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1
Ferdian, Ardi. "KONSEP DEFERRED PROSECUTION AGREEMENT (DPA) DALAM PERTANGGUNG-JAWABAN PIDANA KORPORASI SEBAGAI BENTUK ALTERNATIF PENYELESAIAN SENGKETA." Arena Hukum 14, no. 3 (December 31, 2021): 523–45. http://dx.doi.org/10.21776/ub.arenahukum.2021.01403.6.
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Corporate prosecution through formal prosecution is considered to be able to destroy the corporation. If possible, the punishment of the corporation should not cause the corporation to go bankrupt and go bankrupt. The entanglement of corporations in criminal law does not only occur in Indonesia, in the world several phenomenal big cases have disrupted the company's health, which has impacted the company to make efficient by closing several of its subsidiaries and automatically downsizing the number of employees, namely the case that happen to Siemens Aktiengesellschaft (AG) and Volks Wagen (VW). To minimize the bankruptcy of corporations as a result of being convicted, several countries apply the Deferred Prosecution Agreement. The Deferred Prosecution Agreement is an alternative form of dispute resolution carried out outside the court. The author wants to know how the advantages and disadvantages of implementing the Deferred Prosecution Agreement if it is applied in Indonesia by using a conceptual approach and a comparative approach to the application of the Deferred Prosecution Agreement in England and America, to produce the concept of implementing the Deferred Prosecution Agreement in Indonesia. The results of the author's research, the concept of setting up a Deferred Prosecution Agreement at least contains: 1) Corporate approval for cooperation, 2) Process supervision by Judges, 3) Determining the term of the agreement, 4) Standard agreement clauses, 5) Considerations for the use of deferred prosecution agreement only for certain cases. However, we also need to know the advantages and disadvantages of this Deferred Prosecution Agreement concept if applied in Indonesia. The advantages are: 1) The company's reputation and trust are maintained, 2) Minimizes corporate bankruptcy, 3) Shorten, simple and low-cost case resolution, 4) Prosecutors are given the power to regulate the contents of the agreement. Weaknesses: 1) Prone to abuse of authority, 2) Need to make special rules (Lex Specialis). The author suggests that if you apply the concept of the Deferred Prosecution Agreement to corporate crimes, the attorney general should make regulations that regulate the guidelines for the implementation of the Deferred Prosecution Agreement and the standard operating procedures of the prosecutor dealing with the Deferred Prosecution Agreement. If supervision is needed, it is necessary to make special rules regarding the Supervisory Board.
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Cheung, Rita. "DEFERRED PROSECUTION AGREEMENTS: COOPERATION AND CONFESSION." Cambridge Law Journal 77, no. 1 (March 2018): 12–15. http://dx.doi.org/10.1017/s0008197318000156.
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SIR Brian Leveson's approval of the third deferred prosecution agreement (DPA) in Serious Fraud Office v Rolls-Royce plc [2017] Lloyd's Rep. F.C. 249 is the most significant addition to the growing canon of case law on DPAs. This new enforcement tool was added to the UK prosecutors’ armoury by the Crime and Courts Act 2013. Following the successful use of deferrals to tackle corporate crime in the US, the Act allows an organisation to avoid prosecution for certain corporate crimes by entering into an agreement with a designated prosecutor, under court supervision, whereby prosecution is deferred pending successful compliance with certain conditions, which may include payment of a substantial fine.
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Burrohim, Habi, I. Gede Widhiana Suarda, and Ainul Azizah. "Pengembalian Kerugian Keuangan Negara melalui Perjanjian Penundaan Penuntutan dalam Tindak Pidana Korupsi oleh Korporasi." JURNAL RECHTENS 11, no. 1 (June 24, 2022): 1–16. http://dx.doi.org/10.56013/rechtens.v11i1.1137.
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Abstrak Tujuan dalam penelitian ini adalah untuk menganalisis penerapan Perjanjian Penundaan Penuntutan atau Deferred Prosecution Agreement (DPA) dalam upaya pengembalian kerugian keuangan negara tindak pidana korupsi oleh korporasi dalam sistem peradilan pidana Indonesia dan merumuskan konsep yang tepat di masa yang akan datang dalam pelaksanaan Perjanjian Penundaan Penuntutan atau Deferred Prosecution Agreement (DPA) guna mendorong pengembalian kerugian keuangan negara yang diakibatkan oleh tindak pidana korupsi korporasi. Metode yang digunakan dalam penelitian ini adalah yuridis normatif. Hasil dalam penelitian ini adalah perjanjian Penundaan Penuntutan yang berasal dari rumpun hukum Common Law dapat diterapkan pada Sistem Peradilan Pidana Indonesia dengan didasarkan pada 4 (empat) dasar kajian yakni tujuan sistem peradilan pidana dan asas sistem peradilan pidana dan bahwa konsepsi Perjanjian Penundaan Penuntutan yang akan diterapkan pada Sistem Peradilan Pidana di Indonesia didasarkan pada Pengertian dan Tujuan Perjanjian Penundaan Penuntutan, Pihak yang Terlibat dan Kewenangannya, Kualifikasi Tindak Pidana, Syarat Perjanjian Penundaan Penuntutan. Kata kunci: Kerugian Negara, Korupsi, Korporasi, Penuntutan Abstract The purpose of this study is to analyze the application of the Deferred Prosecution Agreement (DPA) in an effort to recover state financial losses for corruption by corporations in the Indonesian criminal justice system and formulate the right concept in the future in the implementation of the Deferred Prosecution Agreement or Deferred Prosecution Agreement (DPA) to encourage the return of state financial losses caused by corporate corruption. The method of this research is normative juridical. The results in this study are the Delay of Prosecution agreement originating from the Common Law legal family can be applied to the Indonesian Criminal Justice System based on 4 (four) basic studies, namely the objectives of the criminal justice system and the principles of the criminal justice system and that the conception of the Delay of Prosecution Agreement will be applied. The Criminal Justice System in Indonesia is based on the Definition and Purpose of the Suspension of Prosecution Agreement, the Parties Involved and Their Authorities, Criminal Acts Qualifications, Terms of the Suspension of Prosecution Agreement,. Keywords: State Loses, Corruption,Corporation, Prosecution
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Mohd Zakuan, Zeti Zuryani, Siti Asishah Hassan, and Anida Mahmood. "Illegal Medical Product and Deferred Prosecution Agreement in Malaysia." Malaysian Journal of Social Sciences and Humanities (MJSSH) 8, no. 2 (February 28, 2023): e002145. http://dx.doi.org/10.47405/mjssh.v8i2.2145.
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The recent covid-19 pandemic has seen a demand for medical products. The problem identified is that unscrupulous traders are seen to be taking advantage of the situation by selling illegal products. The Ministry of Health seized 23 278 illegal pharmaceutical products worth more than RM 600 000 during Operation Pangea XIII, which was conducted in 2020. One of the factors identified for such illegal activity is the prosecution and penalty imposed on the traders is ineffective in acting as a deterrent as the profits gained from selling the products are much higher than the fine imposed. Adopting a doctrinal approach, this article analyses the provisions for combatting illegal medical products in Malaysia. The article aims to assess whether the provisions successfully overcame the problems of illegal medical products on the market. It is submitted the present law is outdated. It was found that Malaysia should consider implementing DPA. This is because based on the experience of other jurisdictions, DPA is able to deter traders from selling illegal medical products by imposing hefty penalties. Thus, DPA will create healthy environments for the consumption of medical products for Malaysia consumers.
