Peter Herbel, Beat Hess and Massimo Mantovani on the need for a 
balance between anti-bribery enforcement and unfairly duplicated proceedings

Corruption is an impediment to international business, to fair competition and to sustainable global development. Violations of anti-bribery laws must be investigated and prosecuted, and appropriate sanctions should be levied against government officials as well as individuals and entities found to have made improper payments to government officials. At the same time, overlapping enforcement of anti-bribery laws by regulators in multiple jurisdictions should not unfairly burden or penalise corporations.

The Organization for Economic Co-operation and Development (OECD) Anti-Bribery Convention has been adopted by 34 countries, and the United Nations Convention against Corruption (UNCAC) has been adopted by 140. Most of the ratifying countries of these conventions also have their own anti-bribery laws, with unique scope, interpretation, enforcement mechanisms and penalties. Further, many of these laws authorise regulators to extend the reach of their investigations into foreign jurisdictions.

Co-operation between authorities from different jurisdictions in the investigation of international corruption cases is a powerful tool in the fight against corruption in the investigation phase. Thus, multinational corporations face the risk of having to defend multiple investigations – commonly termed 'parallel proceedings' – in different jurisdictions (by national prosecutors or other regulatory agencies) for the same or similar conduct. These corporations are often subject to duplicative sanctions from different foreign authorities. In addition, a number of corporations involved in the same illicit conduct may well face different final consequences depending on their own jurisdiction.

Furthermore, parallel proceedings can have a negative impact on the powerful incentives that exist to encourage corporations to voluntarily self-report misconduct. These incentives include receiving credit for self-reporting and otherwise co-operating with regulators, as well as the ability to resolve matters without litigation. However, with an increasing risk of having parallel proceedings and parallel enforcements in different jurisdictions for the same conduct, corporations may not seek to take advantage of such incentives 
out of fear that doing so may 
trigger a parallel proceeding in another jurisdiction.

Clearly, such considerations make self-reporting a very difficult calculation for companies at the best of times, but consider the further complication of double jeopardy. The concept is one of the oldest and most important legal constructs in civilisation. In 533 AD, the Romans codified the principle, which was recorded first by Athenian Demosthenes in 355 BC when he said: "The law forbids the same man to be tried twice for the same issue." Notwithstanding the enshrining of double jeopardy clauses in the Fifth Amendment of the US Constitution and in the Charter of Fundamental Rights of the European Union, the principle is substantially not applied in international corruption cases.

It is both unfair and discriminatory to expose corporations to multiple enforcement proceedings for the same issue. Doing so is not only overly burdensome on the corporation, but the assessment of penalties from multiple foreign regulators stemming from the same conduct violates fundamental principles of fairness and of the rule of law.

The enforcement actions in 2010 brought by US authorities and other foreign regulators against the four partners (from Italy, Japan, US and France) of the so-called TSKJ consortium incorporated in Madeira, Portugal, illustrate the double jeopardy concerns present in international corruption cases. The case involved bribes paid by TSKJ up to June 2004 through an UK agent to Nigerian officials to obtain construction contracts. Several consortium members entered into settlements with the US Department of Justice (DoJ) and the US Securities and Exchange Commission (SEC) for, in aggregate, an amount, of more than $1.5bn (£950m). Many foreign regulators, including those in Europe, Asia and Africa, conducted their own parallel investigations, and some but not all of TSKJ's consortium members faced, or are still facing, duplicative sanctions in multiple jurisdictions for the same conduct.

The TSKJ case and others like it demonstrate the urgent need for an internationally-recognised regulatory framework that clearly and uniformly expresses a ne bis in idem principle (no double jeopardy) to avoid multiple investigations and sanctions for the same conduct.

Of course, establishing such a framework is challenging. It would require foreign regulators to agree on which regulator is best suited to prosecute particular bribery investigations. Certain regulators would be forced to take a passive role in the enforcement phase, though they could still play a vital role in the investigation phase. Considering the political considerations involved in anti-bribery investigations, including the financial windfalls that regulator agencies receive in fines and penalties, that may be a tough sell.

The double jeopardy issue in parallel proceedings, among others, was one of the recommendations by the 'B20' group of business leaders at the G20 forum in Cannes on 3 November 2011. Specifically, on this point, the B20 report recommends to: "Enhance inter-governmental co-operation concerning multijurisdictional bribery cases in order to avoid double jeopardy. Violations of anti-bribery laws should be vigorously investigated, prosecuted and remedied in all affected jurisdictions. It is important, however, that enforcement authorities co-ordinate prosecutions to avoid, where possible, inappropriate multiple proceedings concerning the same offence. Avoidance of duplicate proceedings could in many cases accelerate remediation of the underlying causes of the offence. The principle contained in article 4.3 of the OECD convention and in article 42 of the UNCAC should be 'translated' into a more immediate and effective rule of international ne bis in idem to be introduced in the various anti-bribery national acts and legislation."

In the coming months, this issue will be further discussed in a variety of forums, including the United Nations Office on Drugs and Crime and the Organization for Security and Co-operation in Europe. A balance must be struck between anti-bribery enforcement and the basic legal principle applicable to any citizen of not being subject to fundamentally unfair and duplicative parallel proceedings. In addition, a uniform, fair and non-discriminatory international regulatory framework will enhance the co-operation between business and authorities and will be a key tool in the common fight against corruption.

Peter Herbel is group general counsel of Total, Beat Hess is an attorney and the former head of legal of Royal Dutch Shell and Massimo Mantovani is general counsel of Eni. The authors thank Leigh Dance of ELD International for her assistance on this article.