The Value of Negotiated Settlements in Foreign Bribery Cases

Abstract

As negotiated settlements for corruption offences spread across jurisdictions, the appropriateness and value of such settlements for the sanctioning of the serious offence of foreign bribery is the subject of increasing contention. Questions are posed about the compatibility of negotiated settlements with the rule of law. Questions are also posed about the actual deterrent effect of negotiated settlements. This paper explores the ‘value’ of negotiated settlements and argues that we must use the right metric for this assessment. The paper argues that while metrics may indeed be developed to measure how ‘effective’, ‘proportionate,’ or ‘dissuasive’ negotiated settlements are as a sanction against corruption, the better metric of ‘value’ is probably found in Art. 1(c) of UNCAC, i.e. to ‘promote integrity, accountability and proper management of public affairs and public property’. Accountability and enforcement is, and has always been, the albatross of the fight against corruption. Negotiated settlements provide an alternative mechanism of enforcement that is arguably more suited to the environment in which foreign bribery occurs. In addition, the paper argues that that the ‘value’ of negotiated settlements depends on the particular context from which it is viewed. Conclusions reached in one context about negotiated settlements may not be relevant with regard to another context. However, whether viewed from a corporate criminal punishment context, or, from a rule of law context, or, from a good governance context, encouraging self-policing, self-reporting and the self-regulation, may, very simply, be the only way to bridge the impunity gap of institutionalized corruption. Bridging that gap is the true value of negotiated settlements.