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Abdul Hapiz, Muhammad Amry, Zeti Zuryani Mohd Zakuan, Anida Mahmood, and H. Syafriadi. "Deferred Prosecution Agreement: A tool to deter environmental crime by corporations in Malaysia." Environment-Behaviour Proceedings Journal 7, no. 22 (November 30, 2022): 103–8. http://dx.doi.org/10.21834/ebpj.v7i22.4158.
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The commission of the corporate environmental crime is on the rise in Malaysia. This may be due to the existing legal system which stipulates minimal punishments and results in crime repetition. This study adopted a qualitative method through doctrinal legal research given the crucial need to assess and benefit from the prevailing implementation of deferred prosecution agreement (DPA) in another jurisdiction. This study aims to explore the suitability of DPA as an alternative tool to deter corporate environmental crime in Malaysia. Findings from the study demonstrated that DPA could effectively prevent corporate environmental crime in Malaysia. Keywords: Corporate Environmental Crime; Prosecution of Corporate Environmental Crime; Malaysian Legal System; Deferred Prosecution Agreement eISSN: 2398-4287 © 2022. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open access article under the CC BYNC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians/Africans/Arabians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia. DOI: https://doi.org/10.21834/ebpj.v7i22.4158
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Baugh, Matthew, Jeff P. Boone, Inder K. Khurana, and K. K. Raman. "Did the 2005 Deferred Prosecution Agreement Adversely Impact KPMG's Audit Practice?" AUDITING: A Journal of Practice & Theory 38, no. 1 (January 1, 2018): 77–102. http://dx.doi.org/10.2308/ajpt-52015.
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SUMMARY We examine the consequences of misconduct in a Big 4 firm's nonaudit practice for its audit practice. Specifically, we examine whether KPMG's audit practice suffered a loss of audit fees and clients and/or a decline in factual audit quality following the 2005 deferred prosecution agreement (DPA) with the Department of Justice for marketing questionable tax shelters. We find little evidence that the DPA adversely impacted KPMG's audit practice by way of either audit fees or the likelihood of client gains/losses, suggesting little or no harm to KPMG's audit reputation. We also find that the DPA had no effect on the firm's factual audit quality, even for those audit clients that dropped KPMG as their tax service provider. Collectively, our findings suggest that there was no spillover effect from the DPA to KPMG's audit practice. Data Availability: All data are publicly available.
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Aldous, Sam, Laura Beament, and David Hall. "UK: New Borders; New Approach." Global Trade and Customs Journal 16, Issue 9 (September 1, 2021): 419–28. http://dx.doi.org/10.54648/gtcj2021047.
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Until ten years ago, the UK’s approach to bribery and corruption, including at its borders, was fragmented, limited in scope and unsuccessful in tackling bribery across borders. This article focuses on the changes which the Bribery Act 2010 has brought about over the last decade which has elevated the UK’s anti-bribery regime to one which is highly regarded. One might expect the natural consequence of the Bribery Act’s international reach to be a dramatic increase in the number of prosecutions (particularly in relation to bribing public officials) – however that has not proved to be the case. This article shows that the Bribery Act has instead brought about a fundamental change of approach by lawmakers and businesses alike – which is not evident from the raw statistics. The Bribery Act’s power lies in the combination of its international reach and the obligations it places on commercial organizations to prevent bribery which have caused UK corporates (including those incorporated elsewhere but who carry on a business, or part of a business, in the UK) to significantly tighten their anti-bribery internal policies and procedures. The shift in focus from the individual to the corporate has also been reflected in the approach of UK law enforcement through their use of Deferred Prosecution Agreements which has resulted in corporate offenders being punished with unprecedented fines. The paper ends by asking whether Brexit and the re-establishment of a large number of hard borders with EU countries will lead to an increase in the number of prosecutions for bribing customs officials after all. Bribery Act 2010, bribery and corruption, corporate offence, commercial organization, failure to prevent, extra-territorial reach, strict liability, Deferred Prosecution Agreement
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Habeahan Pasaribu, Ratno Timur. "Fulfillment of Restitution Right of Human Trafficking Crime Victim through Restorative Justice Approach in Criminal Justice System in Indonesia." International Journal of Multicultural and Multireligious Understanding 7, no. 2 (March 29, 2020): 504. http://dx.doi.org/10.18415/ijmmu.v7i2.1521.
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Fulfillment of restitution for victims of human trafficking through the restorative justice approach in the criminal system of Indonesia is done by making the offender responsible for the restitution. The role of the Public Prosecutor in optimizing the fulfillment of the restitution rights for victims of human trafficking crime can basically be carried out by adopting the concept of the Plea-Bargaining System and Deferred Prosecution Agreement which includes the Victim Impact Statement. However, in the practice of criminal justice, there are still obstacles in the application of restitution rights for victims of human trafficking which can cause obstruction to the law enforcement of human trafficking crime through a victim oriented restorative justice.
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Zenno Januarsyah, Mas Putra, Mochamad Ramdhan Pratama, Pujiyono Pujiyono, and Elisatris Gultom. "The Implementation of the Deferred Prosecution Agreement Concept to Corruption by Corporations with the Anti-Bribery Management System (SNI ISO 37001: 2016)." PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) 8, no. 2 (2021): 232–54. http://dx.doi.org/10.22304/pjih.v8n2.a4.
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Prevention of corruption is one of legal reform agendas that has been implemented by the Indonesian government. However, there is a gap in the main objective of the prevention to restore the country’s financial losses. Returning state’s financial losses is not easy. There are needs of a new paradigm to maximize the return of state financial losses caused by corruption. In the United Kingdom, the Serious Fraud Office used the Deferred Prosecution Agreement to handle Rolls-Royce’s alleged corruption offenses. One of the requirements is a legal compliance program that the corporation must obey. This study conducted in a form of a descriptive study. It employed normative juridical research type with statute and conceptual approaches, as well as legal comparison. The data was collected through literature studies before subsequently analyzed qualitatively. The results show that the implementation of the concept of deferred prosecution on corruption crimes committed by corporations with anti-bribery management system (SNI ISO 37001: 2016) is stated in the legislation policy related to the prohibition of corruption crimes committed by corporation. Any corporations can be held criminally accountable. However, policies and regulations in Indonesia do not require corporations to follow the legal compliance program.
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Finley, Andrew R., and James Stekelberg. "The Economic Consequences of Tax Service Provider Sanctions: Evidence from KPMG's Deferred Prosecution Agreement." Journal of the American Taxation Association 38, no. 1 (September 1, 2015): 57–78. http://dx.doi.org/10.2308/atax-51272.
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ABSTRACT This study investigates the effect of KPMG's Deferred Prosecution Agreement (DPA) on the accounting firm's ability to sell auditor-provided tax services (APTS) and its clients' tax avoidance. We document that following the DPA, clients were more likely to discontinue or reduce purchasing APTS from KPMG relative to the other Big 4 accounting firms. However, we do not find any evidence of a change in tax avoidance among KPMG clients continuing to purchase APTS following the DPA relative to other Big 4 clients. Broadly, our findings highlight how elevated reporting standards and external monitoring impose significant negative economic consequences on the service providers subject to these sanctions. At the same time, it appears clients do not suffer any observable tax costs by continuing to engage a sanctioned tax service provider.
