Tesi etd-12172022-230705
Link copiato negli appunti
Tipo di tesi
Dottorato
Autore
DE PAOLIS, ROBERTA
URN
etd-12172022-230705
Titolo
Dealing with the Deals: Settlement Agreements for National and International Corporate Bribery
Settore scientifico disciplinare
IUS/17
Corso di studi
Istituto di Diritto, Politica e Sviluppo - PHD IN DIRITTO
Commissione
relatore Prof.ssa MORGANTE, GAETANA
Membro Prof. Mongillo, Vincenzo
Membro Prof. Guerino, Tommaso
Membro Prof. Mongillo, Vincenzo
Membro Prof. Guerino, Tommaso
Parole chiave
- Corporations
- Corruption
- Criminal Diversion
- Settlement Agreements
Data inizio appello
03/02/2023;
Disponibilità
completa
Riassunto analitico
Corruption has been crowned as an emblematic evil of the century, on a par with cancer that adheres to a society's legal and economic mechanisms and modifies its genetic code.
This infamous reputation lies in the very physiology of corruption, that is, in that collusive dynamic that binds two parties in a partnership of silence and malfeasance. This is why the data that are collected-when possible-are often downsized, unreliable and masked. The available data return a massive presence of the so-called "black figure," the incidents that are committed and perceived but never prosecuted.
In fact, given the reciprocal nature of the criminal phenomenon, exposing all those involved to criminal liability, the corruptive bond is particularly resistant to criminal conduct. More specifically, no one is interested in reporting, especially considering that most of the protagonists of the corrupt dynamics are individuals invested in political and administrative offices, particularly integrated into the economic reality, who act in violation of their duties to the community to achieve private interests. Moreover, making the emergence of corrupt practices even more arduous is the strong ability to adapt to the environment in which they are embedded. The transformative process of corruption has been enriched by third figures capable of managing the traffic of bribes and hindering the work of reconstructing its path, to the point of geographic fragmentation. Corporations have gained a prominent role in corrupt dynamics in this latter context. Intensified economic globalization and increased international trade allowed corruption to transcend national borders and insidiously permeate from one country to another.
The moment transnational corruption became evident, its ripple effects became evident as well: namely, the distrust of citizens in the legality of institutions, the threat to international trade, all the way to the breakdown of coexistence within the international community on the political and economic levels. This extraordinary circumstance has led the international community toward increasing attention to corruption, promoting agreements and conventions designed to promote the criminal harmonization of state systems.
Despite these efforts, traditional criminal law has failed to prove equal to the task. Information asymmetry between legal practitioners and corruption actors makes an effort to meet the criminal burden of proof rather tricky. In addition, conflicts of interest of government officials often result in a lack of political will that prevents effective enforcement of anti-corruption laws. The problem necessitates the adoption of new tools. In 2014, the OECD report "An Analysis of the Crime of Bribery of Foreign Public Officials" noted a dramatic increase in the enforcement of anti-corruption laws outside the traditional criminal process, namely through negotiated agreements between companies and prosecutors. Such agreements encourage companies to adopt an effective program to prevent and deter violation of the law, to self-control, self-report and cooperate with law enforcement authorities in corruption cases. The "quid pro quo" for such cooperation is generally a decrease in punishment and several benefits to the economic survival of the enterprise. In other words, such a strategy's fundamental principle is to reward good behavior and prioritize prevention over cure. Several advantages of negotiated agreements: they offer flexibility to law enforcement, especially in cases where companies are suspected of crimes for which it is complex to provide sufficiently strong evidence; they motivate corporate offenders to self-report and cooperate; and it allows trials to conclude their course more quickly. Most importantly, it allows enforcement actions to be promoted in circumstances where the counterfactual scenario would be to surrender to impunity. However, the use of such mechanisms has received particularly polarized views.
The purpose of this thesis is to contextualize the phenomenon of corporate bribery and negotiated settlements, attempting to find a point of convergence in practice and principle. The method used is the written translation of a cinematic zoom-out, under which the phenomenon of corruption is first analyzed in the foreground until the broader context it fits is made visible, namely that of the globalized world and negotiated agreements.
More specifically, the first part is devoted to addressing corruption primarily as a generic crime, then analyzing corruption's metamorphosis within the globalized world. At this juncture, corporations and the various models of corporate liability packaged by legal systems will play a significant role. It is argued that corporate criminal liability, as it is currently configured, results in impunity in most cases.
The second part compares the functioning of traditional mechanisms of corporate criminal liability and negotiated agreements in corruption cases. To this end, the analysis will focus on the Italian and U.S. systems, comparing the lights and shadows of both approaches. Negotiated agreements will then be dropped into a domestic reality, examining how they interact with domestic needs to combat corruption.
The third and final part further zooms out the perspective as it deals with negotiated agreements in transnational corruption cases. The state of the art of this issue and the potential critical issues inherent in the fragmented use of these instruments will be addressed. The ambition will be to envision guidelines for using negotiated agreements in transnational corruption cases that can harmonize practice under international conventions, and, thus, the rule of law.
