10.6092/issn.2531-6133/15893
The recent global proliferation of domestic anti-corruption laws intended to have extraterritorial application has led to circumstances where multiple states seek to enforce their anti-corruption laws against the same entities based on the same set of facts. This work examines the development of these transnational enforcement circumstances, as well as the attendant policy complications, and poses the following research question: when approaching multi-jurisdictional anti-corruption enforcement efforts, have enforcement agencies developed a set of principles beyond general “equity” to inform their decisions about when and how to cooperate in investigations and coordinate and structure appropriate transnational anti-corruption settlement penalties? To attempt to answer this question, this work evaluates the context of these enforcement developments, recent transnational anti-corruption resolutions and interviews with former and current anti-corruption prosecutors from various states. The work concludes that the following guiding principles are emerging: (1) enforcement agencies seek to coordinate and cooperate during the investigatory stage if the benefits of cooperation outweigh the costs; (2) enforcement agencies seek to coordinate resolutions with enforcement agencies from other appropriate states recognition of jurisdictional nexuses and development of global anti-corruption efforts; (3) enforcement agencies utilize crediting of penalties and profit disgorgements paid to other states to both maintain domestic statutory enforcement and consistency and to encourage anti-corruption capacity building and future voluntary self-reporting by offending entities; (4) enforcement agencies consider “side-stepping” to encourage anti-corruption capacity building and future voluntary self-reporting by offending entities; and (5) enforcement agencies consider deference to other states for monitoring purposes to encourage anti-corruption capacity building. The identification of these emerging principles may provide additional insight into the investigation and resolution process and may inform entities and corporate counsel as they navigate potential transnational anti-corruption exposure.
application/pdf
2531-6133
15893
2
en
Matthew J. Feeley
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Coordination
Beyond “Equity”: The Continued Search for Guiding Principles of Transnational Anti‐Corruption Investigations
Text.Serial.Journal
https://bolognalawreview.unibo.it/
7
Articles & Essays
2022-12-13
2022-12-02
2022-11-22
2022-12-13
147-182
UBLR
Matthew J. Feeley
2022/12/13
10.6092/issn.2531-6133/15893
147
Civil Division of the U.S. Attorney’s Office, Southern District of Florida
2531-6133
2
Coordination
en
182
Beyond “Equity”: The Continued Search for Guiding Principles of Transnational Anti‐Corruption Investigations
https://bolognalawreview.unibo.it/article/download/15893/15039
7
llVOLUME 7                                 llISSUE 2                       ARTICLES & ESSAYS



                          UNIVERSITY OF BOLOGNA LAW REVIEW
                          https://doi.org/10.6092/issn.2531‐6133/15893

           Received: 17 Sept.2020 | Accepted: 28 Aug. 2022 | Published: 9 December 2022

                                                A
Beyond “Equity”: The Continued Search for Guiding Principles
      of Transnational Anti‐Corruption Investigations

                                      MATTHEW J. FEELEY
Matthew J. Feeley obtained an M.A. in International Relations at The Fletcher School of Law and
Diplomacy, Tufts University, a J.D., cum laude, at Boston College Law School and an A.B.,
Government, at Dartmouth College. He is currently an Assistant U.S. Attorney and Deputy Chief
of the Civil Division of the U.S. Attorney’s Office in the Southern District of Florida. A previous
version of this article appeared in The International Lawyer (54 The Int’I Lawyer 281 (2021)).

 @ matthewfeeley@hotmail.com
  ID
       0000-0002-2381-6948


                                            ABSTRACT

The recent global proliferation of domestic anti-corruption laws intended to have extraterritorial
application has led to circumstances where multiple states seek to enforce their anti-corruption
laws against the same entities based on the same set of facts. This work examines the
development of these transnational enforcement circumstances, as well as the attendant policy
complications, and poses the following research question: when approaching multi-jurisdictional
anti-corruption enforcement efforts, have enforcement agencies developed a set of principles
beyond general “equity” to inform their decisions about when and how to cooperate in
investigations and coordinate and structure appropriate transnational anti-corruption
settlement penalties? To attempt to answer this question, this work evaluates the context of
these enforcement developments, recent transnational anti-corruption resolutions and
interviews with former and current anti-corruption prosecutors from various states. The work
concludes that the following guiding principles are emerging: (1) enforcement agencies seek to
coordinate and cooperate during the investigatory stage if the benefits of cooperation outweigh
the costs; (2) enforcement agencies seek to coordinate resolutions with enforcement agencies
from other appropriate states recognition of jurisdictional nexuses and development of global
anti-corruption efforts; (3) enforcement agencies utilize crediting of penalties and profit
disgorgements paid to other states to both maintain domestic statutory enforcement and
consistency and to encourage anti-corruption capacity building and future voluntary
self-reporting by offending entities; (4) enforcement agencies consider “side-stepping” to
encourage anti-corruption capacity building and future voluntary self-reporting by offending
entities; and (5) enforcement agencies consider deference to other states for monitoring
purposes to encourage anti-corruption capacity building. The identification of these emerging
principles may provide additional insight into the investigation and resolution process and may
inform entities and corporate counsel as they navigate potential transnational anti-corruption
exposure.




                                               147
IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


                                              KEYWORDS
                    Anti-Corruption; Bribery, Corruption, Transnational, Coordination


                                         TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
1. Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
2. Evolution of Global Anti-Corruption Efforts and the Need for Cooperation in Investigations
   and Coordination and Penalty Apportionment in Transnational Anti-Corruption Resolutions 153
3. Insights from Recent Transnational Anti-Corruption Settlements . . . . . . . . . . . . . . 160
3.1. Société Générale S.A. Corruption Settlement - United States and France . . . . . . . . . 160
         3.2. Airbus S.E. Corruption Settlement - United States, France and United Kingdom . 162
         3.3. VimpelCom Corruption Settlement - United States and the Netherlands . . . . . 163
         3.4. Telia Corruption Settlement - United States, Sweden, and the Netherlands . . . 164
         3.5. Petrobras and Corruption Settlement - Brazil and the United States . . . . . . . 165
         3.6. Odebrecht and Braskem Corruption Settlement - Brazil, United States, and
            Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
         3.7. Gurlap Systems Limited Corruption Settlement - The United Kingdom . . . . . . 167
         3.8. Rolls-Royce PLC Corruption Settlement - Brazil, United Kingdom, and United
            States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
         3.9. Corruption Settlement Summation Table . . . . . . . . . . . . . . . . . . . . . . 168
4. Insight from Anti-Corruption Enforcers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
         4.1. Anti-Corruption Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
         4.2. Anti-Corruption Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
5. Emerging Guiding Principles of Cooperation and Coordination in Transnational
   Anti-Corruption Investigations and Resolutions . . . . . . . . . . . . . . . . . . . . . . . 174
         5.1. Enforcement Agencies Seek to Coordinate and Cooperate During the
            Investigatory Stage if the Benefits of Cooperation Outweigh the Costs . . . . . . . 175
         5.2. Enforcement Agencies Seek to Coordinate Resolutions with Enforcement
            Agencies From Other Appropriate States in Recognition of Jurisdictional
            Nexuses and Development of Global Anti-Corruption Capabilities . . . . . . . . . 176
         5.3. Enforcement Agencies Utilize Crediting of Penalties and Profit Disgorgements
            Paid to Other States to Both Maintain Domestic Statutory Enforcement
            Consistency and to Encourage Anti-Corruption Capacity Building and Future
            Voluntary Self-Reporting by Offending Entities . . . . . . . . . . . . . . . . . . . 178
         5.4. Enforcement Agencies Consider “Side-Stepping” to Encourage Anti-Corruption
            Capacity Building and Future Voluntary Self-Reporting by Offending Entities . . . 180
         5.5. Enforcement Agencies Consider Deference to Other States for Monitoring
            Purposes to Encourage Anti-Corruption Capacity Building . . . . . . . . . . . . . 181
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182




                                                  148
2022]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                          [Vol. 7:2


       INTRODUCTION

“In vain may heroes fight and patriots rave; if secret gold sap on from knave to knave.”
           — Alexander Pope1
Since the enactment of the United States [hereinafter U.S.] Foreign Corrupt Practices Act
[hereinafter the F.C.P.A.] in 1977,2 there has been a steady increase in global
anti-corruption efforts.3 In the past decade, these efforts have markedly increased in
intensity.4 The now significant global anti-corruption movement seeks to prohibit the
provision of corrupt benefits to foreign officials that influence the performance of their
duties.5 This effort caused various states to enact legislation prohibiting the conveyance
of bribes to foreign officials by entities or individuals that fall under the jurisdiction of
the “home” state.6               As the number of these domestic laws has grown, many
“overlapping” jurisdictions have developed in the anti-corruption context.7 Various
circumstances have arisen wherein multiple states have sought to enforce their domestic
anti-corruption laws against individuals or entities concurrently based on the same set
of operative facts.8 Many of these circumstances result in negotiated settlements with
multiple enforcement agencies requiring payment of substantial monetary penalties,
rather than trials in courtrooms.9 For example, in 2020, a single multi-jurisdictional
settlement led to multiple states sharing financial penalties reaching billions of dollars.10
As a result, questions have arisen as to when, and how, in the face of competing interest,
states cooperate, coordinate, and eventually apportion financial penalties. We do know

1
   ALEXANDER POPE, THE WORKS OF ALEXANDER POPE, WITH NOTES AND ILLUSTRATIONS, BY HIMSELF AND OTHERS 235
   (Will Roscoe ed., 1847).
 2
   See Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, 91 Stat. 1494 (1977) (codified as amended at 15
   U.S.C. §§ 78dd-1, 78dd-2, 78dd-3, 78ff, 78m (2012)).
 3
   See generally Kevin E. Davis, Between Impunity and Imperialism: the Regulation of Transnational Bribey (2019);
   Michelle R. Sanchez-Badin & Arthur Sanchez-Badin, Anticorruption in Brazil: From Transnational Legal Order
   to Disorder, 113 AJIL UNBOUND 326, (2019); see also Anti-Corruption Regulation Survey of 42 Countries, JONES DAY
   TOKIO (Nov. 1, 2019), https://www.jonesday.com/en/insights/2019/11/anticorruption-regulation-survey-
   2019 [https://perma.cc/3SAZ-5TDX].
 4
   See James Koukios & Amanda Aikman, Top 10 Anti-Corruption Developments of the 2010s, CORP. COMPLIANCE
   INSIGHTS (May 6, 2020), https://www.corporatecomplianceinsights.com/top-10-anti-corruption-
   developments-2010s/ [https://perma.cc/6L7R-URV8].
 5
   Organisation for Economic Co-operation and Development, Convention on Combating Bribery of Foreign
   Public Officials in International Business Transactions, Dec. 17, 1997, 37 I.L.M. 1. (establishing the most
   widely accepted definition for bribery of foreign official and is the most utilized by signatory states even
   with differing anti-corruption laws).
 6
   See Jessie M. Reniere, Fairness in FCPA Enforcement: A Call for Self-Restraint and Transparency in Multijurisdictional
   Anti-Bribery Enforcement Actions, 24 ROGER WILLIAMS UNIV. L. REV. 167, 170 (2019).
 7
   Id.
 8
   Id.
 9
   Id. at 178.
10
   See, e.g., Kate Beioley, Airbus Case Reflects France’s Changed Ways on Corruption, FIN. TIMES (Feb.16, 2020),
   https://www.ft.com/content/fe71368e-4cf6-11ea-95a0-43d18ec715f5.