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O'Brien, Justin. "The Sword of Damocles: who controls HSBC in the aftermath of its deferred prosecution agreement with the United States Department of Justice?" Northern Ireland Legal Quarterly 63, no. 4 (March 9, 2020): 533–50. http://dx.doi.org/10.53386/nilq.v63i4.402.
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HSBC has entered into a $1.92bn deferred prosecution with the Department of Justice in the United States to settle charges that the bank’s compliance systems and corporate governance controls had failed to prevent money laundering and sanctions violations on an industrial scale. The violations spanned the globe and demonstrated fundamental flaws with the bank’s business model. The article evaluates the terms of the settlement and explores the national and extra-territorial implications. It argues that the settlement, the largest ever imposed on a financial institution, marks a significant turning point in the use of criminal prosecution precisely because it occurred just as the still burgeoning London Interbank Offered Rate (Libor) manipulation scandal reaches a denouement.
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Baer, Miriam. "Too Vast to Succeed." Michigan Law Review, no. 114.6 (2016): 1109. http://dx.doi.org/10.36644/mlr.114.6.vast.
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If sunlight is, in Justice Brandeis’s words, “the best of disinfectants,” then Brandon Garrett’s latest book, Too Big to Jail: How Prosecutors Compromise with Corporations might best be conceptualized as a heroic attempt to apply judicious amounts of Lysol to the murky world of federal corporate prosecutions. “How Prosecutors Compromise with Corporations” is the book’s neutral- sounding secondary title, but even casual readers will quickly realize that Garrett means that prosecutors compromise too much with corporations, in part because they fear the collateral consequences of a corporation’s criminal indictment. Through an innovation known as the Deferred Prosecution Agreement, or DPA, prosecutors reach extrajudicial contractual agreements with corporations. Although prosecutors have long touted the transformative potential of these agreements, Garrett concludes that their benefits are often superficial and short-lived. Moreover, prosecutors negotiate these compromises with little oversight or accountability. Even worse, this overly soft approach toward entities has infected prosecutorial resolve to prosecute individual offenders, thereby enabling corporate managers to escape liability for their criminal wrongdoing. No wonder, then, that Garrett perceives a grievous accountability gap in the corporate crime landscape.
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Nelson, Febby Mutiara. "In Search of a Deferred Prosecution Agreement Model for Effective Anti-Corruption Framework in Indonesia." Hasanuddin Law Review 8, no. 2 (July 30, 2022): 122. http://dx.doi.org/10.20956/halrev.v8i2.3292.
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To help reduce the corruption in the criminal justice system, Indonesia should consider implementing a Deferred Prosecution Agreement (DPA) mechanism. DPA would not only aiming for punishment to corporations, especially in special and general deterrence, but also could accommodate in returning state assets from perpetrators. Indonesia could learn from the DPA models applied in the U.K. and U.S., as well as the proposed model in Australia. DPA models could be noteworthy in making the criminal justice process more effective, efficient, and less time-consuming, as well as resolving the problems of significant caseloads and ongoing corruption.
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Iqbal, Ahmad. "PENERAPAN DEFERRED PROSECUTION AGREEMENT DI INDONESIA SEBAGAI ALTERNATIF PENYELESAIAN TINDAK PIDANA EKONOMI YANG DILAKUKAN OLEH KORPORASI." Jurnal Yuridis 7, no. 1 (June 28, 2020): 215. http://dx.doi.org/10.35586/jyur.v7i1.1867.
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Abstrak Korporasi mempunyai peranan penting dalam pembangunan ekonomi suatu negara, namun demikian tidak jarang korporasi dalam aktivitasnya melakukan tindakan menyimpang atau kejahatan dengan berbagai modus operandi. Salah satu cara menyelesaikan tindak pidana yang dilakukan di Inggris adalah Deferred Prosecution Agreement (DPA) yang diatur dalam Schedule 17 of the Crime and Courts Act 2013. DPA sejatinya merupakan pengenyampingan penuntutan secara pidana terlebih dahulu dengan syarat korporasi memenuhi kondisi-kondisi tertentu dalam jangka waktu tertentu. DPA dapat dipertimbangkan oleh penegak hukum Indonesia serta legislator di Indonesia dalam mencoba menyelesaikan tindak pidana korporasi yang merugikan perekonomian negara. Untuk dapat menerapkan DPA di Indonesia harus diaturnya dalam peraturan perundang-undangan dasar dalam menentukan dapatkah korporasi mempunyai tanggungjawab pidana di Indonesia dan juga pengaturan kewenangan jaksa dalam menghentikan penuntutan sementara.
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Hardouin, Patrick. "Too big to fail, too big to jail: restoring liability a lesson from HSBC case." Journal of Financial Crime 24, no. 4 (October 2, 2017): 513–19. http://dx.doi.org/10.1108/jfc-09-2016-0061.
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Purpose This paper aims to highlight the shift of impunity from institutions to individuals within the “too big to fail, too big to jail” paradigm and to restore individual liability in the financial industry. Design/methodology/approach The paper is based on the analysis of HSBC deferred prosecution agreement concluded on December 10, 2012 and of a report by the US House of Representatives Financial Committee released in July 2016. Findings “Too big to fail, too big to jail” is a paradigm which contains justice. It leads to the impunity of individuals involved due to the absence of trial. Containment of justice is denial of justice. However, the systemic risk is attached to institutions, not to individuals. Therefore, it should not hamper the prosecution of individuals. Practical implications Setting sanctions applicable to individuals and proportionate to the crime would contribute to deter financial misconducts. Originality/value The value of the paper is the demonstration that there is no basis for a limited personal liability in the financial industry.
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Januarsyah, Mas Putra Zenno, I. Gde Pantja Astawa, Romli Atmasasmita, and Elisatris Gultom. "The Idea of Implementing a Deferred Prosecution Agreement with the Anti-Bribery Management System in Corruption Crime Management by Corporations in Indonesia." International Journal of Criminology and Sociology 9 (December 1, 2020): 1379–84. http://dx.doi.org/10.6000/1929-4409.2020.09.158.
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Ortiz, Turenna Ramirez. "Bribery and Corruption at the Border: Mexico: An Outstanding Challenge to Be Overcome by the Mexican Government." Global Trade and Customs Journal 16, Issue 9 (September 1, 2021): 429–36. http://dx.doi.org/10.54648/gtcj2021048.
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Mexico has a challenging dichotomy between trade growth, efficiency at customs and at the same time national security. Corruption and bribery at the ports of entry has been tackled by decades through different Administrations. However, the multiple agencies involved, an extensive legal framework applicable to foreign trade operations, the enforcement criteria against bribery and corruption, as well as the recent militarization of several customhouses, represents some of the various factors that make this target difficult to eradicate. Through this article, we will begin by examining the National Anticorruption System, its legal framework and regulations, as well as the combination with our customs’ infrastructure and operation, some new policies that links both legal bodies, as well as public cases related to corruption at the border. One major topic in this Article, refers to the customs militarization initiative in Mexico, the creation of the new National Customs Agency (directly reporting to the Executive Power and replacing the General Customs Administration, the short run consequences that we have experienced so far, the potential risks that this entails, as well as proposals aimed at the implementation of best practices at customs. Bribery Act 2010, bribery and corruption, corporate offence, commercial organization, failure to prevent, extra-territorial reach, strict liability, Deferred Prosecution Agreement
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Arlen, Jennifer. "Prosecuting Beyond the Rule of Law: Corporate Mandates Imposed through Deferred Prosecution Agreements." Journal of Legal Analysis 8, no. 1 (June 2016): 191–234. http://dx.doi.org/10.1093/jla/law007.