The thesis closes by answering a question: is there a context in which the application of common principles in point of negotiated agreements could be tested? The answer can be identified in the European Union, especially considering the latest reforms adopted in security and justice. In fact, as of June 2021, the European Public Prosecutor's Office, an independent institution aimed at investigating and prosecuting all those crimes deemed detrimental to the financial interests of the European Union, is operational. The European Public Prosecutor's Office institution was the result of a long gestation process fraught with political and constitutional tensions, considering that it was conceived, among other things, to help combat impunity within the European Union. Even though its role as a supranational institution has been questioned, it is clear that the general will has been directed toward creating common ground to address common problems. Ultimately, the thesis briefly outlines the potential of the European Public Prosecutor's Office in implementing a shared system of principles in using negotiated agreements in corruption cases occurring within the European Union.
This infamous reputation lies in the very physiology of corruption, that is, in that collusive dynamic that binds two parties in a partnership of silence and malfeasance. This is why the data that are collected-when possible-are often downsized, unreliable and masked. The available data return a massive presence of the so-called "black figure," the incidents that are committed and perceived but never prosecuted.
In fact, given the reciprocal nature of the criminal phenomenon, exposing all those involved to criminal liability, the corruptive bond is particularly resistant to criminal conduct. More specifically, no one is interested in reporting, especially considering that most of the protagonists of the corrupt dynamics are individuals invested in political and administrative offices, particularly integrated into the economic reality, who act in violation of their duties to the community to achieve private interests. Moreover, making the emergence of corrupt practices even more arduous is the strong ability to adapt to the environment in which they are embedded. The transformative process of corruption has been enriched by third figures capable of managing the traffic of bribes and hindering the work of reconstructing its path, to the point of geographic fragmentation. Corporations have gained a prominent role in corrupt dynamics in this latter context. Intensified economic globalization and increased international trade allowed corruption to transcend national borders and insidiously permeate from one country to another.
The moment transnational corruption became evident, its ripple effects became evident as well: namely, the distrust of citizens in the legality of institutions, the threat to international trade, all the way to the breakdown of coexistence within the international community on the political and economic levels. This extraordinary circumstance has led the international community toward increasing attention to corruption, promoting agreements and conventions designed to promote the criminal harmonization of state systems.
Despite these efforts, traditional criminal law has failed to prove equal to the task. Information asymmetry between legal practitioners and corruption actors makes an effort to meet the criminal burden of proof rather tricky. In addition, conflicts of interest of government officials often result in a lack of political will that prevents effective enforcement of anti-corruption laws. The problem necessitates the adoption of new tools. In 2014, the OECD report "An Analysis of the Crime of Bribery of Foreign Public Officials" noted a dramatic increase in the enforcement of anti-corruption laws outside the traditional criminal process, namely through negotiated agreements between companies and prosecutors. Such agreements encourage companies to adopt an effective program to prevent and deter violation of the law, to self-control, self-report and cooperate with law enforcement authorities in corruption cases. The "quid pro quo" for such cooperation is generally a decrease in punishment and several benefits to the economic survival of the enterprise. In other words, such a strategy's fundamental principle is to reward good behavior and prioritize prevention over cure. Several advantages of negotiated agreements: they offer flexibility to law enforcement, especially in cases where companies are suspected of crimes for which it is complex to provide sufficiently strong evidence; they motivate corporate offenders to self-report and cooperate; and it allows trials to conclude their course more quickly. Most importantly, it allows enforcement actions to be promoted in circumstances where the counterfactual scenario would be to surrender to impunity. However, the use of such mechanisms has received particularly polarized views.
The purpose of this thesis is to contextualize the phenomenon of corporate bribery and negotiated settlements, attempting to find a point of convergence in practice and principle. The method used is the written translation of a cinematic zoom-out, under which the phenomenon of corruption is first analyzed in the foreground until the broader context it fits is made visible, namely that of the globalized world and negotiated agreements.
More specifically, the first part is devoted to addressing corruption primarily as a generic crime, then analyzing corruption's metamorphosis within the globalized world. At this juncture, corporations and the various models of corporate liability packaged by legal systems will play a significant role. It is argued that corporate criminal liability, as it is currently configured, results in impunity in most cases.
The second part compares the functioning of traditional mechanisms of corporate criminal liability and negotiated agreements in corruption cases. To this end, the analysis will focus on the Italian and U.S. systems, comparing the lights and shadows of both approaches. Negotiated agreements will then be dropped into a domestic reality, examining how they interact with domestic needs to combat corruption.
The third and final part further zooms out the perspective as it deals with negotiated agreements in transnational corruption cases. The state of the art of this issue and the potential critical issues inherent in the fragmented use of these instruments will be addressed. The ambition will be to envision guidelines for using negotiated agreements in transnational corruption cases that can harmonize practice under international conventions, and, thus, the rule of law.
The thesis closes by answering a question: is there a context in which the application of common principles in point of negotiated agreements could be tested? The answer can be identified in the European Union, especially considering the latest reforms adopted in security and justice. In fact, as of June 2021, the European Public Prosecutor's Office, an independent institution aimed at investigating and prosecuting all those crimes deemed detrimental to the financial interests of the European Union, is operational. The European Public Prosecutor's Office institution was the result of a long gestation process fraught with political and constitutional tensions, considering that it was conceived, among other things, to help combat impunity within the European Union. Even though its role as a supranational institution has been questioned, it is clear that the general will has been directed toward creating common ground to address common problems. Ultimately, the thesis briefly outlines the potential of the European Public Prosecutor's Office in implementing a shared system of principles in using negotiated agreements in corruption cases occurring within the European Union.
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