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  • Global Challenges

    Workshop: Settling Foreign Bribery Cases: A Deterrent or a Dodge?

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    Coordinator and Moderator: Nancy Boswell, President & CEO, Transparency International USA

    Rapporteur: Shruti Shah, Senior Policy Director, Transparency International USA

    Panelists:

    Mark F. Mendelsohn, Partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP (Former Deputy Chief of the Fraud Section, Criminal Division, United States Department of Justice)

    Richard Alderman, Director of the Serious Fraud Office, Government of United Kingdom

    Elena A. Panfilova, Director, TI Russia

    Michael Thun, Chief Compliance Officer, Ferrostaal AG (Former Compliance Officer Europe at Siemens AG)
    Workshop Abstract:

    According to the World Bank, over $1 trillion in bribes are paid annually, undermining development, distorting business competition and impeding foreign investment. Although most of the world’s governments are now parties to multilateral conventions prohibiting foreign bribery, implementation and, particularly, enforcement of foreign bribery laws is still inadequate. Nonetheless, recent cases show that some prosecutors are already using ‘settlements’ rather than prosecuting cases. The contours of these settlements vary widely, raising questions whether they will have the deterrent impact necessary to stem foreign bribery.

    This IACC workshop will explore the range of elements included in major settlement actions (deferred prosecution, remediation, monetary penalties, debarment, imposition of monitors), the perspectives of leading prosecutors, corporations and NGOs from different countries (United States, United Kingdom, Germany, and Russia) on the advantages and disadvantages of using settlements, with a view to defining ‘best practice’ in foreign bribery cases.

    Panelists Discussion:

    Mr. Mendelsohn will discuss the US approach to prosecution and the use of deferred prosecution and non-prosecution agreements. He will describe the contours of DPAs under US practice, such as requiring companies to admit wrongdoing, pay stiff penalties, co-operate in ongoing investigations and implement anti-bribery compliance programs with external monitors.

    Mr. Alderman will discuss the Serious Fraud Office’s guidance on the benefits of self-reporting on overseas corruption and the criteria the SFO will apply when deciding how to treat a self-reported matter. He will also discuss the the extent of investigation which the SFO will consider appropriate, the circumstances for appointing monitors, treatment of attorney-client privilege, and whether the SFO will close a voluntary disclosure case without taking action.

    Mr. Thun will discuss settlements from the perspective of a company that has concluded such an agreement. He will discuss the impact of the settlement on the company’s compliance program, provide insights on dealing with the U.S. government and the credit given for cooperation as well as Siemens’s experience with the monitor.

    Ms Panfilova will discuss the impact of settlements on the victims of bribery and how a settlement in one country is likely to have an impact on investigations in the country where the bribes were alleged to have been paid. She will discuss what elements settlements need to contain to take these issues and the public interest into account.

    Expected Findings:

    The workshop will aim to identify guiding principles on how settlements should be used by law enforcement and the elements of effective settlements in order to stem foreign bribery and to promote corporate integrity.

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