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Brown, Darryl L., Susan Z. Shu, Billy S. Soo, and Gregory M. Trompeter. "The Insurance Hypothesis: An Examination of KPMG's Audit Clients around the Investigation and Settlement of the Tax Shelter Case." AUDITING: A Journal of Practice & Theory 32, no. 4 (May 1, 2013): 1–24. http://dx.doi.org/10.2308/ajpt-50515.
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SUMMARY Although prior literature has suggested that independent audits provide an implicit form of insurance against investor losses (the “insurance hypothesis”), it has been challenging to isolate the “insurance” effect. In this paper, we use a unique setting to examine this effect. In 2002, KPMG was investigated by the U.S. Department of Justice in relation to tax shelters sold by the firm. From then until early 2005, several news reports suggested that KPMG would be indicted and suffer potentially the same fate as Arthur Andersen. However, in August of 2005 KPMG entered into a deferred prosecution agreement with the U.S. Department of Justice, which ended widespread speculation of an impending federal indictment against the accounting firm. Because the investigation centered around tax services offered by the firm, we argue that the circumstances surrounding the investigation and settlement provide a natural setting to test the insurance value provided by auditors. We show that KPMG audit client firms experienced significant negative abnormal market returns when it appeared more likely that KPMG would face criminal charges, but earned significantly positive abnormal returns following news reports of an impending settlement. Further, these abnormal returns appear to be driven by KPMG client firms in greater financial distress or subject to greater litigation risk. These findings are consistent with the insurance hypothesis. Although we cannot completely eliminate other explanations such as an assurance effect or switching costs, we argue that such explanations are unlikely to drive our main findings.
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Shiner, Roger A., and Henry Ho. "Deferred Prosecution Agreements and the Presumption of Innocence." Criminal Law and Philosophy 12, no. 4 (January 20, 2018): 707–23. http://dx.doi.org/10.1007/s11572-018-9454-0.
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Johnson, Diana. "What Are the Merits of Taking a Hybrid Regulatory Approach Toward the Enforcement of Corporate Financial Crime in the United Kingdom and United States of America?" Journal of White Collar and Corporate Crime 3, no. 1 (November 2, 2021): 23–32. http://dx.doi.org/10.1177/2631309x211050013.
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This article focuses on the hybrid regulatory approaches used in both the USA and the UK for the enforcement of corporate financial crime. In particular, the article analyses the use of Deferred Prosecution Agreements, which typically impose a financial penalty and behavioral commitments on a corporate entity for a defined period of time in exchange for the deferral of a criminal prosecution. The article will examine the merits of the use of DPAs instead of the imposition of criminal penalties on a company. The article will also consider whether a hybrid use of competition law as well as, or instead of, financial regulation could achieve better outcomes for regulators when enforcing financial crime.
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Gilchrist, Stephen. "Paying Your Way Out of Trouble The SFO and Deferred Prosecution Agreements." Business Law Review 33, Issue 6 (June 1, 2012): 150–51. http://dx.doi.org/10.54648/bula2012034.
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The Serious Fraud Office is, self-evidently, concerned with the prosecution of fraud and other instances of serious economic crime. Currently it does so within our adversarial criminal justice system, which, after a lengthy and expensive investigation and court process, may result in acquittal or conviction. In the UK, under the law at present, prosecution is the only option, but is a blunt instrument. The only other option is non-prosecution. The SFO must either prosecute with the aim of achieving a criminal conviction or proceed under the Civil Law. In March 2012, Solicitor General confirmed that legislation to enable deferred prosecution agreements (DPAs) into the UK, limited at first to corporate offenders, is on the way. This article examines some of the issues which lend themselves for consideration before instituting the DPA system in the UK.
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Boozang, Kathleen M., and Simone Handler-Hutchinson. "“Monitoring” Corporate Corruption: DOJ's Use of Deferred Prosecution Agreements in Health Care." American Journal of Law & Medicine 35, no. 1 (March 2009): 89–124. http://dx.doi.org/10.1177/009885880903500103.
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It has become a truism to cite Enron as the new millennium’s watershed impetus for government assertion of power to improve corporate governance. While indictment of corrupt corporations and their executive leadership seems an obvious corrective to corporate norms that have gone astray, the unsuccessful prosecution and demise of Arthur Andersen proved a stunning backfire of such a blunt weapon. The public accounting industry shrunk even further, to the detriment of clients, and thousands lost their jobs. Arthur Andersen taught that an indictment itself may be sufficiently damaging to close the doors of a public corporation.
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Bu, Qingxiu. "The Viability of Deferred Prosecution Agreements (DPAs) in the UK: The Impact on Global Anti-Bribery Compliance." European Business Organization Law Review 22, no. 1 (February 2, 2021): 173–201. http://dx.doi.org/10.1007/s40804-021-00203-5.
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AbstractDeferred prosecution agreements (DPAs) provide an alternative enforcement tool to tackle economic crime. Prosecutors tailor punishment and remediation measures more accurately to satisfy the principles of prosecution. The companies in question can avoid criminal charges, provided that they comply with agreed terms and conditions. The use of DPAs is conducive to relieving collateral consequences, while being able to deter, punish and reshape corporate behaviour. In principle, enforcement authorities can maximise the leverage with criminal liability over companies to cultivate a robust corporate culture against bribery. It is argued that an effective global anti-bribery regime rests with not only transnational cooperation, but also adequate governance and rigorous compliance. With the DPAs having increased in prominence as a mainstay of the US enforcement regime, it remains to be seen whether the potent tool will be viable and further reshape the future enforcement landscape of the anti-bribery regime in the UK and even on a global basis.
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Bradshaw, Elizabeth A. "Book Reviews: Negotiated justice and corporate crime: The legitimacy of recovery orders and deferred prosecution agreements." Journal of White Collar and Corporate Crime 1, no. 1 (November 7, 2019): 77. http://dx.doi.org/10.1177/2631309x19876932.
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Mazzacuva, Federico. "Justifications and Purposes of Negotiated Justice for Corporate Offenders: Deferred and Non-Prosecution Agreements in the UK and US Systems of Criminal Justice." Journal of Criminal Law 78, no. 3 (June 2014): 249–62. http://dx.doi.org/10.1350/jcla.2014.78.3.921.
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This article offers an overview of the UK regime of deferred prosecution agreements in the Crime and Courts Act 2013, in light of the practice of pre-trial diversion in the USA and the lessons learnt to date. The effectiveness of this new prosecutorial tool is discussed on the basis of judicial statistics and other available data. The transformation in the American system of corporate criminal liability, through guidelines disseminated by the Department of Justice and by the Securities and Exchange Commission, shows an increasing emphasis on two main topics: (1) corporate cooperation with authorities in the prosecution of individuals and (2) corporate governance. In this regard, the article argues for a new concept of corporate blameworthiness, which it seeks to affirm based on the theory of ‘reactive fault’. The article furthermore reflects on problems with regard to the framework of corporate rehabilitation, while outlining possible remedies against prosecutorial abuses.
