosecution is decided unilaterally and thus remains precarious, these guidelines concern only prosecutions by US authorities, whereas coordinated settlement agreements are expected to prosper without a US involvement.<\/p>\n\n\n\n

Besides the fact that this waiver of prosecution is decided unilaterally and thus remains precarious, these guidelines concern only prosecutions by US authorities, whereas coordinated settlement agreements are expected to prosper without a US involvement.<\/p>astrid mignon colombet<\/cite><\/blockquote><\/figure>\n\n\n\n

For this reason, it is necessary to set waiver criteria in a treaty framework.<\/p>\n\n\n\n

B. Regulation of Prosecutions by Means of State cooperation within the Framework of the OECD<\/strong><\/h3>\n\n\n\n

In numerous cases, applying double jeopardy at the stage of initiation of proceedings for transnational bribery appears to be the most appropriate way to avoid the arbitrariness embodied in excessive penalties, often set after consecutive prosecutions. Under current law, there is precisely no obligation for States to cooperate or consult in case of competing jurisdictions. Article 4\u00a73 provides for a consultation, but at the behest of one of the States involved. Absent such request, no consultation can occur.<\/p>\n\n\n\n

It thus seems necessary to rethink the foundations of cooperation on transnational prosecutions in a treaty-based multilateral framework, to avoid self-regulation being a burden ultimately borne by companies. The OECD provides us with a befitting framework to strengthen such cooperation <\/span>45<\/sup><\/a><\/span><\/span>.<\/p>\n\n\n\n

In order to make such cooperation wholly effective, it would be advisable to formalize a duty for States to consult with one another on the best strategy to limit the negative impact of concurrent prosecutions, as it is the case in France concerning European prosecutions, under Art. 695-9-54 of the French Criminal Procedure Code <\/span>46<\/sup><\/a><\/span><\/span>. Besides, States should agree on criteria allowing them to address conflicts of jurisdiction, so that the United States is not left alone in bringing clarity to the situation.<\/p>\n\n\n\n

While territorial jurisdiction should maintain its pre-eminent place, an excessively broad application of the territoriality criterion \u2013i.e. tying to the forum circumstances that have no direct and substantial impact on local public order <\/span>47<\/sup><\/a><\/span><\/span>\u2013 should be deterred.<\/p>\n\n\n\n

The State whose public order is affected the most (for instance, due to the structure of the corrupt system within its territory or of the bribery of public official) still has to clearly and vigorously express its will to prosecute in the most effective way offences committed on its territory.<\/p>\n\n\n\n

Yet, should it become clear that such State is not able to conduct the prosecution by itself, other criteria such as the \u201cnationality\u201d of the accused company could be applied. In any case, it seems that a broad, and thus artificial, application of jurisdiction criteria needs to be abandoned, as soon as each State acquires the means to effectively prosecute bribery and is enabled by the international community to participate in coordinated settlements.<\/p>\n\n\n\n

While transnational negotiated justice is not yet the cornerstone of an organized mechanism, it represents nonetheless a new step towards the reordering of extraterritorial proceedings supported by prosecutors\u2019 and companies\u2019 self-regulation. The latter, if ultimately enshrined in a multilateral treaty framework, could strengthen cooperation and coordination among States. A deepening debate among States is indeed the prerequisite for the development of mutual trust, which will eventually discourage concurrent prosecutions against the same defendant. <\/p>\n","protected":false},"excerpt":{"rendered":"

The fight against transnational corruption has long remained the prerogative of the United States. Nowadays, the first resolution agreements coordinated among several States testify to a global awareness. Astrid Mignon-Colombet takes stock of the situation and asks a question : could transnational negotiated justice become the cornerstone of an organized extraterritoriality ?<\/p>\n","protected":false},"author":620,"featured_media":82610,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"templates\/post-briefings.php","format":"standard","meta":{"_acf_changed":false,"_trash_the_other_posts":false,"_yoast_wpseo_estimated-reading-time-minutes":0,"footnotes":""},"categories":[1989,2321],"tags":[],"staff":[2519],"editorial_format":[4942],"serie":[],"audience":[],"geo":[1917],"class_list":["post-82598","post","type-post","status-publish","format-standard","hentry","category-acces-libre","category-red","staff-astrid-mignon-colombet","editorial_format-actu-breves","geo-europe"],"acf":{"open_in_webview":false,"accent":false,"_thumbnail_id":82610,"excerpt":"The fight against transnational corruption has long remained the prerogative of the United States. 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