Multijurisdictional Criminal Prosecutions: Double Jeopardy vis-à-vis Sovereign Right in the Globalised Antibribery Regime

1 Qingxiu Bu

Law - School of Law, Politics and Sociology - University of Sussex

Abstract

Paying bribes to foreign officials is an impediment to fair competition and sustainable global development. The act constituting a criminal offense may have occurred in several different countries, whereby each country has jurisdiction to investigation the crime. The extraterritorial effect of anti-bribery laws renders it possible to overlap with territorial jurisdiction in other countries. However, there is no legally-binding norm to prohibit prosecution of the same conduct in multiple jurisdictions. Absent a treaty, it is up to each state to exercise its wide discretion regardless of whether an MNC has already been prosecuted abroad. MNCs thus face the risk of having to defend parallel or even multiple proceedings. The difference between theories of liability and double jeopardy across jurisdictions inevitably poses challenges and complicates a company’s strategy for dealing with a global settlement. It is of great significance to address the global challenges through attenuating potential adverse counteractive effects of such multijurisdictional prosecutions, in order to substantially reduce global bribery in all their forms. This study is proceeded with five sections as the following. Part I starts with a conceptual approach on the doctrine of international double jeopardy. Duplicative actions can be counterproductive by discouraging parties from self-reporting and cooperating with enforcement authorities. It is also notable that the recognition of the doctrine could lead to the jurisdictional forum shopping. It raises a challenge as to how an MNC in question gets as much protection from multiple prosecution and punishment as is consistent with the current state of double jeopardy law. Part II discussed whether, or to what extent, a company can be protected from multiple prosecutions for the same bribery under the framework of international double jeopardy. The focus is put on how the U.S. and UK enforcement authorities address the issue of overlapping jurisdictions. The divergent approaches are differentiated, which is exemplified by a leading case of BAE that serves as a test stone of the doctrine of double jeopardy. Given one state may seek credit for sums paid to other states, Part III discusses approaches in mitigating potential adverse effects present in the multinational enforcement regimes between the U.S. and France. An unprecedented coordination along with divided penalties between the two sovereign states shields Societe Generale from double jeopardy. This represents a milestone in reshaping the landscape. Behind the above scenarios, of the utmost challenges is to address those political, cultural and ideological divergences across borders. As such, Part IV refers to the landmark case of GSK to illustrate how to deal with the doctrine between different legal systems, say, the U.S., China and the UK. The extent to which different enforcers cooperate with one another varies considerably. With the rising of the emerging demand-side state enforcement, MNCs are facing increased uncertainties. Based on a cost-benefit analysis, Part V explores the feasibility to enter into a single coordinated global settlement. Doing so would substantial reshape the enforcement landscape across multiple jurisdictions. A concluding remark is given in the final part of this study.

Keywords

"Doctrine of Double Jeopardy", "Corruption", "Corporate Criminal Liability"