Nadja Capus and Kei Hannah Brodersen
Corporate foreign bribery can have devastating consequences on communities and states. Over the past decade, there have been several promising developments, both national and…
Abstract
Purpose
Corporate foreign bribery can have devastating consequences on communities and states. Over the past decade, there have been several promising developments, both national and international, that might increase the chances of victim states to receive remediation for the harm they suffered from foreign bribery. In particular, awareness has risen that victim states must be considered and new innovative items have been added to the toolbox of prosecutors in the fight against corruption that is assumed to also improve victim states’ standing in these procedures. This study aims to assess whether indeed victim states receive compensation through these novel procedures.
Design/methodology/approach
This study uses the three case studies of Switzerland, France and England and Wales for a comprehensive empirical and normative analysis of settlement agreements between defendants and prosecution authorities and of court jurisprudence.
Findings
This study shows that although de jure, it seems warranted to order the payment of remedies to victim states within domestic criminal proceedings, in practice, this rarely happens. A number of legal and practical obstacles account for this situation. This study, therefore, calls for the formulation of international guidelines containing the obligation to inform victim states of ongoing criminal proceedings on corporate foreign bribery, and guidance on how to identify the victim of this crime, as well as the damage caused.
Originality/value
This is the first contribution to verify whether claims that settlement agreements, recently introduced in England and Wales and France (and similar procedures are available in Switzerland), are beneficial for victim states in their quest to receive compensation. As this study shows that this is – not yet – the case in practice, this study proposes solutions that could lead the way for remediation of the harm caused by corporate corruption – and thereby, ultimately, to a more just outcome.
Details
Keywords
Examines the Swiss Money Laundering Act enacted in October 1997; this set up 12 self‐regulation bodies to take control of the financial market and has thus blurred the distinction…
Abstract
Examines the Swiss Money Laundering Act enacted in October 1997; this set up 12 self‐regulation bodies to take control of the financial market and has thus blurred the distinction between private and public law. Points out that the Act has not been implemented easily and the deadlines not met: this applies to the self‐regulation, the planned cooperation between government and private sector, and the creation of other bodies. Outlines the contents of the Act and the status of its implementation. Reviews the policy of self‐regulation as an expression of the new governmentality: the concept of “governance at a distance” or state controlled self‐regulation. Explores the dangers and problems with these concepts: for instance, private organisations are allowed as insiders to have a say in governmental action programmes, private organisations’ risk management policies may actually hinder unusual events being noticed, and there is fragmentation at the regulatory level.