Non-trial Resolutions of Bribery Cases Subcommittee

The Non-trial Resolutions of Bribery Cases Subcommittee is partnered with the IBA Anti-Corruption Committee

Introduction

While once fairly rare, now over 80% of foreign bribery cases are resolved through negotiated settlements or other so-called “non-trial resolutions” (“NTRs”). That percentage is growing as more and more countries accept, formally or informally, the desirability of resolving complex and costly foreign bribery investigations through NTRs. In 2018, the IBA published a global study showing that most countries around the world that enforce their foreign bribery laws use some form of negotiated settlement or non-trial resolution to resolve international bribery cases before a full trial and verdict. However, in many countries, there is no formal or transparent framework in place regarding how and when non-trial resolutions are used, leading to confusion, inequitable outcomes, and a lack of transparency for both companies, enforcement authorities and the public.

Lawyers and corporations have tried for years to address this. The international private bar, including the IBA, played a key role in encouraging the OECD to adopt guidelines for NTRs, which the OECD did in their 2021 Recommendations.

International guidelines for non-trial resolutions (NTRs) of foreign bribery cases

On 26 November 2021, the OECD issued its Recommendation of the Council for OECD Legal Instruments Further Combating Bribery of Foreign Public Officials in International Business Transactions. These Recommendations are the first set of international guidelines for the successful use of NTRs, and will have a significant effect on the investigation, prosecution, and resolution of international bribery cases around the world.

The Recommendations provide detailed guidance on best practices for the use of NTRs, including requiring that countries prioritize clarity and transparency in how NTRs are structured, the criteria applied to determine when NTRs are appropriate, and how enforcement will be carried out. Additionally, the OECD’s recommendations emphasize that NTRs should be public and should not serve as an obstacle to effective investigation of misconduct or to the prosecution of other potentially culpable persons, either natural or legal.

Project Roll Out

Project Roll Out is an effort by the International Bar Association to encourage the adoption of NTRs for international corruption case across the world. Find out more about Project Roll Out and how you can help here. Those interested in participating in Project Roll Out should contact Kara Novaco Brockmeyer, Chair, or Tom Best, Vice Chair, of the Non-trial Resolutions of Bribery Cases Subcommittee.

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