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Amulic, Andrea. "Humanizing the Corporation While Dehumanizing the Individual: The Misuse of Deferred-Prosecution Agreements in the United States." Michigan Law Review, no. 116.1 (2017): 123. http://dx.doi.org/10.36644/mlr.116.1.humanizing.
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American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when deciding whether to prosecute noncorporate, as well as corporate, defendants and that the Department of Justice adopt departmental guidelines to ensure compliance with this goal.
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Murray, Noel, Ajay K. Manrai, and Lalita Ajay Manrai. "The financial services industry and society." Journal of Economics, Finance and Administrative Science 22, no. 43 (November 6, 2017): 168–90. http://dx.doi.org/10.1108/jefas-02-2017-0027.
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Purpose This paper aims to present an analysis of the role of financial incentives, moral hazard and conflicts of interests leading up to the 2008 financial crisis. Design/methodology/approach The study’s analysis has identified common structural flaws throughout the securitization food chain. These structural flaws include inappropriate incentives, the absence of punishment, moral hazard and conflicts of interest. This research sees the full impact of these structural flaws when considering their co-occurrence throughout the financial system. The authors address systemic defects in the securitization food chain and examine the inter-relationships among homeowners, mortgage originators, investment banks and investors. The authors also address the role of exogenous factors, including the SEC, AIG, the credit rating agencies, Congress, business academia and the business media. Findings The study argues that the lack of criminal prosecutions of key financial executives has been a key factor in creating moral hazard. Eight years after the Great Recession ended in the USA, the financial services industry continues to suffer from a crisis of trust with society. Practical implications An overwhelming majority of Americans, 89 per cent, believe that the federal government does a poor job of regulating the financial services industry (Puzzanghera, 2014). A study argues that the current corporate lobbying framework undermines societal expectations of political equality and consent (Alzola, 2013). The authors believe the Singapore model may be a useful starting point to restructure regulatory agencies so that they are more responsive to societal concerns and less responsive to special interests. Finally, the widespread perception is that the financial services sector, in particular, is ethically challenged (Ferguson, 2012); perhaps there would be some benefit from the implementation of ethical climate monitoring in firms that have been subject to deferred prosecution agreements for serious ethical violations (Arnaud, 2010). Originality/value The authors believe the paper makes a truly original contribution. They provide new insights via their analysis of the role of financial incentives, moral hazard and conflicts of interests leading up to the 2008 financial crisis.
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Sahu, Ritankar. "A Gap Analysis of Enforcing FCPA-compliant Codes of Conduct in Low- and Middle - Income Countries." Business Law Review 41, Issue 6 (December 1, 2020): 225–36. http://dx.doi.org/10.54648/bula2020123.
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Recent quantum of FCPA (US ‘Foreign Corrupt Practices Act, 1977’) settlements reveal eye-popping numbers. It has brought to light that superficial anti-bribery enforcement mechanisms are still being deployed as order of the day across many large enterprises. It seems that even after a decade of balance-sheet busting Deferred Prosecution Agreements, Non- Prosecution Agreements and other resolutions, corporations are still taking anti-bribery enforcement efforts lightly. The FCPA compliance industry is a multi-billion-dollar industry and is growing in leaps and bounds, and there is a wide variety of expertise available at all price-bands; that being so, how is it that codes of conduct and anti-bribery policies fail to prevent and/or detect misconduct for years before it spirals out of control? In this article, I will be going over a few select elements of drafting and enforcing an effective code of conduct, which under ‘normal’ operating protocols may be perceived to be too ‘tight’ for well-lubed enterprises, but the tried and tested methods will ensure that the corporation is combat ready in the event of a breach. I will be focusing on FCPA compliant codes but will also cross-refer other legislation like the UKBA (‘Bribery Act 2010ʹ). The fact that conduct enforcers are faced with the fact that extra-territorial laws lack public assent in most low- and middle-income countries is something that I will assess in significant detail. I will be covering behavioural dynamics influenced by socio-cultural and socio-economic parameters of employees and institutions, and how pre-conceived notions of what ‘misconduct’ is, impact actual compliance efforts. Whilst the focus will be on using an effective code of conduct which works in practice, I will draw in other issues like hotline distrust, procurement integrity, economic disruption stemming from anti-bribery investigations, merits of self-reporting violations and perceptions about compliance enforcers, and how they impact organizational behaviour and institutional culture. I will be drawing cues from select high-profile resolutions like Airbus, Rolls-Royce, Odebrecht and Ericsson. I will be talking about the usual suspects inside institutions, who suddenly become sensitive to issues of compliance after a regulator has expressed interest in a subject company. I will also look at pressure points after it is imminent that there would be enforcement action, or an investigation has already begun. A lot of my content will be focussing on the Asian strand but theobservations and intrinsic assessments, albeit picked up from actual conduct in emerging markets in Asia, will apply to a universal set of problems in most low- and middle-income countries. Conduct, culture, socio-economic parameters, FCPA, UKBA, internal controls
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Ryder, Nicholas. "‘Too Scared to Prosecute and Too Scared to Jail?’ A Critical and Comparative Analysis of Enforcement of Financial Crime Legislation Against Corporations in the USA and the UK." Journal of Criminal Law 82, no. 3 (June 2018): 245–63. http://dx.doi.org/10.1177/0022018318773209.
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This article has two aims. First, it critically considers the responses towards tackling corporate financial crime in the USA. Secondly, it analyses the UK’s efforts to tackle corporate financial crime and then compares them with the USA. The USA presents an interesting case study for this article due to its robust and aggressive stances towards tackling financial crime and also because it is one of the largest financial markets. Similarly, the UK has adopted a strong stance towards tackling financial crime and is also regarded as one of the most important global financial centres. Therefore, by comparing the two contrasting approaches towards corporate financial crime, it is hoped that the best practices from each country could be adopted. The first section of the article concentrates on the judicial response towards corporate financial crime in the USA and it then moves onto highlight and critique the decision of the US Department of Justice (DoJ) to alter its enforcement policy by moving away from indicting corporations to using deferred prosecution agreements (DPAs). Here, the continued use of DPAs is questioned because they have had a limited impact on the future conduct of corporations who are persistent reoffenders. The article sets out a wide range of arguments for why DPAs should not be the enforcement weapon of choice for the DoJ. The final part of this section critiques the ability of law enforcement and financial regulatory agencies to impose financial penalties and bring civil actions for a wide range of financial crimes under the Financial Institutions Reform, Recovery and Enforcement Act 1989. The second part of the article concentrates on the UK and concisely assesses the doctrine of corporate criminal liability, thus identifying the contrasting judicial approaches with the USA. The next section discusses the use of DPAs for breaches of the Bribery Act 2010 by the Serious Fraud Office. The section advocates that in the UK, DPAs must be utilised for a broader range of financial crime offences, thus drawing on the US model. The penultimate segment of the article identifies and comments on several alternative enforcement measures which could be used to counteract the limitations of the doctrine of corporate criminal responsibility in financial crime cases. This distinctively includes the Financial Conduct Authority’s Senior Managers and Certification Regime, its ability to impose financial penalties and to revoke the authorisation of a regulated corporation. The article concludes by making a number of recommendations and suggested reforms, thus further developing the scope of this research.