                                                          149
 IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


from public pronouncements issued by the relevant enforcement agencies, as well as
publicly available settlement agreements and related documents, that, at times, there is
some type of cooperation, coordination, and apportionment among states.11 But we do
not know how these decisions are made or if there is a set of shared principles that
govern the process.
          The major domestic anti-corruption laws do not address these issues.                             For
instance, the F.C.P.A.,12 the United Kingdom [hereinafter the U.K.] Bribery Act of 2010,13
and the Brazil Clean Company Act14 are silent about cooperation, coordination, and
apportionment of penalties among and between multiple jurisdictions. International
conventions and treaties on anti-corruption superficially address international
cooperation, but do not address the issues of coordination or apportionment of penalties
in transnational anti-corruption settlements.15                  For instance, the Organization for
Economic Co-operation and Development’s [hereinafter O.E.C.D.] Convention on
Combating Bribery of Foreign Officials in International Business Transactions
[hereinafter the O.E.C.D. Convention Against Bribery], adopted in 1997, states that when
there is overlapping jurisdiction, all signatories should consult one another to determine
the most appropriate jurisdiction and provide mutual legal assistance.16 The United
Nations Convention Against Corruption [hereinafter U.N.C.A.C.],17 adopted in 2003,
recognized the growing field of domestic anti-corruption legislation, but does not
address methods or procedures states should use to cooperate, coordinate, and
determine apportionment of financial penalties.18                      Various bilateral mutual legal
11
   See discussion infra Section 3.
12
   F.C.P.A., supra note 2.
13
   See,       e.g.,    U.K.     Bribery     Act     2010,      UK      Public     General      Acts, 2010 c. 23,
   http://www.legislation.gov.uk/ukpga/2010/23/contents. (Eng.).
14
   Lei No. 12846/14, de 1 de Agosto de 2013, see Diário Oficial da União [D.O.U.] de 29.01.2014 (Braz.),
   translated in Law No. 12,846 of August 1, 2013; see also Trench, Rossi e Watanbe Advogados (2013),
   http://f.datasrvr.com/fr1/813/29143/Trench_Rossi_e_Watanabe_-_Brazil’s_anti-bribery_law__12846-
   2013.pdf [https://perma.cc/F85C-9YQW].
15
   See generally U.N. Convention Against Corruption, Oct. 31, 2003, G.A. Res. 58/4, UN Doc. A/RES/58/4.
16
   Organisation for Economic Co-operation and Development, Convention on Combating Bribery of Foreign
   Public Officials in International Business Transactions, supra note 5, art. 9.; but see Branislav Hock,
   Transnational Bribery: When is Extraterritoriality Appropriate?, 11 CHARLESTON L. REV. 305, 323-24 (2017)
   (criticizing the O.E.C.D. Convention Against Bribery language about “appropriate jurisdiction” as too “wide”
   and accordingly of little use in guiding enforcement agencies facing overlapping jurisdictional claims).
17
   See United Nations Convention Against Corruption, supra note 15, Art.                                 4, §3.
   https://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf
   [https://perma.cc/MZ64-KB4D] (“When more than one Party has jurisdiction over an alleged offence
   described in this Convention, the Parties involved shall, at the request of one of them, consult with a view
   to determining the most appropriate jurisdiction for prosecution.”). See also U.N.C.A.C., supra note 15.
18
   See Criminal Law Convention on Corruption, Jan. 27, 1999, 2216 U.N. Doc. 225, E.T.S. No. 173. Intern-
   American Convention Against Corruption, Mar. 29, 1996, Senate Consideration of Treaty Doc. No. 105-39, 35
   I.L.M 724. African Union Convention on Preventing and Combating Corruption, July 1, 2003, 43 I.L.M. 5 (all
   generally accepted multistate anti-corruption agreements that do not address apportionment of criminal
   penalties amongst different jurisdictional authorities).


                                                      150
2022]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 7:2


assistance treaties [hereinafter M.L.A.T.s] obligate cooperation in connection with
evidence gathering, process of service, asset seizure, and so forth, but do not address
resolution coordination or penalty apportionment in the multistate anti-corruption
context.19
           There is also little publicly available guidance from enforcement agencies or
scholarly commentary that explains how enforcement agencies approach whether, and
how much, they should apply shared principles in determining if and how to cooperate
in investigations as well as coordinate and apportion financial penalties in circumstances
of overlapping anti-corruption jurisdiction.20                   To date, the most relevant document
appears to be the May 9, 2018, memorandum issued by the U.S. Department of Justice
[hereinafter D.O.J.]21 This document charges all department components and U.S.
Attorneys that they should “consider the totality of fines, penalties, and/or forfeiture
imposed by all Department components as well as other law enforcement agencies and
regulators in an effort to achieve an equitable result”.22 While the policy does not
mention global anti-corruption efforts, former Deputy Attorney General Rosenstein
made clear its application is particularly important in the anti-corruption context.23 The
May 2020 memorandum, informally called the D.O.J.’s “Anti-Piling on Policy”,24 directs
that D.O.J. anti-corruption enforcers employ “equity” in addressing penalty
apportionment issues.25             While the “Anti-Piling on Policy” is an explicit statement
advocating the role of equity for D.O.J. enforcers, it provides no detail on how equity is to
be applied and, on its face, leaves those decisions solely to the judgment and discretion
of D.O.J. prosecutors.26           The document does not address cooperation or settlement
coordination. Moreover, the “Anti-Piling on Policy” applies only to D.O.J. employees.27

19
   Matt Reeder, Bad Math: State-Centric Anti-Corruption Enforcement + International Information Sharing Agreements
   = Conflicting Corporate Incentives, 49 Int’L. L. 325, 332 (2016).
20
   See Andrew T. Bulovsky, Promoting Predictability in Business: Solutions for Overlapping Liability in International
   Anti-Corruption Enforcement, 40 MICH. J. INT’L L. 549 (2019) (although there is little to no literature exploring
   prevailing principles, commentators have undertaken to criticize the current regime and advocate for
   formalized mechanisms for transnational anti-corruption enforcement).
21
   See generally Rod J. Rosenstein, Deputy Att’y Gen., Remarks at the American Conference Institute’s
   20th Anniversary New York Conference on the Foreign Corrupt Practices Act (May 9, 2018) in
   Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the American Conference Institute’s
   20th Anniversary New York Conference on the Foreign Corrupt Practices Act, Dep’t Just. (May 9,
   2018), https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-remarks-
   american-conference-institutes [https://perma.cc/2RXZ-EHE8] [hereinafter Memorandum from Rod J.
   Rosenstein].
22
   Id.
23
   Id.
24
   Sharon Oded, The DOJ’s Anti-Piling on Policy: Time to Reflect?, in NEGOTIATED SETTLEMENT IN BRIBERY CASE: A
   PRINCIPLED APPROACH 256 (Tina Søreide & Abiola Makinwa eds., 2020).
25
   See Memorandum from Rod J. Rosenstein, supra note 21.
26
   Contra Oded, supra note 24, at 253.
27
   Id.


                                                        151
 IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


Indeed, “while the D.O.J. certainly has been one of the world’s leading enforcement
authorities in combating foreign corruption, its unilateral policy is not globally
applicable, and other enforcement authorities—including U.S. authorities— may follow a
different approach”.28
              This context prompts the following research question: in multi-jurisdictional
anti-corruption enforcement efforts, have enforcement agencies developed a set of
principles beyond general “equity” to inform their decisions regarding cooperation,
coordination, and appropriate transnational anti-corruption settlement penalties? To
that end, Section 1 of this paper identifies the research methodology used to approach
this question. Section 2 describes the evolution of global anti-corruption efforts to
present leading to the need for increased clarity in the transnational anti-corruption
investigation and settlement context. Section 3 reviews recent global anti-corruption
resolutions with an eye towards emerging principles. Section 4 reviews insights on these
issues from interviews with former and current prosecutors employed by various
governmental agencies tasked with enforcing anti-corruption laws. Section 5 answers
the research question and offers emerging guiding principles helpful in understanding
how states cooperate and attempt to employ equitable treatment in reaching just
resolution when multiple states seek to enforce anti-corruption laws. Lastly follows the
conclusion.




         1. METHODOLOGY

To attempt to answer the research question, it is first necessary to understand the
evolution of global anti-corruption enforcement. This contextual examination provides
insight as to why international cooperation and coordination are imperative to reach
just resolutions in multi-jurisdictional anti-corruption enforcement circumstances.
After describing the context, the paper analyzes recent multi-state anti-corruption
settlements and insights from anti-corruption prosecutors to identify emerging
principles that guide the process.




28
     Id. at 253.


                                               152
2022]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 7:2


       2. EVOLUTION OF GLOBAL ANTI‐CORRUPTION EFFORTS AND THE
       NEED           FOR          COOPERATION                    IN        INVESTIGATIONS                     AND
       COORDINATION                      AND            PENALTY              APPORTIONMENT                         IN
       TRANSNATIONAL ANTI‐CORRUPTION RESOLUTIONS

For most of the last half-century, the F.C.P.A. was the only statute enforced in the global
anti-corruption context.29 Simply put, many states did not value the importance of the
anti-corruption effort.30 Some even considered bribery of foreign officials to be an
integral and accepted part of the conduct of international business.31 For some time, the
prevailing notion was that foreign companies needed to pay bribes in territories with
deeply rooted cultures of graft and that such conduct was neither unethical nor
immoral.32 In the 1970s, some even considered bribery to be “market enhancing”.33 For
example, before 2000, France, Germany, Austria, Belgium, Australia, Portugal, New
Zealand, Netherlands, and Switzerland allowed tax deductions for their companies that
paid overseas bribes to secure business opportunities.34
           But global anti-corruption efforts outside the United States slowly grew.35 For
instance, in 2010, the United Kingdom passed the U.K. Bribery Act 2010.36 In August
2013, motivated by the commitments it undertook in the O.E.C.D. Convention Against
Bribery, Brazil enacted both its Anti-Corruption Law and the Law on Fighting Organized
Crime, commonly referred to as the Brazilian Clean Company Act.37 In 2017, France

29
   See, e.g., Crim. Div. U.S. Dep’t Just. & Enf ’t Div. U.S. Sec. & Exch. Comm’n, A Resource Guide to the U.S.
   Foreign Corrupt Practices Act, (2020), https://www.sec.gov/spotlight/F.C.P.A./F.C.P.A.-resource-guide.pdf
   [https://perma.cc/CHY9-3HG2] (giving a primer on the F.C.P.A.); see also Matthew J. Feeley, U.S. Foreign
   Corrupt Practices Act’s Applicability to Non-U.S. Entities Sponsoring American Depository Receipts, 8 BUS. L. INT’L.
   91 (2007) (explaining F.C.P.A. jurisdictional issues).
30
   Padideh Ala’i, The Legacy of Geographical Morality and Colonialism: A Historical Assessment of the Current Crusade
   against Corruption, 33 VANDERBILT J. TRANSNAT’L L. 877 (2000) (discussing the concept of “geographic morality”
   and how it shaped the development of bribery of foreign officials).
31
   Id. at 881 (defining the “rule of geographical morality” as a norm by which a citizen of a country in the
   North may engage in acts of corruption in a country in the South, including bribery and extortion, without
   the attachment of any moral condemnation to those acts).
32
   Id. at 896–902.
33
   Rachel Brewster & Samuel W. Buell, The Market for Global Anticorruption Enforcement, 80 LAW Contemp. Probs.
   193, 198-99 (2017).
34
   See, e.g, Siemens, A Giant Awakens, ECONOMIST (Sept. 9, 2020), https://www.economist.com/briefing/2010/09/
   09/a-giant-awakens [https://perma.cc/4GSG-Q7NV]; see also Martine Milliet Einbinder, Writing off Tax
   Deductibility, O.E.C.D. OBSERVER (Apr. 2000), https://oecdobserver.org/news/archivestory.php/aid/245/
   Writing_off_tax_deductibility_.html [https://perma.cc/2EHS-THDS].
35
   See Christopher J. Duncan, The 1998 Foreign Corrupt Practices Act Amendments: Moral Empiricism or Moral
   Imperialism, 1 ASIAN-PACIFIC L. Pol’Y J . 16 (2000) (highlighting a notion that the U.S. led effort to promote
   global anti-corruption laws and their meaningful enforcement is little more than cultural imperialism).
36
   See, e.g., U.K. Bribery Act 2010, supra note 13.
37
   See generally Renata Muzzi Gomes de Almeid & Shin Jae Kim, The New Brazilian Clean Company Act,
   EMPEA LEGAL Regul. Bull. 3 (2014), t.pdfhttps://www.empea.org/app/uploads/2017/03/Brazilian-Clean-
   Company-Act.pdf [Z-E4URhttps://perma.cc/D4RZ-E4UR].


