Resolving Foreign Bribery Cases with Non-Trial …...7 Country Resolution name Legal basis...

Resolving Foreign Bribery Cases with

Non-Trial Resolutions

OECD Data Collection Questionnaire Results

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This work is published under the responsibility of the Secretary-General of the OECD. The opinions expressed and arguments

employed herein do not necessarily reflect the official views of the OECD or of the governments of its member countries or those

of the European Union. This document and any map included herein are without prejudice to the status of or sovereignty over any

territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area.

© OECD 2019

Please cite this document as:

OECD (2019), Resolving Foreign Bribery Cases with Non-Trial Resolutions: OECD Data Collection Questionnaire Results www.oecd.org/corruption/Resolving-Foreign-Bribery-Cases-with-Non-Trial-Resolutions.htm.

http://www.oecd.org/corruption/Resolving-Foreign-Bribery-Cases-with-Non-Trial-Resolutions.htm

http://www.oecd.org/corruption/Resolving-Foreign-Bribery-Cases-with-Non-Trial-Resolutions.htm

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Introduction

This document contains the results of the OECD Data Collection Questionnaire. The tables

include data for the 27 countries that responded to the questionnaire and describes their

resolution system(s) available for natural or legal persons.

The answers have been aggregated into data tables. The data collection questionnaire

(comprised of 58 questions, including open-ended questions on a number of issues) collects

information on the resolution regimes in force, and how they have been applied to resolve

foreign bribery cases, with a view to comparing the relevant features of their non-trial

resolution systems.

Each table identifies as a “source” the question or questions that were used to generate the

data. On most questions, the thematic tables are split into natural and legal persons. Most

tables include a column with “comments” which have been limited to main references

and/or short explanations.

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Table of contents

Tables

Table 1. Resolutions and their legal basis (Legal Persons) ..................................................................... 6 Table 2. Resolutions and their legal basis (Natural Persons) .................................................................. 8 Table 3. Type of Resolution Proceedings (Legal Persons) ................................................................... 10 Table 4. Type of Resolutions proceedings (Natural Persons) ............................................................... 12 Table 5. Resolution procedures used in practice to resolve foreign bribery cases (Legal Persons) ..... 14 Table 6. Resolution procedures used in practice to resolve foreign bribery cases (Natural Persons) .. 16 Table 7. Existence of a resolution system in Countries that responded to the study ............................. 18 Table 8. Introduction of Resolution System since last WGB evaluation .............................................. 19 Table 9. Change or significant evolution in resolution regime since last WGB evaluation .................. 21 Table 10. In process of changing or introducing a resolution regime for the first time ........................ 23 Table 11. Consideration of availability of resolution procedures when determining the most

appropriate jurisdiction for prosecution ........................................................................................ 25 Table 12. Can the resolution result in a conviction? (Legal Persons) ................................................... 26 Table 13. Can the resolution result in a conviction? (Natural Persons) ................................................ 28 Table 14. Does the resolution result in a criminal or other record? (Legal Persons) ............................ 31 Table 15. Does the resolution result in a criminal or other record? (Natural Persons) ......................... 34 Table 16. Main forms of resolutions (Legal Persons) ........................................................................... 37 Table 17. Main forms of resolutions (Natural Persons) ........................................................................ 41 Table 18. When can a resolution be reached? Authority entitled to enter into a resolution/impose

terms and extent of judicial oversight (Legal Persons) ................................................................. 45 Table 19. When can a resolution be reached? Authority entitled to enter into a resolution/impose

terms and extent of judicial oversight (Natural Persons) .............................................................. 48 Table 20. Factors considered when deciding whether to use resolution procedure – pertaining to

accused (Legal Persons) ................................................................................................................ 51 Table 21. Factors considered when deciding whether to use resolution procedure – pertaining to

accused (Natural Persons) ............................................................................................................. 55 Table 22. Factors considered when deciding whether to use resolution procedure – other factors

(Legal Persons) .............................................................................................................................. 58 Table 23. Factors considered when deciding whether to use resolution procedure – other factors

(Natural Persons) ........................................................................................................................... 60 Table 24. Do countries encourage voluntary disclosure? (Legal and Natural Persons) ........................ 62 Table 25. Forms of co-operation required or considered before resolution (Legal Persons) ................ 63 Table 26. Forms of co-operation required or considered before resolution (Natural Persons) ............. 68 Table 27. If no resolution reached, can evidence provided be used to investigate or prove the

offence? (Legal Persons) ............................................................................................................... 74 Table 28. If no resolution reached, can evidence provided be used to investigate or prove the

offence? (Natural Persons) ............................................................................................................ 78 Table 29. Can a resolution be appealed or challenged? (Legal Persons) .............................................. 81

