Transnational corporate bribery involves companies bribing foreign public officials to obtain or retain business in their international business dealings. Prosecutorial authorities are faced with multiple investigatory and prosecutorial hurdles in relation to this type of crime due to the complex structural and transnational nature of corporate activities (Chan et al., 2021). In about 27 jurisdictions, approximately two-thirds of all corporate bribery cases are settled without a full court proceeding (OECD, 2019) in an effort to mitigate these difficulties (Perez, 2020). An array of legal mechanisms (Lord, 2022) allows such settlements, but they share the following three elements: negotiation between the defendant company and the prosecutorial authority, consensus-driven procedure, and broader prosecutorial discretionary powers. Prosecutors not only determine whether to investigate or prosecute foreign bribery crimes (Lord, 2014:108), but they also decide on the appropriate criminal sanctions (Barkow and Barkow, 2011:1). Generally, the use of settlements is expanding in corporate liability cases (Søreide and Vagle, 2020), and in the field of anti-corruption enforcement, settlement procedures are already the ‘new normal’ (King and Lord, 2018:1). This is also the case in England and Wales. Since 2014, deferred prosecution agreements (DPAs) make it possible for the Serious Fraud Office (SFO), the main prosecutorial authority against complex financial crime, to defer the prosecution of companies accused of transnational corruption in exchange for their cooperation in the investigation of such crimes (Chan et al., 2021; Schedule 17). Companies who cooperate with the investigation of bribery within their organisational structures enter into a tailor-made settlement with the SFO. The prosecutorial decision to defer prosecution in exchange for cooperation and the negotiated terms of the settlement are only published (Chan et al., 2021, Schedule 17, §8 (7)) after their validation by a Crown Court (Chan et al., 2021;)
Keywords: Impression management Settlement storytelling Prosecutor Corporate bribery Deferred prosecution agreements Narrative criminology
Nadja Capus, Melody Bozinova
University of Neuchˆatel, Faculty of Law, Av. du 1er-Mars 26, CH-2000, Neuchˆatel, Switzerland