                                                         153
 IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


enacted its own anti-corruption law—the Sapin II Legislation—and formed a new agency,
the Agence Française Anticorruption [hereinafter the A.F.A.], charged with enacting
regulations, monitoring compliance, and conducting enforcement.38                                    Also in 2017,
Argentina passed a law making domestic companies liable for bribery committed
abroad.39 Many other states, including China, India, Ireland, Malaysia, and Tanzania,
have either recently enacted or amended domestic anti-corruption laws.40 As of May
2018, the forty-four signatories to the O.E.C.D. Convention Against Bribery have
implemented domestic legislation that makes bribery of foreign officials unlawful.41
           Although many of these new laws are based on the provisions of the F.C.P.A.,42
they are not replicas of the F.C.P.A. . For instance, the U.K. Bribery Act is a strict criminal
liability statute that criminalizes receipt of a bribe, prohibits commercial bribery,43
provides a defense for a company with a robust compliance program and excludes a
facilitation payment exception.44 The Brazilian Clean Company Act differs from the
F.C.P.A., amongst other things, in that it cannot be used to assert criminal liability
against a company, applies a strict liability standard, and provides an explicit compliance
program defense.45
           Nevertheless, these laws, as well as others, generally track the O.E.C.D.
Convention Against Bribery’s definition of bribery (which followed the F.C.P.A.
definition).46        States also borrow from U.S. enforcement agencies’ anti-corruption
protocols, including the use of deferred prosecution agreements [hereinafter the D.P.A.s],
non-prosecution agreements [N.P.A.s], and publicized declinations of potential

38
   See Brandon L. Garrett, The Path of F.C.P.A. Settlements, in NEGOTIATED SETTLEMENTS IN BRIBERY CASES: A PRINCIPLED
   APPROACH 25, 38-39 (Tina Søreide & Abiola Mackinwa eds., 2020).
39
   Id. at 34.
40
   Marc Alain Bohn et al., Anti-Corruption, 53 YEAR IN REV. 347, 357-59 (2019).
41
   O.C.E.D. Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,
   May 2018, Senate Consideration of Treaty Document 105-43. See Eric C. Chaffee, From Legalized Business
   Ethics to International Trade Regulation: The Role of the Foreign Corrupt Practices Act and Other Transnational Anti-
   Bribery Regulations in Fighting Corruption in International Trade, 65 MERCER L. REV. 701, 713-23 (2014) (detailed
   description of the development of anti-corruption laws and agreements).
42
   See Glenn Ware & Kindra Mohr, Anticorruption Litigation Does Not Stop at the Water’s Edge, 39 GLOB. LITIGATOR
   59, 61 (2013).
43
   See, e.g., Jeffrey Boles, Examining the Lax Treatment of Commercial Bribery in the United States: A Prescription
   for Reform, 51 AM. BUS. L.J. 119, 120 (2014) (defining commercial bribery as, generally, bribery of non-
   governmental officials, usually in a business context). For example, if a company employee responsible for
   selecting a supplier was paid a bribe to select a certain supplier, that payment would be commercial bribery.
   Id. at 119.
44
   See Dominic Saglibene, The U.K. Bribery Act: A Benchmark for Anti-Corruption Reform in the United States, 23
   Transat’L L. & Contemp. Probs.119, 131-35 (2014); see also Margaret Ryznar & Samer Korkor, Anti-Bribery
   Legislation in the United States and United Kingdom: A Comparative Analysis of Scope and Sentencing, 76 MO. L. REV.
   415, 438-43 (2011) (discussion on facilitation payments).
45
   See Lindsay B. Arrieta, Taking the “Jeitinho” out of Brazilian Procurement: The Impact of Brazil’s Anti-Bribery Law,
   44 PUB. CONY. L. J. 157, 170–74 (2014).
46
   See generally Organisation for Economic Cooperation and Development, Convention Against Bribery, supra
   note 5.

                                                          154
2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                   [Vol. 7:2


enforcements.47            For example,         the Brazilian Clean Company Act—following
anti-corruption policy in the United States—provides incentives for voluntary
disclosure.48 Some development of global anti-corruption efforts may be attributed to
the growing international consensus that corruption leads to economic waste and often
causes competitive inefficiencies that slow growth.                    It is generally accepted that
“corruption hurts competition, raises prices, negates fair trade, and has social
consequences”.49 It is also generally accepted that corruption is linked to human rights
abuses.50 All that is true, and by way of example, the European Commission reports that
corruption costs the European Union [the E.U.] at least e120 billion annually.51 But there
are other possible motivations to consider.                 First, states recognize the substantial
anti-corruption penalties collected by U.S. enforcement agencies52 and have decided
that their treasuries could also benefit from the enforcement of similar laws with
comparable financial penalties. Second, because most large financial settlements with
U.S. enforcement agencies involve non-U.S. companies,53 some states may view the
United States’ enforcement of the F.C.P.A. as discriminatory and anti-foreigner in nature.
In turn, these states may desire laws they might use affirmatively against foreign
companies in the global marketplace. 54 One commentator has more gently asserted that
the goal of the F.C.P.A. was not to eradicate corruption, but rather to increase the
competitive advantage of U.S. companies in the international marketplace.55 Empirical
data suggests that U.S. prosecutions, including F.C.P.A. prosecutions, increasingly target
foreign corporations and foreign corporations pay larger fines than domestic
corporations.56 The latter finding stems from the fact that between 2004 and 2018, “the
average F.C.P.A. monetary resolution against U.S. companies was $21,182,931, compared
with $75,016,934 for non-U.S. companies”.57



47
   See Garrett, supra note 38, at 38.
48
   See, e.g., Sanchez-Badin & Sanchez-Badin, supra note 3, at 327.
49
   Ron Brown, EU-China FTA: Enhanced Enforcement and Umbrella Coverage of Anticorruption, 43 HASTINGS
   INT’L Compar. L. Rev. 211, 213 (2020).
50
   See generally Steve O’Hagan, Fuelling Corruption, Geographical, Nov. 2004, at 50, 50–51.
51
   The Costs of Corruption Across the European Union, see Greens/EFA Eur. Parl., (Dec 7, 2018),
   union/https://www.greens-efa.eu/en/article/document/the-costs-of-corruption-across-the-european-
   union/ [U-C78Phttps://perma.cc/9JKU-C78P].
52
   But see Ellen Gutterman, Banning Bribes Abroad: US Enforcement of the Foreign Corrupt Practices Act, 53
   OSGOODE HALL L. J. 31, 38 (2015).
53
   Id. at 49.
54
   See Brewster & Buell, supra note 33, at 204. “There are some abroad, especially in Europe, who believe that
   the United States may be using global corporate enforcement, especially F.C.P.A. enforcement, as a means
   of assisting U.S. firms in the competition for dominance among multi-nationals.” Id.
55
   See Gutterman, supra note 52, at 49. The “central purpose of F.C.P.A. enforcement is to ensure competitive
   access to global markets by U.S. firms—not to control corruption more generally.” Id. at 61.
56
   See Garrett, supra note 38, at 34.
57
   Michael S. Diamant et al., F.C.P.A Enforcement Against U.S. and Non-U.S. Companies, 8. MICH. BUS. &
   ENTRAPRENEURAL L. REV. 353, 371 (2019).
                                                     155
 IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


Indeed,
           foreign companies have faced stratospheric monetary penalties
           compared with domestic companies in recent years. The contrast was
           particularly acute in 2017, when foreign corporations paid an average
           of $150,349,415 (or $1.05 billion in total) compared with an average of
           $16,103,333 (or $96.6 million in total) for domestic corporations.58
The following graph demonstrates the disproportionate representation of non-U.S.
companies in the largest F.C.P.A. resolutions to date:59




                                                Figure 1


Notwithstanding the debate over the motivations and incentives for the growth of global
anti-corruption laws, there is no dispute that these laws have proliferated. With the
proliferation of this network of anti-corruption laws, corresponding investigations by
various non-U.S. enforcement agencies have also grown.60 As of December 31, 2019,
there are no less than 328 active investigations of bribery of foreign officials being
conducted by enforcement authorities in thirty-seven states.61 Only thirty seven of these

58
   Id.
59
   See generally Harry Cassin, Airbus Shatters the F.C.P.A. Top Ten, F.C.P.A BLOG(Feb.     3, 2020, 7:48
   AM)https://F.C.P.A.blog.com/2020/02/03/airbus-shatters-the-F.C.P.A.-top-ten/[https://perma.cc/SGE5-
   J23G].
60
   See 2019 Global Enforcement Report, TRACE ANTI-BRIBERY COMPLIANCE SOLS.                     6 (2020),
   https://info.traceinternational.org/2019-ger [https://perma.cc/J3Z2-UBG3] (fill in the fields with
   requested information; then press “submit” to access report).
61
   Id. at 6.
                                                  156
2022]                          UNIVERSITY OF BOLOGNA LAW REVIEW                                 [Vol. 7:2


investigations are being conducted by U.S. enforcement agencies.62 The following graph
illustrates these facts as provided by TRACE Anti-Bribery Compliance Solutions:63




             Figure 2: Investigations Concerning Bribery of Foreign Officials by Country


The vast majority of anti-corruption enforcement actions around the world result in
negotiated settlement rather than litigation.64 This is, in part, because the criminal trial
risks - in terms of sentences and reputational harm - are quite substantial. Accused
parties may also be motivated to settle because litigating an anti-corruption action with
one state likely forecloses the possibility for future negotiated settlements with other
states.65 Historically, the concept of settled corporate criminal resolution was resisted by
many in continental European legal circles, both inside and outside of the
anti-corruption context, because of the notion that such settlements ran contrary to
62
   Id.
63
   Id. at 6 fig. 1.
64
   See generally Nick Gersh, The Curious Absence of F.C.P.A. Trials, GAB: GLOB ANTICORRUPTION BLOG (Sept.
   8,      2017),   https://globalanticorruptionblog.com/2017/09/08/the-curious-absence-of-F.C.P.A.-trials/
   [https://perma.cc/5VY4-AYYW].
65
   Id.


                                                   157
 IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


fairness, the adversarial pursuit of truth, and the privilege against self-incrimination.66
But the merit of negotiated resolution of corporate criminal liability in the
anti-corruption context is widely accepted around the globe.
           As global anti-corruption laws proliferated, circumstances arose where states
recognized concurrent jurisdiction over the same conduct that gave rise to potential
liability. These circumstances led to the advent of carbon copy enforcement, which
refers to successive enforcement action initiated by several foreign states with respect to
the same or similar nucleus of facts.67 Butros and Funk “use the term carbon copy
prosecutions to refer to successive, duplicative prosecutions by multiple sovereigns for
conduct transgressing the laws of several nations, but arising out of the same common
nucleus of operative facts”.68 The practice essentially makes it easier for subsequent
enforcement actions to piggyback off the successful earlier enforcement action. This is
true because most settlements - particularly under D.O.J. practice - typically include an
agreed statement of facts.69 Many Department of Justice’s Foreign Corrupt Practices Act
Settlements [hereinafter the D.O.J. F.C.P.A. Settlements] also include an obligation on the
settling entity to cooperate with foreign enforcement agencies.70                                   Accordingly,
anti-corruption enforcement authorities learned to use the facts admitted in the D.O.J.
F.C.P.A. settlement documents to subsequently assert additional liability against the
settling parties.71
           The advent of carbon copy enforcement led to an outcry from the
anti-corruption defense bar that their clients were being subjected to a “double
jeopardy” where they had no ability to assure themselves that a settlement with one
enforcement agency would provide certainty against future prosecutions by other states
and/or administrative actions by international entities.72 Although this assertion has

66
   See Mark Pieth, Negotiating Settlements in a Broader Law Enforcement Context, in NEGOTIATED SETTLEMENTS IN
   BRIBERY CASES: A PRINCIPLED APPROACH 19 (Tina Soreide & Abiola Mackinwa eds., 2020).
67
   See Andrew S. Boutros & T. Markus Funk, “Carbon Copy” Prosecution: A Growing Anticorruption Phenomenon in a
   Shrinking World, 2012 U. CH.I. LEGAL. F. 259, 269 (2012).
68
   Id.
69
   Id. at 275.
70
   Id. at 285.
71
   See Oded, supra note 24, at 235–36. The United States is not always the lead enforcer in copy-cat enforcement
   scenarios. For instance, in the Alcatel-Lucent S.A. matter, the D.O.J. and Security and Exchange commission
   [hereinafter S.E.C.] reached settlement with Alcatel-Lucent after the company had already settled the same
   conduct with Costa Rica. In the GlaskoSmithKline [hereinafter the G.S.K.] matter, G.S.K. reached settlement
   with Chinese authorities two years before it reached a settlement with the S.E.C. . Id.
72
   See Boutros & Funk, supra note 67, at 290–91. Indeed, the issues of certainty and finality are the bedrock of
   negotiated settlement process in U.S. domestic litigation. See, e.g., Poole v. Recycling Serv. of Fla., Inc, 2:18-
   cv-810-FtM-99MRM, 2020 WL 1496151, 7 (M.D. Fla. 2020) (“[T]he proposed settlement containing mutual
   releases buy Plaintiff certainty and finality with respect to this litigation”.); see also Gossinger v. Ass’n of
   Apartment Owners of Regency of Ala Wai, 835 P.2d 627, 633 (Haw. Super. Ct. 1992) (noting that public policy
   “favors the finality of negotiated settlements that avoid the costs and uncertainties of protracted litigation”).