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Wernli, Jürg, and Déborah Carlson-Burkart. "Kein Deferred Prosecution Agreement im Unternehmensstrafrecht?" Jusletter, no. 1039 (2020). http://dx.doi.org/10.38023/18e30d9a-cb22-4081-b35f-5dcde9e54e97.
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Coffee, John C. "Nosedive: Boeing and the Corruption of the Deferred Prosecution Agreement." SSRN Electronic Journal, 2022. http://dx.doi.org/10.2139/ssrn.4105514.
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Homer, Emily M., and Michael O. Maume. "The Deterrent Effect of Federal Corporate Prosecution Agreements: An Exploratory Analysis." Journal of White Collar and Corporate Crime, August 13, 2022, 2631309X2211200. http://dx.doi.org/10.1177/2631309x221120003.
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In this paper, we explore the potential deterrent effect of federal pretrial agreements by examining the extent of violations subsequent to an organization signing a pretrial agreement. More specifically, this research examines the subsequent criminal, civil, and regulatory violations of 161 publicly-traded firms that signed federal deferred prosecution agreements and non-prosecution agreements between 2001 and 2020. Our analysis identified 87 recidivist companies with a total of 629 subsequent violations, eight of which were criminal violations. While most companies had only one subsequent violation, one company had 63 noted violations after signing the pretrial agreement. Our exploratory analyses reveal that companies paying larger penalties as part of the pretrial agreement were less likely to have subsequent violations, and, when examining U.S.-based companies only, that larger organizations were more likely to have subsequent violations. These preliminary results are important to understanding both corporate deterrence generally, and the use of pretrial agreements as a corporate deterrent specifically.
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Finley, Andrew R., and James Stekelberg. "The Economic Consequences of Tax Service Provider Sanctions: Evidence from KPMG's Deferred Prosecution Agreement." SSRN Electronic Journal, 2015. http://dx.doi.org/10.2139/ssrn.2597368.
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Homer, Emily M., and George E. Higgins. "Mapping geographic patterns in federal corporate agreements." Journal of Financial Crime ahead-of-print, ahead-of-print (November 11, 2020). http://dx.doi.org/10.1108/jfc-08-2020-0152.
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Purpose The purpose of this study is to use crime mapping techniques to examine geographic patterns of signed deferred and non-prosecution agreements across federal districts. The purpose is also to examine the variation in the number of agreements by the district since 1992. Design/methodology/approach This study uses data from the Corporate Prosecution Registry to examine geographic patterns in federal corporate agreements since 1992 (n = 534). Choropleth mapping techniques were used to create national crime maps displaying the geographic locations of signed corporate agreements. Findings The results showed that, overall, prosecutors in the District of Columbia have signed the most federal corporate agreements although there is some variation over time. Research limitations/implications This study is unable to determine the causes of changes in the geographic placement or number of agreements signed. It is also unable to determine the precise geographic locations of crimes, but only the location of the District Court that elected to pursue a federal agreement with the organization. Practical implications The wide discretion prosecutors have in the agreement process has led to an overall lack of transparency concerning prosecutors’ decision-making when signing agreements with organizations. This study helps to make the number and geographic location of agreements more transparent. Originality/value This study uses crime mapping techniques to visually depict the locations of signed agreements allowing for visual comparisons and analyzes for an extended period of time.
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"Huawei's Meng Wanzhou Released to China After Entering into Deferred Prosecution Agreement with U.S. Justice Department." American Journal of International Law 116, no. 1 (January 2022): 184–89. http://dx.doi.org/10.1017/ajil.2021.72.
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Parker, Megan Jean, and Mary Dodge. "An exploratory study of deferred prosecution agreements and the adjudication of corporate crime." Journal of Financial Crime, July 13, 2022. http://dx.doi.org/10.1108/jfc-06-2022-0122.
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Purpose Deferred prosecution agreements (DPAs) are the tool of choice for federal prosecutors when adjudicating corporate misconduct. A DPA is a negotiation that permits the allegedly guilty party from undergoing a criminal trial if they avoid committing further wrongdoing for a specified period. This paper aims to examine whether DPAs are a beneficial mechanism for the criminal justice system to use while adjudicating corporate misconduct. By conducting in-depth semi-structured qualitative interviews with 24 practitioners in the legal field and white-collar crime experts, this study identifies the shortcomings and advantages of DPAs and highlights what policy enactments might enhance their application. The study contributes to the existing literature by expanding the narratives used by judicial officials, legal practitioners and white-collar crime scholars on the role of DPAs. Design/methodology/approach The current study is an in-depth qualitative analysis that explores judicial actors’ and white-collar crime scholars’ opinions on the adoption of DPAs to adjudicate corporate misconduct. The literature on DPAs is currently derived primarily from law and literature reviews published by legal scholars. Clandestine negotiations are not accessible to the public and are frequently kept in sealed files unless a breach of contract occurs, resulting in the case proceeding to trial. Hence, a qualitative analysis is the best approach to evaluate the effectiveness of DPAs. Further, little evidence is available that focuses on the opinions of professionals who have participated in these agreements. The interviews were conducted over Zoom and lasted an average of 43 min, with the longest interview spanning 1 h and 45 min and the shortest interview being 14 minutes. A non-probability sampling method – specifically, snowball sampling – was used to generate a total sample of 24 legal professionals and white-collar crime scholars. Initial participants were found by contacting law offices specializing in white-collar crime litigation and using current networks to attain access to a broader range of participants. Then, 19 participants provided referrals throughout the study. The final sample consisted of nine government officials, eight legal practitioners and seven white-collar crime academics experts. One of the government official interviews was excluded from the final research project due to a lack of expertise in the field of white-collar crime. The interview questions were designed to promote in-depth conversation and insight into personal opinions on the adoption of DPAs. Several inquiries highlighted whether DPAs are an appropriate response to corporate misconduct and whether they reduced recidivism through their intended deterrent effect. Furthermore, several descriptive questions sought to understand which criminal justice actors support the adoption of DPAs in white-collar crime cases and why. Coding of the data was first conducted individually by each author. The researchers then compared thematic findings that reflected consensus. Findings An immediate theme identifiable in the research is the intrinsic value that DPAs offer in adjudicating corporate wrongdoing. As indicated by a participant, corporate misconduct is not “black or white,” stressing the importance of prosecutors having a middle ground between criminal prosecution and the dismissal of charges. A judicial official indicated that “DPAs are another essential arrow in a prosecutor’s quiver – and something a defense attorney can bargain for” (Respondent 5). Seven government officials and legal practitioners noted that you are unable to send a corporation to jail, and you do not simply want to put them out of business; thus, a DPA is the only tool in which the government can mandate structural change in a company without dismantling the entire entity. Only three academics concurred with the government officials and legal practitioners that DPAs are beneficial and offer prosecutors a vital middle ground. One academic, for example, stated that “DPAs have given U.S Attorney offices that ability to be involved for a considerable amount of time in a company's business, while simultaneously promoting change within the entity” (Respondent 14). Additionally, DPAs ensure that corporations are held criminally liable without triggering an endless cycle of collateral consequences for innocent third parties. One legal practitioner, for example, stated: “Just look at the Enron case; they charged Arthur Andersen with obstruction of justice and dismantled the entire entity they made it where the business was never going to come back. A small subset of individuals, in this case, should have been held responsible but instead, hundreds and if not thousands of people were harmed. With this in mind, DPAs are extremely important, in that it