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The IBA’s response to the war in Ukraine
On 26 November 2021, the OECD issued a Recommendation of the Council for OECD Legal Instruments Further Combating Bribery of Foreign Public Officials in International Business Transactions. The Recommendation contains, among other things, guidance on the use of non-trial resolutions.
This recommendation will have a significant effect on the investigation, prosecution, and resolution of international bribery cases.
Project Roll Out is an effort by the International Bar Association to participate in the conception and implementation of these new rules.
Those interested in participating in Project Roll Out should contact Peter Solmssen, Chair of the Non-trial Resolutions of Bribery Cases Subcommittee
Read a summary of the IBA's position
NTRs improve the enforcement environment, and public policy outcomes, for companies governments and the public at large. For companies, NTRs can provide greater certainty by allowing the company to engage with multiple sovereigns and government agencies proactively and simultaneously, which leads to better and more final outcomes than would otherwise be reached. And because NTRs are often announced at the same time as charges, they can limit the time period a company experiences “bad press.” This is especially true when companies are able to resolve matters across multiple jurisdictions at once.
For government entities, NTRs can help save resources through both eliminating costly trials and incentivizing self-disclosure and cooperation from the companies themselves. NTRs also help facilitate resolutions across jurisdictions.
Additionally, by incentivizing investments by companies in compliance programs, internal controls, self-reporting and cooperation with investigating government agencies, NTRs can strengthen a country’s corporate culture and generally promote cooperation between good corporate citizens and governments.
While once fairly rare, now over 80% of foreign bribery cases are resolved through negotiated settlements or non-trial resolutions. That percentage is growing as more and more countries accept, formally or informally, the desirability of resolving complex and costly foreign bribery investigations through non-trial resolutions.
There are, however, difficult issues that need to be resolved, and the new international guidelines are necessary and desirable.
The growing phenomenon of non-trial resolution of foreign bribery offences motivated the IBA Anti-Corruption Committee to set up the Structured Criminal Settlements Subcommittee (SCSS) in 2016. The IBA Report, ‘Structured Settlements for Corruption Offences: Towards Global Standards?’ is the result of a two-year project to map regulations and best practices regarding settlements in foreign bribery cases across the globe. With contributions from 66 countries, the IBA Report provided an up-to-date and comparative overview of salient issues relating to structured settlements for corruption offences from diverse national viewpoints.
In the process of investigating national practices for resolving foreign bribery cases without full trials, the subcommittee learned that the term 'non-trial resolution' was a more appropriate term than 'negotiated settlement', and accordingly changed its name.
To ensure that these aims are met and that IBA policies are pursued consistently, the IBA has organised Project Roll Out under the leadership of the Non-Trial Resolutions Subcommittee of the Anti-Corruption Committee of the LPD.
After a kickoff in New York where Drago Kos, Chairman of the OECD Working Group on Bribery, announced the adoption of the new guidelines on non-trial resolutions, Project Roll Out started. Lawyers are encouraged to evaluate the guidelines for the effect they will have on practice in their countries. The IBA will be organising conferences on the many facets of the new guidelines, such as mutual assistance, data protection laws and non bis idem.
One of the primary aims of Project Roll Out is to provide a forum for individuals from all stakeholder sectors – regulatory and enforcement, corporate, NGOs and the private bar - across regions to share their experience with NTRs in their legal systems and foster discussions that will facilitate not only best practices in NTRs but also useful tips and lessons learned from implementing NTRs in their systems. Towards that goal, the IBA will be hosting a series of conferences over the next year to facilitate those discussions and highlight key developments across the globe.
Conferences are currently being planned in Switzerland, Mexico, and Singapore.
Further information about the conferences will be posted on this site as it becomes available.