                                                        158
2022]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 7:2


merit, it should be noted that once an entity becomes aware of issues surrounding
potential international corruption, competent legal counsel should advise the client to
consider exposure under the law of every state that might successfully assert jurisdiction
related to the alleged conduct. For example, while discussing the problem of carbon copy
enforcement, Oded points to the consortium that paid bribes to Nigerian officials
(through a British lawyer), in relation to a natural gas processing plant in Bonny Island,
Nigeria (commonly known as the “Bonny Island” matter).73                                The consortium was
comprised of French, Italian, American, and Japanese                   companies.74      Oded establishes that
the parties, perhaps unfairly, were subjected to multiple subsequent enforcement
actions over a period of six years after they settled with the U.S. enforcement
authorities.75 But given the sophistication of the parties involved and their respective
lawyers, it is hard to imagine the consortium members did not consider - and likely
deeply analyze - the full scope of multiple jurisdictional exposure at the outset of their
own internal factual investigation, and certainly before they settled with the United
States.
           Nonetheless, uncoordinated and duplicative anti-corruption enforcement has
been criticized for chilling self-reporting of potential violations, as a single report to one
enforcement agency might ignite a firestorm of uncoordinated investigations and
related expenses.76 With over-enforcement, “[t]he worry here. . . is that national
regulators, acting alone and without coordination with other national regulators, might
deter beneficial corporate behavior or encourage wasteful corporate behavior”.77
Moreover, the proliferation of duplicative enforcements has been criticized by some for
the disproportionate effects it renders on employers, shareholders, financiers, and
customers of the culpable parties.78 The criticism has been so substantial that some
commentators have called for the establishment of a “supranational administrative
body” to handle cases of overlapping anti-corruption jurisdiction in the transnational
73
   See, e.g., Oded, supra note 24, at 234.
74
   See Richard L. Cassin, ‘They Followed the Leader into F.C.P.A. Oblivion’, F.C.P.A. BLOG (Sept. 17, 2013,
   6:18 AM), https://F.C.P.A.blog.com/2013/09/17/they-followed-the-leader-into-F.C.P.A.-oblivion/
   [https://perma.cc/867J-SBZX].
75
   See, e.g., Oded, supra note 24, at 234.
76
   See Boutros & Funk, supra note 67, at 286–87. Indeed, this collective action excessive enforcement
   problem stands in stark contrast to recent commercial bribery circumstances, such as the FIFA matter,
   where many states failed to move forward with enforcement because of an apparent lack of jurisdiction
   and/or appropriate enforcement mechanism. See, e.g., Tip of the Iceberg: The Role of Banks in the FIFA Story,
   GLOB. WITNESS (June 19, 2015), https://www.globalwitness.org/en/campaigns/corruption-and-money-
   laundering/banks/tip-iceberg-role-banks-fifa-story/?gclid=Cj0KCQjw3s_4BRDPARIsAJsyoLMo3TT7JARKh-
   3t9ReYOnvKsT37zH6nlvQHiPeyUYEqz1fW1khsj8AaArYcEALw_wcB [https://perma.cc/DF73-YU4U].
77
   William Magnuson, International Corporate Bribery and Unilateral Enforcement, 51 COLUM. J. TRANSNAT’L L. 360,
   413 (2013).
78
   See, e.g., Oded, supra note 24, at 237–38; Jay Holtmeier, Cross-Border Corruption Enforcement: A Case for Measured
   Coordination Among Multiple Enforcement Authorities, 84 FORDHAM L. REV. 493, 516 (2015).


                                                        159
 IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


context.79 Given this context and in response to these challenges and criticism, the D.O.J.
issued the “No Piling on Policy”.80 While the policy certainly provides some level of
reassurance to the anti-corruption defense bar, questions remain as to how the policy is
carried forth within the D.O.J. and how U.S. and international enforcers cooperate and
coordinate amongst themselves in the anti-corruption context.




       3. INSIGHTS FROM RECENT TRANSNATIONAL ANTI‐CORRUPTION
       SETTLEMENTS

Recent transnational anti-corruption resolutions might provide both explicit and
implicit indications of the development of guiding principles utilized by enforcement
agencies in deciding when, and under what circumstances, to cooperate, coordinate, and
apportion financial penalties in the investigation and resolution of transnational
anti-corruption cases. While the following review is not exhaustive, it is intended to
capture recent resolutions that might reflect practices and emerging principles
currently utilized by enforcement agencies.




       3.1. SOCIÉTÉ GÉNÉRALE S.A. CORRUPTION SETTLEMENT ‐ UNITED
       STATES AND FRANCE

In June 2018, Société Générale S.A. [hereinafter Soc. Gen.] entered into coordinated
settlements with French and U.S. enforcement authorities in relation to bribes it paid to
Libyan officials and its manipulation of the London Inter Bank Offered Rate [hereinafter
L.I.B.O.R.].81 Soc. Gen. agreed to pay France and the United States more than $585 million
related to the bribing scheme.82 The United States credited Soc. Gen. $292,776,444 that it
79
   But see Thomas J. Bussen, Midnight in the Garden of Ne Bis in Idem: The New Urgency for an International Enforcement
   Mechanism, 23 CARDOZO J. INT’L Compar L. 485, 510 (2015).
80
   Jay Holtmeier et al., New D.O.J. Policy to Prevent “Piling-On”, WILMERHALE (May 30, 2018),
   https://www.wilmerhale.com/en/insights/client-alerts/2018-05-30-new-D.O.J.-policy-to-prevent-piling-
   on [https://perma.cc/8U4R-PQ4Z].
81
   See Press Release, U.S. Dep’t Just., Société Générale S.A. Agrees to Pay $860 Million in Criminal
   Penalties for Bribing Gaddafi-Era Libyan Officials and Manipulating L.I.B.O.R. Rate (June 4, 2018),
   https://www.justice.gov/usao-edny/pr/soci-t-g-n-rale-sa-agrees-pay-860-million-criminal-penalties-
   bribing-gaddafi-era-libyan [https://perma.cc/VD3S-38BJ].
82
   Id.; United States v. SGA Société Générale S.A., 18-CR-274, Plea Agreement 2, (D.N.Y. 2018) (dismissed as
   part of a deferred prosecution agreement, explaining that Soc. Gen. previously agreed to pay the Libyan
   Investment Authority $1.1 billion to settle the corruption conduct).


                                                         160
2022]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 7:2


paid to the Parquet National Financier [hereinafter P.N.F.].83 The U.S. credit equaled
exactly fifty percent of the total criminal penalty due to the United States.84                               In
announcing the settlement, the D.O.J. stated that it was the “first coordinated resolution
with French authorities in a foreign bribery case”.85 The settlement did not include the
requirement that Soc. Gen. engage an independent F.C.P.A. monitor,86 in part, because
Soc. Gen. was to be monitored by the A.F.A. .87 In announcing the settlement, the D.O.J.
expressly acknowledged the cooperation and assistance provided by the P.N.F., the
United Kingdom’s Serious Fraud Office [hereinafter S.F.O.], the Federal Office of Justice in
Switzerland, and the Office of Attorney General in Switzerland [hereinafter Swiss A.G.].88
The United States settlement with Soc. Gen. included a D.P.A. requiring cooperation with
international law enforcement efforts and a detailed agreed statement of facts.89
          The D.O.J. opened its investigation nearly two years before the P.N.F. opened its
investigation of Soc. Gen. and the United States shared relevant internal Soc. Gen.
documents with its French counterparts.90                     Indeed, it appears the D.O.J. delayed
resolution with Soc. Gen. to allow the P.N.F. to complete its inquiry and conclude a joint
resolution. French commentators believe the delegation of monitoring responsibility to
the A.F.A. was of substantial import, as it signaled the credibility and authority of French
enforcement agencies.91




83
   See Press Release, U.S. Dep’t of Just., Société Générale S.A. Agrees to Pay $860 Million in Criminal Penalties
   for Bribing Gaddafi-Era Libyan Officials and Manipulating L.I.B.O.R. Rate, supra note 81.
84
   Id.
85
   Id.
86
   See discussion infra Section 5.5. (further discussing monitors, which in this context are private attorneys
   engaged by the corporate entity at their expense and with the approval of the D.O.J. to monitor the entity’s
   prospective remediation and compliance efforts under the terms of the agreement between the entity and
   the D.O.J.).
87
   See Press Release, U.S. Dep’t of Just., Société Générale S.A. Agrees to Pay $860 Million in Criminal Penalties
   for Bribing Gaddafi-Era Libyan Officials and Manipulating L.I.B.O.R. Rate, supra note 82.
88
   Id.
89
   S.G.A. Société Générale S.A., supra note 82 (in accordance with a deferred prosecution agreement).
90
   See Valérie de Senneville & Sharon Wajsbrot, Le parquet enquête sur les opérations de Société Générale
   en Libye [The Prosecution Investigates the Operations of Societe Generale in Libya], LES ECHOS, (Nov.
   8, 2017, 1:01 AM), https://www.lesechos.fr/2017/11/le-parquet-enquete-sur-les-operations-de-societe-
   generale-en-libye-179033 [https://perma.cc/R3KJ-Q99A].
91
   Id.


                                                      161
 IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


     3.2. AIRBUS S.E. CORRUPTION SETTLEMENT ‐ UNITED STATES, FRANCE AND
     UNITED KINGDOM

In January 2020, Airbus SE [hereinafter Airbus] settled a corruption inquiry with U.S.,
French, and British enforcement authorities.92 Airbus paid $3.9 billion in total to settle
charges related to its scheme to bribe government officials around the world and to
resolve the company’s violations of the U.S. Arms Export Control Act [A.E.C.A.] and the
International Traffic in Arms Regulations [hereinafter I.T.A.R.].93 Airbus agreed to pay
the United States $527 million to settle the F.C.P.A. and I.T.A.R. violations, France $2.29
billion to settle foreign official and commercial bribery violations, and the United
Kingdom $1.09 billion related to bribes paid in Malaysia, Sri Lanka, Taiwan, Indonesia,
and Ghana.94 The U.S. settlement was reduced based on a credit for part of the fine paid
to French authorities.95           Under the resolution, the D.O.J. declined to require an
appointment of a compliance monitor, in part because Airbus was subject to oversight
from the A.F.A. .96 The resolution expressly recognizes the U.S. ability to assert F.C.P.A.
jurisdiction over Airbus “is limited” given that Airbus is neither an issuer nor domestic
concern.97
In reference to international coordination in Airbus, Assistant Attorney General Brian A.
Benczkowski stated:


            This coordinated resolution was possible thanks to the dedicated
            effort of our foreign partners at the Serious Fraud Office in the United
            Kingdom and the P.N.F. in France. The [D.O.J.] will continue to work
            aggressively with our partners across the globe to root out
            corruption, particularly corruption that harms American interests.98




92
   See Press Release, U.S. Dep’t of Just., Airbus Agrees to Pay Over $3.9 Billion in Global Penalties to
   Resolve Foreign Bribery and I.T.A.R. Case, THE UNITED STATES DEPARTMENT OF JUSTICE (Jan. 31, 2018),
   https://www.justice.gov/opa/pr/airbus-agrees-pay-over-39-billion-global-penalties-resolve-foreign-
   bribery-and-itarcase#:: ̃text=January%2031%2C%202020,Airbus%20Agrees%20to%20Pay%20over%20%243.9
   %20Billion%20in%20Global%20Penalties,Foreign%20Bribery%20and%20ITAR%20Case&text=The%20FCPA
   %20charge%20arose%20out,including%20contracts%20to%20sell%20aircraft [https://perma.cc/46K844J2].
93
   Id.
94
   Id.
95
   Id.
96
   See United States v. Airbus SE, 1226425, Airbus Deferred Prosecution Agreement 4(f), (D.D.C. 2020), THE
   UNITED STATES DEPARTMENT OF JUSTICE, https://www.justice.gov/opa/press-release/file/1241466/download
   [https://perma.cc/R6XN-WUXU].
97
   Id. § 4(i).
98
   U.S. Dep’t Just., Airbus Agrees to Pay over $3.9 Billion in Global Penalties to Resolve Foreign Bribery and
   I.T.A.R. Case, supra note 92.