limits collateral consequences because DPAs take a more holistic view that criminal prosecution does not consider” (Respondent 21). Another respondent highlighted that “DPAs are the only tool available that can be employed to change an entire organization structurally” (Respondent 20). Ultimately, the findings suggest that there is a consensus among respondents that DPAs are an appropriate response to corporate misconduct, particularly when the agreement stipulates that a company must hire an external compliance monitor and update their current compliance system. Overall, participants emphasized that these stipulations promote a sense of corporate accountability, provide for the dismissal of guilty employees and mandate structural change. The majority of the respondents (n = 20) insisted that DPAs are advantageous, yet a subset of participants were skeptical of their use in white-collar crime prosecutions. One legal practitioner, for example, noted that “DPAs are political creatures that are awarded as political favors to the largest of corporations that our economy relies upon” (Respondent 17). Another government official confirmed this statement, indicating that “DPAs are a mere slap on the wrist for large corporations – they simply see it as doing business” (Respondent 6). Four academic participants emphasized that DPAs are typically negotiated with multi-level corporations and are not extended to the small businesses that suffer the dire consequences of criminal prosecution. One academic, for instance, stressed that “the question becomes is it fairly applied and being implemented properly. Larger companies are more likely to receive and benefit from a DPA, thus, raising the question of fairness” (Respondent 12). Another academic who was previously a government official stated: “DPAs risk abuse – there have been several instances where prosecutors have forced companies to donate money to favored charities and overstepped their powers. Sometimes DPAs also come with monitors. For example, banks typically have to pay for the auditor, and it becomes extremely intrusive, and it it not clear that they are efficient.” Research limitations/implications Several limitations exist in this research. First, it is not a comprehensive study that is representative of the larger population, which limits generalizability. Given the contention of research on DPAs, this qualitative research contributes to the literature, and its findings are likely transferable to multiple settings in which DPAs are used. Second, DPAs are processed and drafted differently across jurisdictions; thus, comparing DPAs across state levels and among departments in the federal government would be equivalent to comparing apples to oranges. This comparison is yet another limitation to the study because criminal justice practitioners operate in both the state and federal jurisdictions. Another challenge in the current study and something that likely will be a problem for future researchers is the difficulty of gaining access to experts in an exclusive field of criminal justice, such as federal prosecutors, Department of Justice officials, federal judges and elite corporate defense attorneys. Ultimately, several obstacles arose during the study, particularly when recruiting participants to gain a large enough sample size to conduct meaningful analysis. This resulted in smaller sample size but rich, in-depth data that achieved saturation among participants. Practical implications Several policy implications are identifiable. First, it appears that DPAs are a mainstay of white-collar crime prosecution. No participants advocate for their complete removal from the prosecution process. Participants highlight that DPAs occupy an essential middle-ground between dismissal and criminal charges. Without this mechanism, prosecution would be impeded, and holding corporate criminal actors liable would increasingly become formidable. Although it appears that the system cannot function without DPAs, several respondents emphasize that we must begin to hold individuals accountable alongside corporations. Another policy implication that a minority of participants mentioned within the study involves ensuring that our compliance monitoring system operates appropriately. A majority of participants note that the overarching stipulation that promotes structural change within an organization is adopting a functioning compliance monitoring system, thus, emphasizing the importance of this process operating smoothly and ethically. The selection of an independent compliance monitor may be problematic. For example, a former government compliance monitor notes that not all monitors are experts in the field they are overseeing. A pharmaceutical expert, for example, may be attempting to regulate an automotive organization, which may present unique challenges. An agency of federal professionals dedicated to supervising specific industries such as automotive, pharmaceutical and financial would ensure that organizations are actually implementing the terms of the DPA. Originality/value Ultimately, the current research highlights the necessity of empirically studying the benefits and drawbacks of such agreements. Future research on the topic remains onerous due to the scarcity of a centralized database that contains extensive details of DPAs. The present study suggests that the verdict on DPAs is undecided, with more than half of the study's criminal justice professionals advocating for their continued and even increased use. However, about half of the participants, particularly academics, called attention to the agreements’ potential bias. The disagreement among participants is most contentious in the consideration of a DPA centralized database which would immensely aid future research and policy advancements.
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Abdul Raof, Nurazlina, Nadia Omar, and Rozita Othman. "Adopting Deferred Prosecution Agreement As A Non-Criminal Alternative in Corporate Criminal Liability for Corruption Offences in Malaysia." International Journal of Academic Research in Business and Social Sciences 12, no. 9 (September 8, 2022). http://dx.doi.org/10.6007/ijarbss/v12-i9/14612.
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Grasso, Costantino. "Peaks and Troughs of the U.K. Deferred Prosecution Agreement: The Lesson Learned from the First-Ever DPA between the SFO and ICBC SB PLC." SSRN Electronic Journal, 2016. http://dx.doi.org/10.2139/ssrn.2748688.
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Perez, Michel A. "The rise and globalization of negotiated settlements: How an American procedure, the Deferred Prosecution Agreement (DPA), became a transnational key tool to fight transnational corporate crimes." Rule of Law and Anti-Corruption Center Journal 2020, no. 1 (June 30, 2020). http://dx.doi.org/10.5339/rolacc.2020.4.
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Zepeda, Rodrigo. "Deferred Prosecution Agreements: A Decidedly British Perspective." SSRN Electronic Journal, 2014. http://dx.doi.org/10.2139/ssrn.2459598.
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Davis, Frederick. "Judicial Review of Deferred Prosecution Agreements: A Comparative Study." SSRN Electronic Journal, 2022. http://dx.doi.org/10.2139/ssrn.4072985.
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Kaal, Wulf A., and Timothy Lacine. "Stock Price Response to Non- and Deferred Prosecution Agreements." SSRN Electronic Journal, 2015. http://dx.doi.org/10.2139/ssrn.2629451.
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"DEFERRED PROSECUTION AGREEMENTS – HAVE THEY ACHIEVED SUCCESS IN EUROPE?" BUSINESSANDLAW 17, no. 1 (January 10, 2022): 24–66. http://dx.doi.org/10.37075/bal.2022.1.02.
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The deferred prosecution agreements (DPAs) have their origin in the USA. They soon became a useful enforcement tool preferred by both parties – the prosecution and the companies, because of their potential to deter, sanction and reshape corporate behaviour, while at the same time avoid, or at least, attenuate the adverse collateral consequences of criminal conviction. According to a 2019 OECD study, non-trial resolutions have be- come a prominent way of enforcing serious economic offences, in- cluding the bribery of foreign public officials. In the period 2014 – 2016 the United Kingdom and France be- came the first European countries that introduced into their na- tional legislation the DPAs to step-up the fight against corruption and fraud involving legal persons. Competent authorities in both countries eagerly seized the new opportunity and now there are at least ten DPAs concluded in each of them. The present article analyzes the UK and French experience about the DPAs scope of application, the prerequisites for entering into a DPA, and the terms of the agreements. The extent of financial penalties as well as the rules for their calculation are studied. The requirement to introduce and/or reform the corporate compliance program under certain control is analysed too, as one of the most expressive fea- tures of the DPAs, aiming to reshape the corporate culture and prevent future corporate wrongdoing. Bulgarian regulation of corporate liability for criminal offences and its implementation are still underdeveloped. The analysis of the foreign experience in the use of alternative enforcement tools in tackling economic and financial crime and particularly in the use of DPAs is necessary with a view to future development of corporate liability for criminal offences in Bulgaria.
