Construction of a bridge over Cumberland River between Burnside, Ky., and Carthage, Tenn. June 2, 1888. -- Committed to the Committee of the Whole House and ordered to be printed

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Foreword Acknowledgements Introduction Definition and Scope Data Collection and Methodology Key Findings Non-trial resolutions have been the predominant means of enforcing foreign bribery and other related offences. The last decade has seen a steady increase in the use of coordinated multi-jurisdictional non-trial resolutions. 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. With respect to legal persons, many of the resolutions concluded in prominent foreign bribery cases include large amounts of monies confiscated. Assessing whether “effective, proportionate and dissuasive” sanctions have been imposed on those who engage in foreign bribery non-trial resolutions (Article 3 of the Anti-Bribery Convention) presents a number of challenges. Chapter 1. The increasing use of non-trial resolutions to resolve foreign bribery cases 1.1. The term “resolution” describes a diverse and growing number of enforcement tools for resolving foreign bribery cases 1.2. A large percentage of foreign bribery cases are resolved through resolutions, instead of trial 1.2.1. An increasing use of non-trial resolutions among Parties to the Convention 1.2.2. Non-trial resolution mechanisms have become a driver of enforcement. 1.3. Developments in resolving foreign bribery cases 1.3.1. Current snapshot of non-trial resolutions in countries Party to the Convention 1.3.2. Historical development 1.3.3. Recent developments in the use of non-trial resolutions Countries whose first foreign bribery resolution was a non-trial resolution Countries whose foreign bribery resolutions are exclusively non-trial resolutions Countries whose non-trial resolutions enhanced their foreign bribery enforcement record 1.3.4. Recent developments in adopting non-trial resolutions Australia is considering a new Deferred Prosecution Agreement regime Canada has developed its own DPA regime following a public consultation 1.4. Resolutions have enabled the coordinated resolution of large multi-jurisdictional cases Chapter 2. Taking stock of the various forms of non-trial resolutions 2.1. Form 1 – Termination of an investigation without prosecution or other enforcement action, with imposition of sanction and/or confiscation (“Declination/NPA-like resolution”) 2.2. Form 2 – Suspension, deferral or withdrawal of prosecution or other enforcement action, subject to the fulfilment of specific conditions (“DPA-like resolution”) 2.3. Form 3 – Resolution resulting in a decision imposing sanctions without criminal conviction “civil/administrative-like resolutions”) 2.4. Form 4 – Resolution with conviction or tantamount to a conviction, but without an admission or finding of guilt (“Patteggiamento-like resolution”) 2.5. Form 5 – Plea agreement, or equivalent resolution, which requires the defendant’s admission of guilt and amounts to a conviction (“Plea Agreement-like resolutions”) 2.6. “Mixed” resolutions 2.7. The use of different forms of Non-trial resolution for enforcing the foreign bribery offence Chapter 3. The process towards the adoption of a resolution 3.1. Procedures and conditions to adopt a resolution 3.1.1. When can a resolution be reached? 3.1.2. Which authority can conclude a resolution? 3.2. Criteria and factors considered by prosecution or other relevant authority to offer a resolution 3.2.1. Three commonly cited factors: public interest, prosecution time/interest, and strength of evidence 3.2.2. Criteria and factors pertaining to the behaviour of the alleged offender Behaviour of the alleged offender prior to the resolution process - Remedial action and disciplinary measures - Compliance system - Recidivism and/or previous convictions/enforcement actions against related persons Behaviour of the alleged offender during and after the resolution process - Admission of facts - Full or partial Cooperation - Forms of cooperation either required or considered before concluding a resolution - Internal investigations - Self-reporting - Admission of guilt 3.2.3. Other factors arising from the Working Group on Bribery evaluations Complexity of foreign bribery cases Statute of Limitations/Prescription Factors forbidden under the OECD Anti-Bribery Convention 3.2.4. Is there a right for an alleged offender to enter a resolution? Discretionary power of prosecution or other relevant authorities to enter a resolution Rewarding voluntary disclosure and cooperation without exonerating offenders A business community increasingly in favour of non-trial resolutions 3.3. Incentives and guidance for an accused person to enter into a resolution 3.3.1. No incentive without deterrence 3.3.2. Incentives deriving from the process of a non-trial resolution Reducing the time of resolution Limiting costs Mitigating reputational damages 3.3.3. Incentives deriving from the outcome of a non-trial resolution Avoiding a conviction and its consequences Obtaining a reduced sanction Tying positive outcomes to the defendant’s behaviour 3.3.4. Raising awareness of the incentives through a clear framework or guidance Chapter 4. Terms and obligations of both parties under a resolution 4.1. Baseline terms of resolutions 4.2. Sanctions imposed through resolutions 4.2.1. Which entity can impose sanctions? 