                                                     162
 2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                   [Vol. 7:2


 Although anti-corruption inquiries of Airbus began with the S.F.O. in April 2016,99 France
 and the United Kingdom investigated Airbus together as a part of a “Joint Investigative
 Team”.100
           In Airbus, it appears the D.O.J. made an explicit decision to seek a substantially
 lower penalty than its French and British counterparts, instead of only “crediting”,
 because of Airbus’s nexus to Europe and those states in particular.101 In announcing the
 joint resolution, the D.O.J. stated:

             [F]or the F.C.P.A.-related conduct, the U.S. resolution recognizes the
             strength of France’s and the United Kingdom’s interests over the
             Company’s corruption-related conduct, as well as the compelling
             equities of France and the United Kingdom to vindicate their
             respective interests as those countries deem appropriate, and the
             [D.O.J.] has taken into account these countries’ determination of the
             appropriate resolution into all aspects of the U.S. resolution.102



     3.3. VIMPELCOM CORRUPTION SETTLEMENT ‐ UNITED STATES AND THE
     NETHERLANDS

 In February 2016, VimpelCom Ltd. [hereinafter VimpelCom] and its wholly owned Uzbek
 subsidiary, Unitel LLC [hereinafter Unitel], settled allegations that they paid bribes to
 government officials in Uzbekistan to allow them to enter and operate in the Uzbek
 telecommunications market.103             VimpelCom is based in the Netherlands and is the
 world’s sixth largest telecommunications company.104 VimpelCom agreed with the D.O.J.
 to pay $230 million.105 VimpelCom agreed to pay the S.E.C. and the Public Prosecution
 Service of the Netherlands - Openbaar Ministrie [hereinafter the O.M.] - $375 million (to
 be divided amongst them).106             Separately, VimpelCom agreed to pay the O.M. $230

99
    See Bruno Trevidic, Airbus renforce son dispositif anti-corruption [Airbus Strengthens its Anticorruption
    System], LES ECHOS, (May 22, 2017, 1:53 PM), https://www.lesechos.fr/2017/05/airbus-renforce-son-
    dispositif-anti-corruption-168670 [https://perma.cc/LR6S-DV6K].
100
    Id.
101
    U.S. Dep’t Just., Airbus Agrees to Pay over $3.9 Billion in Global Penalties to Resolve Foreign Bribery and
    I.T.A.R. Case, supra note 92.
102
    Id.
103
    See Press Release, U.S. Dep’t Just., VimpelCom Limited and Unitel LLC Enter into Global Foreign Bribery
    Resolution of More Than $795 Million; United States Seeks $850 Million Forfeiture in Corrupt Proceeds of
    Bribery Schemes (Feb. 18, 2016), https://www.justice.gov/opa/pr/vimpelcom-limited-and-unitel-llc-enter-
    global-foreign-bribery-resolution-more795-million [https://perma.cc/U9HV-W6XW].
104
    Id.
105
    Id.
106
    Id.


                                                      163
  IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


 million in criminal penalties.107 The D.O.J. agreed to credit the criminal penalty paid to
 the O.M. towards the total U.S. criminal penalty.108 In separate civil actions, the D.O.J.
 sought the forfeiture of more than $850 million held in bank accounts in Switzerland,
 Belgium, Luxembourg, and Ireland under the theory that these funds were bribe
 payments or monies used to launder bribe payments.109 The U.S. investigation was
 assisted by law enforcement in the Netherlands, Sweden, Switzerland, Latvia, Belgium,
 France, Ireland, Luxembourg, and the United Kingdom.110



      3.4. TELIA CORRUPTION SETTLEMENT ‐ UNITED STATES, SWEDEN, AND THE
      NETHERLANDS

 In November 2017, Swedish company Telia Company AB [hereinafter Telia] and its Uzbek
 subsidiary, Coscom L.L.C. [hereinafter Coscom], agreed with Sweden and the United
 States to settle allegations that they paid bribes to Uzbek government officials to secure
 telecommunications opportunities.111 In resolution with the D.O.J., Telia agreed to pay a
 criminal penalty of $275 million.112 Telia agreed with the S.E.C. to a disgorgement of
 profits and interest of $457 million, with the S.E.C. agreeing to credit half that amount in
 disgorged profits if Telia makes payment of the same to either the Swedish Prosecution
 Authority, or the O.M. .113 Separately, Telia agreed to pay O.M. $274 million in criminal
 penalties.114 The D.O.J. agreed to credit the criminal penalty paid to the O.M. in its
 agreement.115 In announcing the settlement, Acting D.O.J. Assistant Attorney General
 Kenneth A. Blanco stated the following: “This resolution underscores the Department’s
 continued and unwavering commitment to robust F.C.P.A. and white-collar criminal
 enforcement. It also demonstrates the Department’s cooperative posture with its foreign
 counterparts to stamp out international corruption and to reach fair, appropriate and
 coordinated resolutions”.116


107
    Id.
108
    Id.
109
    Id.
110
    Id.
111
    See Press Release, U.S. Dep’t Just., Telia Company AB and its Uzbek Subsidiary Enter into a Global
    Foreign Bribery Resolution of More than $965 Million for Corrupt Payments in Uzbekistan, (Sept. 21,
    2017), https://www.justice.gov/opa/pr/telia-company-ab-and-its-uzbek-subsidiary-enter-global-foreign-
    bribery-resolutionmore965#: :text=Stockholm%2Dbased%20Telia%20Company%20AB,than%20%24965%20m
    illion%20to%20resolve [https://perma.cc/3N55-7EME].
112
    Id.
113
    Id.
114
    Id.
115
    Id.
116
    Id.


                                                  164
 2022]                          UNIVERSITY OF BOLOGNA LAW REVIEW                                  [Vol. 7:2


 The Telia investigation was originally opened by Swedish authorities based on Swedish
 media reports about the corruption scheme.117                      Swedish, Dutch, and U.S. law
 enforcement provided each other with cooperation and assistance.118 Assistance was
 also provided by law enforcement from Austria, Belgium, Cyprus, France, Ireland, Latvia,
 Luxembourg, Norway, Switzerland, the Isle of Man, and the United Kingdom.119



      3.5.   PETROBRAS AND CORRUPTION SETTLEMENT ‐ BRAZIL AND THE
      UNITED STATES

 In September 2018, Petróleo Brasileiro S.A.-Petrobras [hereinafter Petrobras] reached
 agreement with Brazil and the United States to settle allegations Petrobras made corrupt
 payments to politicians and political parties in Brazil.120                   Under an arrangement
 involving the D.O.J., S.E.C., and the Ministerio Publico Federal in Brazil [hereinafter
 M.P.L.], Petrobras agreed to pay a total criminal penalty of $853 million, with the United
 States receiving twenty percent and Brazil receiving eighty percent.121 In explaining the
 settlement, the D.O.J. stated that the case presented a number of unique factors,
 “including that Petrobras is a Brazilian-owned company that entered into a resolution
 with Brazilian authorities and is subject to oversight by Brazilian authorities”.122
 Separately, Petrobras agreed with the S.E.C. to disgorgement of profits and interests in
 the amount of $933 million.123 In declining to require appointment of a compliance
 monitor, D.O.J. noted that Petrobras “will be subject to oversight by Brazilian authorities,
 including Brazil’s Tribunal de Contas de União and Comissão de Valories Mobiliários”.124




117
    Id.
118
    Id.
119
    Id.
120
    See Press Release, U.S. Dep’t of Just., Petróleo Brasilero S.A.-Petrobras Agrees to Pay More Than
    $850 Million for F.C.P.A. Violations, THE UNITED STATES DEPARTMENT OF JUSTICE (Sept. 27, 2018),
    https://www.justice.gov/opa/pr/petr-leo-brasileiro-sa-petrobras-agrees-pay-more-850-million-F.C.P.A.-
    violations [https://perma.cc/6RE2-CB5K].
121
    Id.
122
    Id.
123
    Id.
124
    Letter from Sandra Moser, Acting Chief, U.S. Dep’t Just., to Joseph Warin, Gibson, Dunn, & Crutcher,
    L.L.P. (Sept. 26, 2018), https://F.C.P.A..shearman.com/siteFiles/F.C.P.A.%20Cases/Petrobras%20-%20NPA.pdf
    [https://perma.cc/6N8R-E2LS].


                                                     165
  IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


      3.6.    ODEBRECHT AND BRASKEM CORRUPTION SETTLEMENT ‐ BRAZIL,
      UNITED STATES, AND SWITZERLAND

 In December 2016, Brazilian construction company Odebrecht S.A. [hereinafter
 Odebrecht] and Brazilian petrochemical company Braskem S.A. [hereinafter Braskem]
 resolved claims with Brazil, the United States, and Switzerland arising out of their
 schemes to pay bribes around the world.125 The resolution was structured through
 settlement with the D.O.J., the M.P.L., and the Swiss A.G., with the United States and
 Switzerland receiving ten percent each and Brazil twenty percent of the total criminal
 penalty of $4.5 billion from Odebrecht.126
             In resolution with D.O.J., Braskem agreed to pay the United States $632 million
 in criminal penalties.127 Braskem also agreed with the S.E.C., M.P.L., and Swiss A.G. that
 Braskem would pay a total of $325 million in disgorgement of profits, with seventy percent
 going to Brazil and fifteen percent each going to Switzerland and the United States.128
             The Odebrecht settlement was structured so that the U.S. criminal penalty was
 paid first, and the Brazilian and Swiss penalties were to be paid in subsequent
 installments.129 This is because Odebrecht claimed it did not have the financial ability to
 pay the penalties in one lump sum.130
             The Odebrecht settlement also served to emphasize the continuing challenge of
 carbon copy prosecutions131 in the transnational anti-corruption context. As part of the
 Odebrecht settlement, the company admitted to bribery conduct in Angola, Argentina,
 Colombia, Dominican Republic, Ecuador, Guatemala, Mexico, Mozambique, Panama,
 Peru, and Venezuela.132 Subsequently many of these jurisdictions either then began
 negotiating separate settlements with Odebrecht or banned Odebrecht from government
 contracting.133




125
    See Press Release, U.S. Dep’t Just., Odebrecht and Braskem Plead Guilty and Agree to Pay at Least
    $3.5 Billion in Global Penalties to Resolve Largest Foreign Bribery Case in History, (Dec. 21, 2016),
    https://www.justice.gov/opa/pr/odebrecht-and-braskem-plead-guilty-and-agree-pay-least-35-billion-
    global-penaltiesresolve#: :text=Odebrecht%20S.A.%20(Odebrecht)%2C%20a,States%2C%20Brazil%20and%20
    Switzerland%20arising [https://perma.cc/W7FN-KSCE].
126
    Id.
127
    Id.
128
    Id.
129
    See generally Sanchez-Badin & Sanchez-Badin, supra note 3, at 329–30.
130
    Id.
131
    See discussion supra Section 4.2. .
132
    See Sanchez-Badin & Sanchez-Badin, supra note 3, at 330.
133
    Id.


                                                   166
 2022]                          UNIVERSITY OF BOLOGNA LAW REVIEW                                  [Vol. 7:2


      3.7. GURLAP SYSTEMS LIMITED CORRUPTION SETTLEMENT ‐ THE UNITED
      KINGDOM

 In October 2019, the United Kingdom Serious Frauds Office entered into a deferred
 prosecution agreement with Guralp Systems Limited [hereinafter Guralp] to settle claims
 that Guralp paid bribes to a Korean official of the Korea Institute of Geoscience and
 Mineral Resources, in relation to opportunities to sell seismic measuring equipment to
 the same.134 As part of the resolution, Guralp agreed to pay the United Kingdom two
 million pounds in profit disgorgement.135
 While the D.O.J. opened an investigation Guralp, it declined to move forward with a
 prosecution in part because of

             the fact that [Guralp], a U.K. company with its principal place of
             business in the U.K., is the subject of an ongoing paral investigation
             by the U.K.’s Serious Fraud Office for violations of law relating to the
             same conduct and has committed to accepting responsibility for that
             conduct with the S.F.O. .136



      3.8.    ROLLS‐ROYCE PLC CORRUPTION SETTLEMENT ‐ BRAZIL, UNITED
      KINGDOM, AND UNITED STATES

 In January 2017, Rolls Royce P.L.C. [hereinafter Rolls-Royce] agreed to pay $800 million in
 penalties to be split between Brazil, the United Kingdom, and the United States to settle
 charges it paid bribes in Thailand, Brazil, Kazakhstan, Azerbaijan, Angola, and Iraq.137
 Rolls-Royce agreed to pay the United States $170 million and enter into a D.P.A.138
 Rolls-Royce agreed to pay the United Kingdom $604 million and enter into a D.P.A.139
 Rolls-Royce agreed to pay Brazilian authorities $26 million with that amount to be

134
    See generally Statement of Facts, Regina (Serious Fraud Office) v. Guralp Systems Ltd., https://cdn.wide-
    area.com/acuris/files/private-equity-law-report/documents/Guralp%20Statement%20of%20Facts.pdf
    [https://perma.cc/T7NT-R94V], (last visited Dec. 19, 2020).
135
    See generally Deferred Prosection Agreement, Serious Fraud Office v. Guralp Systems Ltd., SERIOUS
    FREUD OFFICE, https://www.S.F.O..gov.uk/download/deferred-prosecution-agreement-statement-of-facts-
    approved-judgment-S.F.O.-v-guralp-systems-ltd/ [https://perma.cc/EUV6-QX5K], (last visited Dec. 19,
    2020).
136
    See Letter from Daniel S. Kahn, Deputy Chief, U.S. Dep’t Just., Criminal Division to Matthew Reinhard,
    at Miller and Chevalier Chartered, THE UNITED STATES DEPARTMENT OF JUSTICE (Aug.               20, 2018),
    https://www.justice.gov/criminal-fraud/page/file/1088621/download [https://perma.cc/58BJ-2KMN].
137
    See Press Release, U.S. Dep’t Just., Rolls-Royce P.L.C. Agrees to Pay $170 Million Criminal Penalty to
    Resolve Foreign Corrupt Practices Act Case, THE UNITED STATES DEPARTMENT OF JUSTICE (Jan. 17, 2017),
    https://www.justice.gov/opa/pr/rolls-royce-plc-agrees-pay-170-million-criminal-penalty-resolve-
    foreign-corrupt-practices-act [https://perma.cc/V7BG-VL8X].
138
    Id.
139
    Id.
                                                     167
  IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


 credited against the U.S. settlement.140               The United Kingdom considered, but later
 decided against, bringing claims against individuals.141 Austria, Germany, the
 Netherlands, Singapore, and Turkey provided significant investigative cooperation.142