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Peltier-Rivest, Dominic. "Corruption at Rolls-Royce: can it happen again?" Journal of Financial Crime ahead-of-print, ahead-of-print (March 13, 2020). http://dx.doi.org/10.1108/jfc-01-2020-0002.
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Purpose This study aims to analyse Rolls-Royce’s (RR) recent corruption case, its 2017 global anti-bribery and corruption (ABC) manual, and its 2017 annual report to assess whether it has put the best corruption prevention strategies into place. Design/methodology/approach This is a legal case study based on RR’s 2017 deferred prosecution agreement (DPA) with the UK serious fraud office. It uses the new ISO 37001 standard as a theoretical framework. Findings RR’s DPA suspends an indictment covering 12 counts of conspiracy to corrupt, false accounting and failure to prevent bribery. RR’s ABC manual exhibits significant shortcomings as compared to ISO 37001’s requirements. RR’s ABC manual does not provide any reference to the setting, reviewing and achievement of measurable anti-bribery objectives; does not state that anti-bribery training is provided at planned intervals to employees and external business associates that pose more than a low risk of bribery; does not explain the authority and independence of its head of ethics and compliance; does not state any maximum for gifts and hospitality given or received; does not provide clear assurances that reports made through its main internal channels will be treated confidentially and that complaints about senior management will be investigated by an outside firm; and does not subject its advisers to a formal due diligence process. RR’s annual report notes that it operates in an industry prone to corruption. Finally, internal control failure and compliance fatigue mean that no anti-bribery management system can be completely effective. Research limitations/implications This paper extends previous research by analysing the best corruption prevention strategies that organizations can implement. It does not endeavour to certify whether RR is ISO 37001 compliant, and it analyses only publicly available documents. Practical implications This study’s prevention strategies will help deter corruption and improve internal controls within organizations. Originality/value No previous study has used the new ISO 37001 standard as a framework for such corruption case analysis.
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Lord, Nicholas. "Prosecution Deferred, Prosecution Exempt: On the Interests of (In)Justice in the Non-Trial Resolution of Transnational Corporate Bribery." British Journal of Criminology, August 2, 2022. http://dx.doi.org/10.1093/bjc/azac059.
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Abstract Nation-states face regulatory and enforcement dilemmas when dealing with corporations operating in international commerce that are implicated in the bribery of foreign public officials. As part of the regulatory landscape, non-trial resolutions, and Deferred Prosecution Agreements (DPAs) specifically, have emerged as a prominent method for gaining leverage against major implicated corporations. This article analyses how judges in England and Wales discursively rationalize the approval of DPAs, arguing that three interdiscursive mechanisms (deviance elastication; corporate dissociation; and, anticipatory offsetting) serve to underpin and communicate constructions of DPAs as in the interests of justice. Relatedly, the conditions of use of DPAs have generated a socially problematic enforcement infrastructure, whereby corporates are being exempt, not just deferred, from criminal prosecution.
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Gates, Sandra K. "Pretrial diversion agreements after Andersen’s prosecution: a utilitarian theoretical framework." Journal of Financial Crime, October 19, 2022. http://dx.doi.org/10.1108/jfc-08-2022-0203.
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Purpose Using the ethical consequentialist theory of utilitarianism, this paper aims to demonstrate the correlation between the prosecution of Arthur Andersen LLP and the United States Department of Justice’s (DOJ) increased use of pretrial diversion agreements, both nonprosecution and deferred prosecution agreements (N/DPA) for criminal corporations. Design/methodology/approach Through an analysis of previous literature, the United States Justice Manual, and data from the Corporate Prosecution Registry, this study examines the trend of N/DPAs from 1992 to 2021. Specifically, the data is examined to assess whether a pattern exists before and after the 2002 prosecution of Andersen. Findings This study finds an exponential increase of N/DPAs after Andersen’s prosecution. The DOJ’s basis for the increased use of these agreements is rooted in the utilitarian theory that the punishment of criminal corporations should deter and rehabilitate behavior while also maximizing the benefit to society (e.g. shareholders, employees and business community). The justice manual, memorandums and public speeches explicitly promote the use of N/DPAs for corporations to minimize collateral damage and the potential for negative societal impact. Originality/value This study applies a utilitarian framework to explain the criminal justice system’s increased use of pretrial diversion agreements for criminal corporations.
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Chua, Eunice, and Benedict Chan. "Deferred Prosecution Agreements in Singapore: What Is the Appropriate Standard for Judicial Approval?" International Commentary on Evidence 16, no. 1 (August 1, 2019). http://dx.doi.org/10.1515/ice-2019-0002.
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Abstract Originating from the US, deferred prosecution agreements (“DPAs”) have made their way to the UK through the Crime and Courts Act 2013 and Singapore through the Criminal Justice Reform Act 2018. The Singapore model for approval of DPAs draws heavily from the UK and both require proof to a court that DPAs are in the “interests of justice” and that their terms are “fair, reasonable and proportionate” before DPAs can be approved. This paper considers the theoretical basis for the court’s approval of DPAs, critically examines the application of the tests for approval of DPAs in the UK and considers Singapore’s likely approach. Where appropriate, it also draws on the experience of the US and identifies lessons that can be learnt for Singapore.
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Arlen, Jennifer. "The Potential Promise and Perils of Introducing Deferred Prosecution Agreements Outside the U.S." SSRN Electronic Journal, 2019. http://dx.doi.org/10.2139/ssrn.3428657.
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Diviák, Tomáš, and Nicholas Lord. "From text to ties: Extraction of corruption network data from deferred prosecution agreements." Data & Policy 5 (2023). http://dx.doi.org/10.1017/dap.2022.41.
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Abstract Deferred prosecution agreements (DPAs) are a legal tool for the nontrial resolution of cases of corruption. Each DPA is accompanied by a Statement of Facts that provides detailed and publicly available textual records of the given cases, including summarized evidence of who was involved, what they committed, and with whom. These statements can be translated into networks amenable to social network analysis allowing an analysis of the structure and dynamics of each case. In this study, we show how to extract information about which actors were involved in a given case, the relations and interactions among these actors (e.g., communication or payments), and their relevant individual attributes (gender, affiliation, and sector) from five Statements of Fact. We code the extracted information manually with two independent coders and subsequently, we assess the inter-coder reliability. For assessing the coding reliability of nodes and attributes, we use a matching coefficient, whereas for assessing the coding reliability of ties, we construct a network from the coding of each coder and subsequently calculate the graph correlations of the two resulting networks. The coding of nodes and ties in the five extracted networks turns out to be highly reliable with only slightly lower coding reliability in the case of the largest network. The coding of attributes is highly reliable as well, although it is prone to missing data on actors’ gender. We conclude by discussing the flexibility of our data collection framework and its extension by including network dynamics and nonhuman actors (such as companies) in the network representation.