4.2.2. Factors taken into account to reduce sanctions in resolutions Mitigating factors taken into account for legal persons Mitigating factors taken into account for natural persons 4.2.3. Reduction of sanctions available through resolutions 4.2.4. Sanctions imposed in practice through resolutions Variation in legal frameworks and in practice Sanctions imposed in practice on legal persons through non-trial resolutions - Monetary sanctions - Imprisonment 4.3. Confiscation 4.3.1. Availability of confiscation through non-trial resolutions For legal persons For natural persons 4.3.2. Confiscation imposed in practice 4.3.3. Confiscation scenarios in practice Imposition of both a fine and separate confiscation A fine imposed in criminal proceeding and confiscation imposed in related civil proceedings A fine imposed without separate confiscation measures Confiscation measures only Confiscation in multi-jurisdictional cases 4.3.4. Proportion of amounts confiscated in overall amounts paid as a result of non-trial resolutions 4.3.5. Amounts confiscated and proceeds of bribery 4.4. Are sanctions imposed through non-trial resolutions effective, proportionate and dissuasive? 4.4.1. Possibility of comparing trial and non-trial resolutions 4.4.2. Non-trial resolutions can enable multiple jurisdictions to impose dissuasive but proportionate sanctions 4.4.3. Effectiveness and dissuasiveness of sanctions in practice Legal persons Natural persons 4.5. Other terms of resolutions 4.5.1. Exclusion from public contracting 4.5.2. Development and control of an ethics/compliance programme 4.5.3. Agreement to pay prosecution and investigative costs 4.5.4. Compensation to victims 4.5.5. Secrecy or “muzzle” clauses 4.6. Monitorships and other forms of control over the implementation of the terms of resolutions 4.6.1. Appointing monitors Where and when are monitors appointed? How monitors are selected 4.6.2. Monitor’s mandate and powers Length and scope of mandate Monitor’s duties and powers 4.6.3. Oversight for monitors Oversight over the decision to impose a monitorship Oversight during monitorship Assessing Monitorships Chapter 5. Oversight and public access 5.1. The extent of judicial and other oversight over each type of resolution 5.1.1. Resolutions concluded without any or only minimal court involvement 5.1.2. Resolutions concluded with court involvement Court involvement before resolution’s terms are agreed Court involvement in approving the resolution Court involvement in setting sanctions pursuant to a concluded resolution 5.1.3. Consequences if court does not approve resolution 5.1.4. Appealing or challenging a non-trial resolution after it is concluded 5.1.5. Oversight over compliance with the terms of the non-trial resolution 5.1.6. Oversight upon completion of monitorship 5.2. Transparency and accessibility of concluded resolutions 5.2.1. Making resolutions public and accessible 5.2.2. What information is made public? Terms of the resolution and reasons for resorting to a resolution Details of the case Chapter 6. Resolutions and related proceedings 6.1. Impact of resolutions on related domestic proceedings 6.1.1. Can evidence or materials obtained in situations in which no resolution is reached be used in separate investigations or trial? 6.1.2. Can concluded resolutions be used against other natural or legal persons? 6.1.3. Will a refusal by one (or more) defendant(s) to enter into a resolution impact the potential resolution proceedings against other defendants? 6.2. Impact of resolutions on related foreign proceedings 6.2.1. Impact of resolutions on the possibility to provide MLA in foreign proceedings against the same or other legal and/or natural persons in consecutive proceedings Impact of concluded resolutions on the decision or process to grant MLA Impact of confidentiality and muzzle clauses on the possibility to grant MLA 6.2.2. Impact of resolutions in countries where the “ne bis in idem” principle (or “Double Jeopardy”) may be recognised at international level Potential impact of the “ne bis in idem” principle on the non-trial resolutions of foreign bribery cases Different positions regarding the “ne bis in idem” principle in the Parties to the Convention and their impact on parallel or consecutive investigations in their country 6.3. Resolutions in the context of non-coordinated multi-jurisdictional cases Annex A. List of Abbreviations, terms and acronyms Annex B. Case studies 1. AgustaWestland S.p.A. and AgustaWestland Ltd (India) - 2014 2. Biomet (Argentina, Brazil, China and Mexico) - 2012/2017 3. Ballast Nedam and KPMG (Saudi Arabia and Suriname) – 2012 and 2013 4. Nikuv (Lesotho) – December 2016 5. Och-Ziff (Chad, Democratic Republic of the Congo (DRC), Libya, and Niger) – September 2016 6. Odebrecht S.A (Central and Latin America and Africa) - 2016 7. Rolls-Royce (Angola, Azerbaijan, Brazil, China, India, Indonesia, Iraq Kazakhstan, Malaysia, Thailand and Nigeria) – January 2017 8. SBM Offshore (Brazil, Angola, Equatorial Guinea, Kazakhstan and Iraq) – 2014 and 2016 9. Siemens AG (Asia, Africa, Europe, the Middle East and the Americas) - 2008 10. Société Générale (Libya) - 2018 11. Standard Bank (Tanzania) - 2015 12. Telia Company AB (Uzbekistan) – 2017 13. VimpelCom (Uzbekistan) – February 2016 resolving-foreign-bribery-cases-with-non-trial-resolutions-WEB-COVER.pdf resolving-foreign-bribery-cases-BACKCOVER.pdf Institutional-structure-of-insurance-regulation-and-supervision-BACK-COVER Blank Page