      3.9. CORRUPTION SETTLEMENT SUMMATION TABLE

 The following summation table may assist in further analysis of the aforementioned
 resolutions:




                                                     Table 1




140
    Id.
141
    But see Henry Cassin, UK Ends Draft Investigation of GSK and Individuals at Rolls-Royce, F.C.P.A. BLOG
    (Feb. 25, 2019, 1:28 PM), https://F.C.P.A.blog.com/2019/02/25/uk-ends-graft-investigations-of-gsk-and-
    individuals-at-rolls/ [https://perma.cc/GBR8-458H]; see also Case Updates, U.K. Serious Frauds Off., S.F.O.
    Closes GlaxoSmithKline Investigation and Investigation into Rolls-Royce Individuals, SERIOUS FREUD OFFICE
    (Feb. 22, 2019), https://www.S.F.O.gov.uk/2019/02/22/S.F.O.-closes-glaxosmithkline-investigation-and-
    investigation-into-rolls-royce-individuals/ [https://perma.cc/8YD3-U34B].
142
    See United States Dep’t. of Justice, Rolls-Royce P.L.C. Agrees to Pay $170 Million Criminal Penalty to Resolve
    Foreign Corrupt Practices Act Case, supra note 137.
143
    The exact terms of the VimpelCom apportionment between the Netherlands and United States is unclear
    from publicly available information. See Press Release, U.S. Dep’t Just., VimpelCom Limited and Unitel L.L.C.
    Enter into Global Foreign Bribery Resolution of More Than $795 Million; United States Seeks $850 Million
    Forfeiture in Corrupt Proceeds of Bribery Schemes, supra note 103.



                                                       168
 2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 7:2


       4. INSIGHT FROM ANTI‐CORRUPTION ENFORCERS

 In the course of researching these issues, several former, and one current, government
 officials responsible for enforcement of anti-corruption laws generously provided insights
 based on their personal professional experiences as to how states interact in the context of
 transnational anti-corruption investigations and settlements. A description of their input
 follows.



      4.1. ANTI‐CORRUPTION INVESTIGATIONS

 State-to-state cooperation in transnational anti-corruption investigations is often
 obligatory pursuant to either international conventions or bilateral treaties.144 There is,
 however, an informal component to cooperation.145                           As a matter of practice,
 anti-corruption prosecutors work to develop personal relationships with their foreign
 counterparts.146 For instance, the United States routinely sends D.O.J. anti-corruption
 prosecutors to international meetings and conventions regarding anti-corruption
 issues.147 The D.O.J. and S.E.C. recently hosted non-U.S. anti-corruption prosecutors for a
 meeting on anti-corruption issues.148 Accordingly, when they seek foreign cooperation
 in a particular investigation, enforcers often simply pick up the phone and call their
 known foreign contact.149               But for these personal relationships, much of the
 investigatory cooperation we have recently seen in this area would not have
 developed.150       The more formal cooperation request process, typically through the
 M.L.A.T. procedure is often cumbersome and recipient states may be non-responsive.151
 Even with the M.L.A.T. process, successful cooperation is greatly enhanced in the
 presence of a preexisting professional relationship.152
            Deciding whether to seek international cooperation in the investigation phase
 often turns on a number of factors and is essentially a subjective balancing test. For
 instance, enforcement agencies might balance the benefits of cooperation with the

144
    See Telephone Interview with Ephraim Wernick, Partner, Vinson & Elkins, L.L.P. (July 1, 2020) (Wernick is
    the former Assistant Chief for the U.S. Department of Justice’s Criminal Fraud Section and the former U.S.
    delegate and negotiator on anticorruption issues to O.E.C.D. and the United Nations. Wernick was also a
    negotiator of the anticorruption component of NAFTA 2.0.).
145
    See generally Telephone Interview with Taavi Pern, Chief State Prosecutor, Prosecution Dep’t of the Estonian
    Prosecutor General, (July 15, 2020).
146
    Id.; see Telephone Interview with Marcello Miller, Former Federal Prosecutor, Brazilian Public Prosecutor’s
    office (July 14, 2020) (Miller worked extensively on both the Embraer and Odebrecht matters).
147
    See, e.g., Telephone Interview with Ephraim Wernick, supra note 144.
148
    Id.
149
    Id.
150
    But see Telephone Interview with Marcello Miller, supra note 146.
151
    Id.
152
    Id.
                                                      169
  IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


 increases in bureaucratic complications and potential multiplicity of discovery
 obligations.153 By deciding not to seek cooperation, particularly with the country that is
 the situs of the alleged bribing conduct, enforcers run the risk of angering their foreign
 counterparts if the investigation is later revealed.154 Moreover, enforcers might seek
 foreign cooperation as a method of building personal relationships and to incentivize the
 development of foreign anti-corruption capabilities.155                         For example, if a U.S.
 enforcement agency developed corruption evidence but did not have a jurisdictional
 basis to assert a claim under U.S. law, it might seek foreign investigation cooperation
 with a state that does have jurisdiction both as a method of furthering the interest of
 justice and encouraging the development of that state’s anti-corruption capabilities.156
 In other jurisdictions, however, the process for seeking international cooperation may
 be more formalized and might be initiated by separate officials before the matter is
 presented to the actual prosecutor.157
           Circumstances arise where an enforcement agency may decline to consider
 cooperation and assistance from a foreign enforcement agency if there are concerns
 about foreign agency integrity, corruption, or the ability to maintain the covert nature
 of investigation.158 Enforcers from some states might also decline to agree to a foreign
 anti-corruption investigation cooperation request if there were substantial concerns
 that the investigation was solely motivated by political considerations.159                               Some
 particularly non-friendly states may even decline a formal cooperation request based on
 treaty obligations seemingly to protect investigatory targets within their borders.160 In
 other instances, enforcers might decline to seek cooperation in an investigation from a
 jurisdiction that retains the death penalty for corruption offenses.161 In some states, like
 Brazil for example, cooperation is non-discretionary as a matter of law.162
           Additionally, there are limits to the extent of cooperation. For example, it would
 not be possible for U.S. enforcement agencies to enter into a joint investigation team - as
 France and the United Kingdom did in Airbus163 - because of U.S. concerns about discovery
153
    See, e.g., Telephone Interview with Patrick Pericak, Senior Managing Director, FTI Consulting (July 2, 2020)
    (Pericak is currently a Senior Managing Director at FTI Consulting).
154
    Id.
155
    See generally Telephone Interview with Ephraim Wernick, supra note 144.
156
    See, e.g., Telephone Interview with Patrick Pericak, supra note 153.
157
    But see Telephone Interview with Former Joint Head of Bribery and Corruption, United Kingdom’s Serious
    Fraud Office (“S.F.O.”) (July 8, 2020).
158
    See Telephone Interview with Ephraim Wernick, supra note 144.
159
    See generally Telephone Interview with Patrick Pericak, supra note 153.
160
    See Telephone Interview with Taavi Pern, supra note 145.
161
    See Telephone Interview with Former Joint Head of Bribery & Corruption, U.K.’s S.F.O., supra note 157.
162
    See, e.g., Telephone Interview with Marcello Miller, supra note 146.
163
    See, e.g., The label “joint investigation team” may somewhat exaggerate the level of cooperation entailed by
    this arrangement. Typically, although the investigation is run jointly, the enforcers from different countries
    maintain a certain level of independence. See also Telephone Interview with Former Joint Head of Bribery &
    Corruption, U.K.’s S.F.O., supra note 157.
                                                       170
 2022]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                     [Vol. 7:2


 obligations.164 Cooperation is informal, and enforcement agencies may work nearly in
 unison.165 In practice, given the complexities of differences in cultures and legal systems,
 the investigation cooperation process may be frustrating and bear little fruit.166



      4.2. ANTI‐CORRUPTION SETTLEMENTS

 In deciding whether to coordinate with foreign anti-corruption enforcers during the
 resolution phase, enforcement professionals report typically undertaking a nuanced
 evaluation intended to further their state’s investigation and the shared global
 anti-corruption capability. For instance, enforcers report delaying unilateral resolution
 in favor of the multi-state resolution as a matter of courtesy and professionalism to their
 foreign colleagues.167 In terms of U.S. enforcement decisions to jointly resolve a matter
 with a foreign enforcement agency, enforcers report that the decision might be
 influenced by an incentive to lend U.S. credibility to the foreign agency’s efforts.168
           Joint resolutions may cause complications for enforcement authorities.169 For
 instance, it appears there may have been tension between French and U.S. investigations
 into Airbus because of French efforts to assert their independence and demonstrate their
 new anti-corruption compliance capabilities under Sapin II and the general thinking that
 the United States often investigates non-American entities - like Airbus - to protect U.S.
 interests - like Boeing.170 Indeed, the French government was criticized domestically for
 working with the United States to resolve Airbus.171
           Generally, it would be natural for states cooperating in the investigation phase to
 discuss a joint resolution.172 It is nearly inconceivable that states would consider a joint
 resolution if they had not previously worked together on the investigation.173 Even then,
 however, an opportunity for a joint resolution might be diminished because of the

164
    See Interview with Ephraim Wernick, supra note 144.
165
    See Interview with Marcello Miller, supra note 146.
166
    See Interview with Patrick Pericak, supra note 153; see also Interview with Former Joint Head of Bribery &
    Corruption, U.K.’s S.F.O., supra note 157.
167
    See, e.g., Interview with Patrick Pericak, supra note 153; see also Interview with Former Joint Head of Bribery
    & Corruption, U.K.’s S.F.O., supra note 157.
168
    See Interview with Patrick Pericak, supra note 153; see also Interview with Former Joint Head of Bribery &
    Corruption, U.K.’s S.F.O., supra note 157.
169
     Id.
170
    See, e.g., Beioley, supra note 10; see also Robert Lea, US ‘Set to Join’ Airbus Corruption Inquiry, THE TIMES
    (Aug. 15, 2016), https://www.thetimes.co.uk/article/us-set-to-join-airbus-corruption-inquiry-5w0pjhfhh
    [https://perma.cc/74WB-QDHL].
171
    But see James Thomas, Airbus Settlement Proves France Can Go Toe-to-Toe with US Prosecutors,
    GLOB.       INVESTIGATIONS REV.     (Feb.     19, 2020), https://globalinvestigationsreview.com/news-and-
    features/investigators-guides/france/article/airbus-settlement-proves-france-can-go-toe-toe-us-
    prosecutors [https://perma.cc/P5MP-ZFNP].
172
    See generally Interview with Ephraim Wernick, supra note 144.
173
    See Interview with Marcello Miller, supra note 146.
                                                        171
  IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


 relationship between the states involved.174 Before deciding whether to pursue a joint
 resolution, enforcers from different countries would likely consider basic parameters of
 the resolution, including whether the different states involved are intent on resolving
 based on the same conduct and whether they wish to allocate charging conduct based on
 geography, as appears to have occurred in Airbus.175
           Enforcers report that after a decision is made to attempt to jointly resolve a
 matter with a foreign enforcement agency, typically the enforcement agency parties
 reach out to the corporate entity to suggest the joint resolution.176 From that point
 forward the enforcement agencies typically negotiate independently with the entity
 while meeting bilaterally to coordinate amongst themselves.177 The actual negotiations
 as to the specific terms of a joint settlement involving a foreign enforcement agency are
 known to be quite contentious at times - both in terms of the negotiations between the
 entity and the enforcement agencies, and amongst the enforcement agencies
 themselves.178
           Even if states cooperate during the investigatory phase, enforcement agencies
 may decline to seek a joint resolution with a state if that state does not have
 complementary enforcement mechanisms.179 For instance, a state that seeks to use
 D.P.A.s in the anti-corruption context may decline to consider a joint resolution with a
 state that does not provide for D.P.A.s.180
           In determining the apportionment of the total financial penalty, as well as
 whether to apply credits and to what extent, enforcers generally consider the “sweat
 equity” that each enforcement agency committed to the investigation, the level of
 evidence that each party developed, and the “interest” that each state has in the entity
 and the conduct.181 Moreover, negotiation concessions may be made to develop trust
 between enforcement agencies and encourage further anti-corruption capabilities.182
 There is no rigid financial formula applied to the apportionment, credit amount or
 priority of claim; rather, it is generally a matter of informal negotiation.183 At least for
 D.O.J. enforcers, however, the starting point of the negotiation is determined by
 reference to the total possible fine amount pursuant to U.S. Sentencing Guidelines.184
174
    Id.
175
    Id.
176
    Id.
177
    Id.
178
    Id.
179
    See Interview with Former Joint Head of Bribery & Corruption, U.K.’s S.F.O., supra note 157.
180
    Id.
181
    Id.; see also Interview with Ephraim Wernick, supra note 144; Interview with Patrick Pericak, supra note 153.
182
    See Interview with Marcello Miller, supra note 146; Interview with Patrick Pericak, supra note 153.
183
    See Interview with Marcello Miller, supra note 146.
184
    See Interview with Ephraim Wernick, supra note 144; Interview with Patrick Pericak, supra note 153; see also
    2018 Guidelines Manual Annotated, United States Sentencing Commission, §§ 2B4.1, 2C1.1, USSC (Nov. 1,
    2018), https://www.ussc.gov/guidelines.
                                                       172
 2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                   [Vol. 7:2


