Tag Archives: oil-for-food scandal

Guest Post: Further Developments on French Law Regarding Anti-Bribery Prosecutions by Multiple States

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GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

The Supreme Court of France recently reversed two criminal judgments on the application of the international double jeopardy principle (or ne bis in idem, as the principle is known in Europe and elsewhere) in transnational bribery cases (and others). Taken together with some other recent developments, these developments suggest a renewed determination in France to regain leadership from US prosecutors in enforcing international bribery norms in France.

The ne bis in idem principle limits prosecutors’ power to pursue individuals or companies already convicted or acquitted elsewhere, including in other countries. Several European countries have domestic laws endorsing this principle; in France, the prosecutor is not bound by non-French outcomes if the French prosecution is “territorial” (that is, if an element of the offense took place on French soil) but cannot prosecute a defendant already pursued elsewhere if the only French basis for prosecution would be so-called “extraterritorial” principles (such as French citizenship of the perpetrator or the victim). Separately, a number of Europe-wide treaties, the most effective of which is the Convention Implementing the Schengen Agreement (CISA), have provisions that, with some exceptions, basically mean that no one can be prosecuted twice in Europe for the same offense.

But these provisions do not apply to US prosecutors, who are by far the most aggressive and effective pursuers of cross-border crimes such as overseas bribery. US courts interpret the Double Jeopardy clause of the Fifth Amendment to mean only that a single sovereign cannot prosecute the same defendant twice for the same offense. Some have argued that the US position creates a tension with Article 4.3 of the OECD Anti-Bribery Convention, which provides that when more than one country is competent to prosecute, they must consult to “determin[e] the most appropriate jurisdiction for prosecution,” clearly contemplating that only one country prosecute a given defendant for the same acts. But for reasons I have explored elsewhere, as well as in this space here and here, US prosecutors have not followed the spirit of Article 4.3, instead acting as the “final arbiter” of outcomes around the world, not hesitating to bring actions if they deem non-US outcomes insufficient.

Two formally unrelated decisions of the Paris Court of Appeals in 2016 – the ones that the French Supreme Court just vacated – seemed to complicate matter still further: Continue reading →

Why the Repeal of the U.S. Publish-What-You-Pay Rule Is a Major Setback for Combating Corruption in the Extractive Sector

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Bonnie J. Palifka, Assistant Professor of Economics at Mexico’s Tecnológico de Monterrey (ITESM) contributes today’s guest post:

Last Friday, following the U.S. House of Representatives, the Senate voted to repeal a Securities and Exchange Commission (SEC) regulation that required oil, gas, and minerals companies to make public (on interactive websites) their payments to foreign governments, including taxes, royalties, and “other” payments. The rule was mandated by Section 1504 of the 2010 Dodd-Frank Act, but had only been finalized last year. President Trump’s expected signature of the congressional resolution repealing the rule will represent a major blow to anticorruption efforts, and a demonstration of just how little corruption matters to his administration and to Congressional Republicans.

The extractive industry had lobbied against this rule, arguing that having to report such payments is costly to firms and puts them at an international disadvantage. Some commentators have supported their efforts, arguing, for example, that the Section 1504 rules are unnecessary because the Foreign Corrupt Practices Act (FCPA) already prohibits firms under SEC jurisdiction—including extractive industry firms—from paying bribes abroad. This argument misses the mark: The extractive sector poses especially acute and distinctive corruption risks, which the FCPA alone is unlikely to remedy if not accompanied by greater transparency. Continue reading →

Guest Post: Does International Law Require an International Double Jeopardy Bar?

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GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

Most countries prohibit multiple prosecutions for the same acts or offenses. This is known in the United States as the prohibition against “double jeopardy”; in Europe and elsewhere the principle is known as ne bis in idem. But what happens if a person or company is pursued in more than one country? This question is particularly relevant to the fight against foreign bribery, where the same act will often offend the criminal laws of multiple countries. The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted in 1997, clearly anticipated the possibility of multi-state prosecutions, but provided in Article 4.3 only that the relevant authorities should “consult with a view to determining the most appropriate jurisdiction for prosecution,” a provision that has been consistently interpreted as precatory, not providing an individual right against double prosecution.

The law in the United States provides no protection against duplicate prosecution by a different sovereign. The situation is more complex in Europe. In some countries, such as France, domestic legislation limits a prosecutor’s power to pursue a person or entity already the object of a prosecution in another country, but only if the exercise of French jurisdiction is “extraterritorial” (that is, where no constitutive act of the alleged crime took place on French territory, but the prosecution based on some other factor, such as the French nationality of the accused or the victim).  Within Europe, a series of overlapping treaties—Protocol Number 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF), adopted in 1984 by the Council of Europe and signed by most but not all of its members; Article 54 of the Convention to Implement the Schengen Agreement (CISA), adopted in 1990; and Article 50 of the Charter of Fundamental Rights of the European Union (CFR) adopted in 2009—all contain ne bis in idem provisions, though they are not identical. (The CISA provision, for example, protects against re-prosecution based on the same “acts,” while the CFR and CPHRFF protect against multiple prosecutions for the same “offense.”)  The CISA provision has been expansively interpreted by the European Court of Justice, which has noted that CISA mandates a “mutual trust” in the criminal justice systems of other signatory countries, and respect for their decisions “even when the outcome would be different if [the second country’s] own national law were applied.”

Lurking behind these and other developments in Europe is the possibility that protection against multiple prosecutions may one day be viewed as right, grounded in international treaty obligations, that is cognizable under domestic constitutions. No court has yet so ruled, but there are sufficient intimations of such a possibility in some French decisions, for example, that the issue is frequently raised there. Continue reading →