In a recent post, I argued that U.S. authorities investigating British pharma giant GlaxoSmithKline (“GSK”) should consider criminally prosecuting GSK but partially offsetting any attendant penalty in light of the $490 million fine already imposed by China. This option is only available to the DOJ, though, because it stands on one side of a crucial divide in the global anticorruption regime: the U.S. — unlike Canada, the U.K., and the European Union — does not recognize an international variant of ne bis in idem (“not twice for the same thing”) (also known as “international double jeopardy”).
Recognizing an international double jeopardy bar can have a dramatic impact on a country’s capacity to combat international corruption. For countries like the U.K., being second-in-line to target an instance of transnational bribery often means not being able to prosecute the conduct at all. (For example, in 2011, the U.K. had to forego criminal sanctions against DePuy International because the U.S. had already prosecuted the British subsidiary.) In recent years, though, a spike in the number of parallel and successive international prosecutions has inspired a small but growing chorus of commentators calling for countries like the U.S. to formally embrace international double jeopardy.
To these commentators’ credit, many of their arguments sound in basic notions of fairness: you shouldn’t punish someone twice for the same crime. But before we jump on the double jeopardy bandwagon, I want to spend a few minutes explaining why, when it comes to the global fight against transnational bribery, double jeopardy probably isn’t all it’s cracked up to be.
To begin, most arguments calling for the U.S. and other OECD member countries to recognize international double jeopardy are nonstarters. Consider, for example, Professor Michael Van Alstine’s 2012 article arguing that the OECD Anti-Bribery Convention obligates the U.S. to recognize international double jeopardy. Professor Van Alstine offers two reasons this might be so, but both are flawed. First, he contends that the Convention’s requirement that each member state criminalize the same conduct creates an exception to the Supreme Court’s dual sovereignty doctrine. But that position is inconsistent with existing U.S. case law; in U.S. v. Jeong, for example, a federal appeals court held that the OECD Convention does not prevent the U.S. from prosecuting a businessman even though he had already been prosecuted in South Korea. Second, Professor Val Alstine suggests in the alternative that the consultation requirement in Art. 4.3 of the Convention overrides the U.S. Supreme Court’s doctrine, but this argument is difficult to reconcile with the soft “consultation” language of Art. 4.3.
A number of other commentators — including the B-20 (business leaders) Task Force, corporate counsel, and contributors to the FCPA Blog — have urged revisions to the OECD Convention. For instance, one commentator has argued that Art. 4.3, should be altered to create a binding mechanism for determining which OECD member state shall have jurisdiction over a particular case of bribery. But these arguments too suffer from an obvious and fatal flaw: political implausibility. Not only would this amendment require the assent of several countries that do not recognize ne bis in idem internationally, but it would also radically transform the Convention by requiring countries to surrender their sovereign power to determine whether to prosecute particular instances of criminal conduct. One need not take an extreme realpolitik view of international affairs to doubt that many countries would embrace such a revision to the Convention.
But perhaps more important than the legal or political barriers to U.S. recognition of international double jeopardy is the fact that this principle is simply not a good idea in the fight against transnational bribery. There are several reasons why the U.S. position (rejection of international ne bis in idem) is in fact the sounder position:
- It prevents a race to prosecute/settle: Imagine a world in which all countries have criminalized transnational bribery and recognized an international double jeopardy bar, but Country A enforces the law more aggressively and obtains larger penalties than Country B. Offenders would have a strong incentive to reach a criminal resolution with Country B in order to block any criminal prosecution by Country A. Additionally, both countries would have an incentive to “race to the courthouse,” lest they miss out on any criminal penalties. Presumably, this would lead to a race to settle, which would result in shorter investigations, less unraveling of broad schemes, and lower average penalties.
- It removes an excuse not to prosecute: Sadly, many OECD members are mere observers in the fight against transnational bribery; they don’t need any more excuses to not prosecute. Unfortunately, international double jeopardy offers just that. For example, a recent Transparency International report suggested that the U.K.’s Serious Fraud Office had cited a questionable interpretation of the nation’s double jeopardy law to justify failing to launch certain investigations.
- It prevents an absurd result: As the Wall Street Journal has suggested, China’s GSK prosecution may prevent the U.K. from prosecuting the British company. Now, if the tables had been turned — if the U.K. had prosecuted GSK and China recognized double jeopardy — then China would be left unable to prosecute a company for bribing Chinese officials. But transnational bribery harms two sovereigns, and stepping back, there seems to be something unfair about telling the U.K. it cannot prosecute its own company, or telling China that it cannot prosecute a company for harm done in China, merely because another nation got there first.
Of course, proponents of international double jeopardy offer a number of counterarguments — chief among them, fears that successive prosecutions result in under-disclosure and over-deterrence. But these claims are not particularly compelling. First, if the absence of double jeopardy discourages disclosure, increasing incentives for disclosure, or simply mandating disclosure, offers an easy fix. Second, although over-deterrence arguments admittedly turn on empirical questions that we simply cannot answer conclusively, in light of the harm caused by bribery and the difficulty in detecting it, I’m inclined to err on the side of more robust enforcement, especially when countries can — and perhaps should — consider foreign penalties when setting their own settlement demands.