 This information is consistent with the data from the settlements explored.185 In some
 resolutions, it appears that the home state nexus is a strong apportionment factor. That
 does not, however, hold true throughout the entire data set.
           In reference to the challenges presented by carbon copy prosecutions, enforcers
 expressed both frustration and optimism.186                 Because of the reality of carbon copy
 prosecutions, enforcers are limited in the “carrot” they may offer to encourage
 settlement.187 Indeed, an enforcer may not offer an entity the traditional litigation
 settlement notions of “certainty” and “finality” because they cannot compel other states
 to join the settlement.188 Some enforcers have raised the idea of establishing a type of
 international process whereby states with potential claims would be compelled to either
 join settlements or bring claims within a reasonable time period.189 Nonetheless, at least
 from the U.S. perspective, prosecutors must include a description of enough relevant
 conduct to prove the allegations of the offense.190 In some cases, corporate counsel
 might actually prefer to expressly include covered conduct from other jurisdictions in
 the settlement documents to later bolster an argument against future prosecutions
 based on the theory of “double jeopardy”.191 Moreover, conduct included in settlement
 documents is a matter of negotiation with defense counsel and enforcement agencies
 may even agree to decline to require specific identifications of states.192
           Enforcers generally report that they may decline to move forward with an
 investigation or resolution when a prior settlement is considered fair and adequate and
 national interests are vindicated.193 In such instances, an agency might decline to even
 initiate an investigation.194         Alternatively, there are circumstances under which an
 enforcement agency may jointly cooperate with an agency from another state during the
 investigation phase and decline prosecution in favor of the other state’s prosecution
 efforts solely based on equitable considerations.195



185
    See discussion supra Section 3.9.
186
    See Interview with Ephraim Wernick, supra note 144; Interview with Taavi Pern, supra note 145; Interview
    with Marcello Miller, supra note 146; Interview with Patrick Pericak, supra note 153; Interview with Former
    Joint Head of Bribery & Corruption, U.K.’s S.F.O., supra note 158.
187
    See Interview with Ephraim Wernick, supra note 144; Interview with Taavi Pern, supra note 145; Interview
    with Marcello Miller, supra note 146; Interview with Patrick Pericak, supra note 153; Interview with Former
    Joint Head of Bribery & Corruption, U.K.’s S.F.O., supra note 157.
188
    See Interview with Former Joint Head of Bribery & Corruption, U.K.’s S.F.O., supra note 157.
189
    See Interview with Marcello Miller, supra note 146.
190
    See Interview with Ephraim Wernick, supra note 144.
191
    Id.
192
    See generally Interview with Patrick Pericak, supra note 153.
193
    Id.; Interview with Former Joint Head of Bribery & Corruption, U.K.’s S.F.O., supra note 157.
194
     Id.
195
     But see Interview with Taavi Pern, supra note 145.


                                                      173
  IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


 An enforcement agency might also decline enforcement against an entity if the agency is
 able to identify an individual wrongdoer that it wishes to prosecute.196 As such, under
 certain circumstances, an agency might consider the adequacy of enforcement against
 individuals when determining whether to proceed against a company.197 The reality,
 however, is that the prosecutions of individuals also typically makes it easier to prove a
 case against an entity under criminal agency principles.198 Prosecutors are bound to
 balance these two competing considerations, including when the individual may have
 been prosecuted by a foreign authority.199
            By making such decisions, enforcers intend to send a message to the public and
 the markets that they are not heavy-handed and prefer fair settlements with other
 enforcement agencies that will encourage self-reporting and cooperation.200 In this
 regard, enforcement agencies have given substantial thought to the possibility that
 declining enforcement may advance global anti-corruption capabilities.201 But in some
 nations, such as Brazil, declinations are not permitted as a matter of law.202 With very
 limited exceptions for the Brazilians, if a possible claim exists, it must be asserted.203




       5.      EMERGING GUIDING PRINCIPLES OF COOPERATION AND
       COORDINATION                     IN       TRANSNATIONAL       ANTI‐CORRUPTION
       INVESTIGATIONS AND RESOLUTIONS

 The foregoing information provides the basis for the identification of emerging guiding
 principles of cooperation and coordination in transnational anti-corruption
 investigations and resolutions. The following identified principles are not exclusive,
 exhaustive, or compulsory. Yet, their identification and description may be useful to
 better understand the incentives, motivations, and objectives of anti-corruption
 enforcement agencies as they seek to carry forth their duties and execute their authority
 with equity and discretion in the transnational anti-corruption environment.
 Importantly, the identification of these principles should take us further than the
 “equity” identified in the Anti-Piling on Policy, see supra section 1. These principles may

196
     See Interview with Ephraim Wernick, supra note 144.
197
    Id.
198
    Id.
199
    Id.
200
    See Interview with Patrick Pericak, supra note 153.
201
    Id.
202
    But see Interview with Marcello Miller, supra note 146.
203
    Id.


                                                        174
 2022]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                     [Vol. 7:2


 be particularly useful to companies and corporate counsel facing corruption issues or
 risking exposure as they attempt to chart a path forward.204 Indeed, identifying a set of
 guiding principles may lower costs of both enforcement and defensive representation,
 increase predictability, encourage voluntary self-disclosures, and, more generally, move
 us further toward an optimal level of transparency and deterrence.205



      5.1. ENFORCEMENT AGENCIES SEEK TO COORDINATE AND COOPERATE
      DURING THE INVESTIGATORY STAGE IF THE BENEFITS OF COOPERATION
      OUTWEIGH THE COSTS

 States with an interest in the anti-corruption movement seek to cooperate with other
 states in anti-corruption investigations to the extent that such cooperation advances
 their own anti-corruption efforts and comports with their general policy objectives. As
 the Soc. Gen., Airbus, VimpelCom, Telia, Petrobras, Odebrecht, Braskem, and Rolls-Royce
 matters illustrate, at least the following states have cooperated amongst themselves in
 recent anti-corruption investigations:                 the United States, the United Kingdom,
 Switzerland, France, Brazil, the Netherlands, Sweden, Switzerland, Latvia, Belgium,
 Ireland, Luxembourg, Austria, Cyprus, Norway, Isle of Man, Germany, Singapore, and
 Turkey.206 In at least one instance, as seen in the Airbus case, states have actually formed
 joint investigative teams.207 While the cases surveyed here demonstrate coordination is
 predominately between the United States and European authorities, coordination and
 cooperation in anti-corruption efforts is becoming more global.208                          As the enforcer
 interviews established, however, a decision to cooperate or to seek cooperation from
 foreign anti-corruption counterparts is generally based on a risk/benefit balancing
 test.209 “The benefits of assistance from foreign anti-corruption institutions should not
 be accessed without taking into account the costs - foreign assistance sometimes comes
 at a price”.210       As a result of this principle, companies facing anti-corruption legal

204
    See O.E.C.D., Anti-Corruption Ethics & Compliance Handbook for Business 10 (2013),
    https://www.O.E.C.D..org/corruption/Anti-CorruptionEthicsComplianceHandbook.pdf
    [https://perma.cc/HCK4-XSFN].
205
    See Oded, supra note 24, at 253–57.
206
    See discussion supra Section 3.
207
    See discussion supra Section 3.2.
208
     See Kevin Abikoff et al., F.C.P.A. & Anti-Bribery Alert, HUGHES, HUBBARD & REED L.L.P. 109 (Dec. 23, 2016),
    https://www.hugheshubbard.com/news/F.C.P.A.-anti-bribery-alert-fall-2016            [https://perma.cc/TM3Y-
    5TLC] (detailing cooperation provided the S.E.C. by the South African Financial Services Board and the
    African Development Bank’s Integrity and Anti-Corruption Department in relation to enforcement action
    against Hitachi).
209
     See discussion supra Section 4.1.
210
    Kevin E. Davis et al., Transnational Anticorruption Law in Action: Cases from Argentina and Brazil, 40 LAW Soc.
    INQUIRY 664, 693 (2015).


                                                        175
  IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


 exposure should assume enforcement agencies will actively seek cooperation and share
 information with their foreign counterparts.



      5.2.     ENFORCEMENT AGENCIES SEEK TO COORDINATE RESOLUTIONS
      WITH ENFORCEMENT AGENCIES FROM OTHER APPROPRIATE STATES IN
      RECOGNITION OF JURISDICTIONAL NEXUSES AND DEVELOPMENT OF
      GLOBAL ANTI‐CORRUPTION CAPABILITIES

 The Soc. Gen., Airbus, VimpelCom, Telia, Petrobras, Braskem, Odebrecht, and Rolls Royce
 matters evidence that in recent years enforcement agencies from different states
 frequently sought to coordinate anti-corruption resolutions amongst themselves.211
 These cases demonstrate that enforcement authorities will, through crediting or other
 means, recognize penalties paid to enforcement authorities from other states that have a
 jurisdictional nexus to the underlying bribing conduct and will decline to require a
 monitor if a another state with an arguably stronger jurisdictional nexus seeks to
 monitor future compliance.                 This deference is not only in recognition of the
 corresponding jurisdictional nexus,                 but also reflects an interest in building
 anti-corruption enforcement capacity. That enforcement agencies work to coordinate
 the timing of resolution, often with a state delaying resolution for years, confirms these
 principles and emphasizes that global anti-corruption enforcement cooperation is
 sincere and important, in both practice and messaging.
             Settlement coordination, however, is not always desired or possible and will only
 be considered if the subject enforcement agency determines it is in the best interest of
 the state and the greater global anti-corruption regime.212 As the enforcer interviews
 indicate, there is a substantial amount of discretion involved in this decision and it appears
 to be made on a case-by-case basis.213 Enforcement agencies, however, do seem willing to
 delay their own resolutions, as demonstrated in the Soc. Gen. matter, in favor of joint
 resolution.214
             Odebrecht, however, demonstrates that coordination amongst several states
 presents its own problems if other relevant states are not included in the resolution. As
 the Sanchez-Badins, two Brazilian lawyers, note:

211
    See discussion supra Section 3.
212
    See Stephen J. DeCosse et al., Anticorruption Regulation Survey, Jones Day 49 (Apr. 18, 2018),
    https://www.jonesday.com/en/insights/2018/04/anticorruption-regulation-survey-of-41-countries-2
    [https://perma.cc/68BV-K4W3].
213
     See Press Release, U.S. Dep’t of Just., Société Générale S.A. Agrees to Pay $860 Million in Criminal Penalties
    for Bribing Gaddafi-Era Libyan Officials and Manipulating L.I.B.O.R. Rate, supra note 81, §4.
214
     See de Senneville & Wajsbrot, supra note 90, ¶§6–7.


                                                        176
 2022]                            UNIVERSITY OF BOLOGNA LAW REVIEW                    [Vol. 7:2


             The recent increase of local anti-corruption investigations beyond
             the United States has increased the pressure to develop a more
             sophisticated system of cooperation among authorities from different
             jurisdictions. The experience of Odebrecht dramatically illustrates
             the underdevelopment of such transnational mechanisms of
             coordination. In the Car Wash case, investigations have unfolded in
             forty-nine other jurisdictions.215

 Indeed, the carbon copy litigation dilemma is a very real challenge to the principle. In
 this context, the recent U.S. Supreme Court decision in United States v.               Gamble
 [hereinafter Gamble] might be particularly important.216 As upheld in Gamble on June
 17, 2019, the United States maintains its recognition of the “Dual Sovereignty Rule”
 under which two similar offenses against two states are separate and distinct and
 therefore not subject to domestic prohibition against double jeopardy.217 First, there is
 some thought that the issues of fairness and equity in disputes implicating the laws of
 more than one state brought forth in Gamble may have informed the Anti-Piling-On
 Policy,218 issued while Gamble was pending before the Supreme Court. Second, Gamble’s
 holding may have also enlightened a defense to carbon copy litigation not previously
 considered on a substantial level. Indeed, it is now apparent that defense counsel may
 not always seek to include in a resolution all states with possible jurisdiction and
 potential claims.219 Some counsel may strategically exclude states with an intent to later
 mount a double jeopardy defense. Although the United States does not recognize double
 jeopardy in a dual sovereignty context,220 other states do. Accordingly, when reaching
 resolution with some, but not all, states that have both jurisdiction and national interest
 in the conduct, defense counsel may defend carbon copy enforcement actions on this
 theory of double jeopardy.             More generally, as a result of this emerging principle,
 companies and their counsel would be wise to consider all possible combinations of joint
 resolutions, and the risks and rewards of each, when considering negotiation of an
 anti-corruption settlement.             As the interviews demonstrate, companies should also
 consider the dynamics between the various enforcement agencies; although they may
 appear to have a united front, in practice there may be conflict and competition.



215
     See, e.g., Sanchez-Badin & Sanchez-Badin, supra note 3, at 329.
216
     See Gamble v. United States, 139 S. Ct. 1960, 1966 (2019).
217
    Id. at 1964.
218
    See discussion supra Section 2.
219
     See discussion supra Section 4.2.
220
     See Hock, supra note 16, at 325.


                                                        177
  IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


      5.3. ENFORCEMENT AGENCIES UTILIZE CREDITING OF PENALTIES AND
      PROFIT DISGORGEMENTS PAID TO OTHER STATES TO BOTH MAINTAIN
      DOMESTIC           STATUTORY             ENFORCEMENT                CONSISTENCY              AND        TO
      ENCOURAGE ANTI‐CORRUPTION CAPACITY BUILDING AND FUTURE
      VOLUNTARY SELF‐REPORTING BY OFFENDING ENTITIES

 Both Soc Gen and Airbus demonstrate that “crediting” is a method by which
 enforcement agencies may consistently prosecute domestic based statutorily penalties
 while at the same time employing deference to fashion a resolution that is appears fair,
 does not amount to double enforcement, encourages capacity building and future
 voluntary self-reporting.221 Petrobras, Odebrecht, and Braskem demonstrate that, even
 without crediting, states apportion total settlement amounts in multi-state settlement
 scenarios.222      Publicly announcing an agreed financial settlement amount based on
 domestic statutory requirements allows the enforcement authority to confirm the
 statutory authority, publicize that authority to the market and build a record of
 consistent application. Later crediting payments to other states, encourages capacity
 building in other states and encourages future voluntary reporting by publicizing to
 entities and individuals that they will be treated fairly. The interviews evidence that
 they credit and apportionment process is fairly ad hoc, and can reflect geographic nexus
 issues, as well as the amount of investigatory resources an enforcing state has dedicated
 to the investigation.
           Similarities may be drawn between crediting done in the anti-corruption context
 and crediting against tax liability by U.S. tax authorities for taxes paid to foreign tax
 authorities.223 Both types of crediting allow agencies to recognize potential financial
 assessments generally authorized under regulatory schemes while also allowing for
 concessions made in the interest of equity and fairness.224 While taxes are not punitive
 in nature, as anti-corruption penalties are, it is quite possible that the concept of
 anti-corruption crediting was “borrowed” from the U.S. tax law regime.225
           Apportionment deference in this context is also considered as a means of
 encouraging another state’s development of anti-corruption capabilities.226 In Airbus,
221
    See discussion supra Sections 3.2., 3.2. .
222
    See discussion supra Sections 3.5., 3.6. .
223
    See STAFF OF J. COMM. ON TAXATION, 114TH CONG., PRESENT LAW AND SELECTED POLICY ISSUE IN THE U.S. TAXATION
    OF CROSS-BORDER INCOME 3 (Comm. Print 2015).
224
    id. at 4.
225
    See United States Dep’t. of Justice, supra note 125.
226
    Commentators have argued that this type of deference be obligatory as established in “informal” agreements
    between members of the O.E.C.D. Convention. See Rachel Brewster & Christine Dryden, Building Multilateral
    Anticorruption Enforcement: Analogies Between International Trade and Anti-Bribery Law, 57 VA. J. INT’L L. 221,
    253–54 (2018).


                                                        178
 2022]                          UNIVERSITY OF BOLOGNA LAW REVIEW                                 [Vol. 7:2


 the United States expressly stated in a press release that its relatively lower settlement
 amount was in recognition of France and the United Kingdom’s “interest” in Airbus’s
 conduct and their “compelling equities” to vindicate their “respective interests”.227 In
 Airbus, this deference was likely based on the fact that Airbus is owned in part by the
 French government and much of the elicit conduct took place in, or was directed from,
 France and the United Kingdom.228 Moreover, Airbus employs eleven thousand in the
 United Kingdom and provides for thousands more jobs though its supply chain.229 Airbus
 employs nearly fifty thousand people in France.230                     In Airbus, France was also
 enthusiastic to demonstrate its competence with the new Sapin II law, which holds that
 deference by an established enforcement agency to a less established counterpart
 agency may be used to convey legitimacy and trust.231 These messages, in turn, may
 build the general enforcement capability of that agency.
           Of note, coordinated settlements are not a predicate for crediting in the
 transnational settlement context. For instance, in entering into a D.P.A. with S.B.M.
 Offshore in connection with bribes paid to foreign officials in Brazil, Angola, Equatorial
 Guinea, Kazakhstan, and Iraq, the D.O.J. agreed to credit S.B.M. Offshore for a $240
 million penalty the company already paid to the Dutch Public Prosecutor’s Office.232
           As a result of this emerging principle, companies and their counsel should keep a
 keen eye towards opportunities to facilitate the apportionment and credit process for
 enforcement agencies and look for occasions to reduce the overall financial exposure
 through crediting and enforcement deference.




227
    Discussion supra Section 3.2. .
228
    See Airbus in France, AIRBUS §2, https://www.airbus.com/company/worldwide-presence/france.html
    [https://perma.cc/C9GE-CUNB] (last visited Dec. 20, 2020).
229
     See Lea, supra note 170.
230
     See Airbus in France, supra note 228, §1.
231
     See discussion supra Section 3.2. .
232
      See United States Dep’t. Justice, Press Release No. 17-1348, SBM Offshore N.V. and United States-
    Based Subsidiary Resolve Foreign Corrupt Practices Act Case Involving Bribery in Five Countries §1 (Nov.
    29, 2017). https://www.justice.gov/opa/pr/sbm-offshore-nv-and-united-states-based-subsidiary-resolve-
    foreign-corrupt-practices-act-case [https://perma.cc/V4XG-GQQC].


                                                    179
  IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


      5.4.         ENFORCEMENT             AGENCIES         CONSIDER          “SIDE‐STEPPING”            TO
      ENCOURAGE ANTI‐CORRUPTION CAPACITY BUILDING AND FUTURE
      VOLUNTARY SELF‐REPORTING BY OFFENDING ENTITIES

 The term “side-stepping” is used to describe situations in which an enforcement agency
 declines to move forward with an enforcement action when the target already resolved
 charges based on the same facts with a different enforcement agency.233 Enforcement
 agencies employ side-stepping in both deference to their foreign counterparts to
 encourage development of legitimacy and capabilities, and also to encourage
 self-reporting.234 An entity faced with an anti-corruption concern will be more able to
 voluntarily report conduct to various enforcement agencies if it is confident that those
 agencies will not seek double-enforcement. The D.O.J.’s treatment of Guralp exemplifies
 side-stepping.235
             Until recently, the D.O.J.’s F.C.P.A. declinations were not made public, leaving the
 anti-corruption defense bar to speculate as to whether side-stepping decisions were
 actually made.236 That changed in November 2017.237 Now, D.O.J. declination letters are
 publicly available.238 D.O.J. officials have indicated that the Guralp declination reflects
 the Anti-Piling-On Policy.239 But as seen in the Statoil matter, enforcers may decline to
 side-step if they are unsatisfied with a prior settlement. Indeed, as seen in Statoil,
              [t]he United States has prosecuted companies after their home
              country governments have completed investigations and reached
              final settlements, in what appears to be an effort to register
              dissatisfaction with the resolution of the matter by home countries,
              either because the punishment was insufficient or the investigation
              was inadequately thorough.240
 As such, an enforcement decision not to side-step may be as much a signal to foreign
 enforcement counterparts as it is to the market.


233
    See Oded, supra note 24, at 229.
234
    Id.
235
    See discussion supra Section 3.7. .
236
    See Holtmeier et al., supra note 80, at 511–12.
237
    See Rod J. Rosenstein, Deputy Attorney General, U.S. Dep’t of Justice, Remarks at the 34th
    International Conference of the Foreign Corrupt Practices Act ¶§33, 36-39, 42 (Nov.                   29,
    2017), https://www.justice.gov/opa/speech/deputy-attorney-general-rosenstein-delivers-remarks-
    34th-international-conference-foreign [https://perma.cc/68SC-GKTU]; see also U.S. DEP’T OF
    JUSTICE, JUSTICE MANUAL CH. 9-47.120, F.C.P.A. CORPORATE ENFORCEMENT POLICY § 4 (Mar.              2019),
    https://www.justice.gov/criminal-fraud/file/838416/download [https://perma.cc/XTW3-2S5K].
238
     See Declinations, U.S. Dep’t of Just., (Aug. 6, 2020), https://www.justice.gov/criminal-fraud/corporate-
    enforcement-policy/declinations [https://perma.cc/VV5H-RL7H].
239
     See discussion supra Section 2. .
240
     Magnuson, supra note 77, at 414.
                                                     180
 2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                  [Vol. 7:2


 As a result of this emerging principle, companies and their counsel facing
 anti-corruption exposure should marshal facts, when possible, demonstrating that
 alternative enforcement actions—either already taken or underway - are just,
 reasonable, and adequate and that further enforcement actions would be imprudent.



      5.5. ENFORCEMENT AGENCIES CONSIDER DEFERENCE TO OTHER STATES
      FOR MONITORING PURPOSES TO ENCOURAGE ANTI‐CORRUPTION
      CAPACITY BUILDING

 Soc. Gen., Airbus, and Petrobras demonstrate that enforcement agencies, at least U.S.
 enforcement agencies, will defer to other states for compliance monitoring purposes
 when those states have the required capability.241 Independent compliance monitors in
 the F.C.P.A. context are frequently utilized by the D.O.J., as part of the terms of a D.P.A., to
 assure future compliance.242 Monitors are often an expensive and cumbersome burden
 for corporate entities. In Soc. Gen., Airbus, and Petrobras, the United States declined to
 appoint a monitor and expressly stated that it was declining such a requirement because
 the entity was going to be monitored by a foreign agency.243 It appears that such
 deference is exercised to signal legitimacy and anti-corruption capacity building in
 foreign counterparts.
           As a result of this emerging principle, companies and their counsel facing
 anti-corruption issues, particularly with U.S. enforcement agencies, might argue that
 governmental agencies in the “home” state are capable of monitoring anti-corruption
 compliance going forward. If successful, this argument may be significant, as under U.S.
 practice, compliance monitors are generally private attorneys.244                            Such forced
 engagement of private attorneys as compliance monitors may be exceedingly expensive
 for offending entities.




241
    See discussion supra Sections 3.1., 3.2., 3.5. .
242
    See Monitorships: List of Independent Compliance Monitors for Active Fraud Section Monitorships, U.S DEPT.
    OF JUSTICE (updated Sept. 22, 2022). https://www.justice.gov/criminal-fraud/strategy-policy-and-training-
    unit/monitorships https://perma.Monitorshipscc/9CUJ-UKXK.
243
    See discussion supra Sections 3.1., 3.2., 3.5. .
244
    Id.


                                                     181
IN SEARCH OF GUIDING PRINCIPLES OF TRANSNATIONAL ANTI-CORRUPTION INVESTIGATIONS


    CONCLUSION

As the global community continues to move forward with the worthwhile
anti-corruption effort, we will continue to see, likely with increasing frequency,
circumstances where multiple states work together to investigate and resolve
anti-corruption enforcement actions. In the absence of a formal collective institutional
anti-corruption resolution system, we will likely continue to see these investigations and
resolutions guided by the emerging principles identified herein. Although the present
system is not perfect, it appears to be in the competent and well-meaning hands of
anti-corruption enforcement agencies that seek justice, deterrence, and encouragement
of the growing shared global anti-corruption capability on equitable terms.




                                           182