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Table 30. Can the resolution be appealed or challenged? (Natural Persons) ........................................ 87 Table 31. Incentives for an accused to enter into a resolution (Legal Persons) .................................... 94 Table 32. Incentives for an accused to enter into a resolution (Natural Persons).................................. 97 Table 33. Disincentives for an accused to enter into a resolution (Legal Persons) ............................. 100 Table 34. Disincentives for an accused to enter into a resolution (Natural Persons) .......................... 103 Table 35. Maximum and minimum sanctions under resolutions, plus reduction in sanctions

(Legal Persons) ............................................................................................................................ 106 Table 36. Maximum and minimum sanctions under resolutions, plus reduction in sanctions

(Natural Persons, prison) ............................................................................................................. 110 Table 37. Maximum and minimum sanctions under resolutions, plus reduction in sanctions

(Natural Persons, fine) ................................................................................................................. 114 Table 38. Terms that can be included in a resolution (Legal Persons - table 1 of 3) .......................... 118 Table 39. Terms that can be included in a resolution (Legal Persons - table 2 of 3) .......................... 120 Table 40. Terms that can be included in a resolution (Legal Persons - table 3 of 3) .......................... 123 Table 41. Terms that can be included in a resolution (Natural Persons - table 1 of 2)........................ 125 Table 42. Terms that can be included in a resolution (Natural Persons - table 2 of 2)........................ 128 Table 43. Differences with trial resolutions (Legal Persons) .............................................................. 133 Table 44. Differences with trial resolutions (Natural Persons) ........................................................... 135 Table 45. Factors affecting determination of sanctions or terms of resolution (Legal Persons) ......... 137 Table 46. Factors affecting determination of sanction or terms of resolution (Natural Persons) ........ 140 Table 47. Fine and confiscation (Legal Persons) ................................................................................ 143 Table 48. Fine and confiscation (Natural Persons).............................................................................. 149 Table 49. Do resolutions include a secrecy/muzzle clause? (Legal Persons) ...................................... 152 Table 50. Do resolutions include a secrecy/muzzle clause? (Natural Persons) ................................... 155 Table 51. Appointment, powers and obligations of Compliance monitor ........................................... 158 Table 52. Must the resolution be approved by a Court or other authority? (Legal Persons) ............... 163 Table 53. Must the resolution be approved by a Court or other authority? (Natural Persons) ............ 166 Table 54. Extent of judicial oversight over resolution’s terms and conditions (Legal Persons) ......... 169 Table 55. Extent of judicial oversight over resolution’s terms and conditions (Natural Persons) ...... 172 Table 56. If a resolution is reviewed, what grounds could lead a court to invalidate or refuse to

validate it (Legal Persons) ........................................................................................................... 175 Table 57. If a resolution is reviewed, what grounds could lead a court to invalidate or refuse to

validate it (Natural Persons) ........................................................................................................ 179 Table 58. Consequences of court’s refusal to validate a resolution (Legal Persons) .......................... 184 Table 59. Consequences of court’s refusal to validate a resolution (Natural Persons) ....................... 189 Table 60. Authority determining compliance with terms of resolution (Legal Persons) .................... 193 Table 61. Authority determining compliance with terms of resolution (Natural Persons).................. 197 Table 62. If the terms of a resolution are not properly respected, can it be repealed? (Legal Persons)201 Table 63. If the terms of a resolution are not properly respected, can it be repealed? (Natural

Persons) ....................................................................................................................................... 206 Table 64. Public availability of resolutions (Legal Persons) ............................................................... 210 Table 65. Public availability of resolutions (Natural Persons) ............................................................ 214 Table 66. What terms / information of the resolution are published? (Legal Persons) ....................... 219 Table 67. What terms/information of the resolution are published? (Natural Persons) ...................... 222 Table 68. Impact of resolution on other parties (Legal Persons) ......................................................... 225 Table 69. Impact of resolution on other parties (Natural Persons) ...................................................... 228 Table 70. Application of double jeopardy/ne bis in idem to domestic resolutions .............................. 231 Table 71. Application of double jeopardy/ne bis in idem to foreign resolutions ................................ 233 Table 72. Impact of resolutions on decision to grant mutual legal assistance ..................................... 234

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Table 1. Resolutions and their legal basis (Legal Persons)

Country Resolution name Legal basis

Argentina Penalty exemption (Exención de pena) Corporate Liability Law 27.401, art. 9

Argentina Effective cooperation agreement (Acuerdo de colaboración eficaz) Corporate Liability Law 27.401, art. 16

Australia Plea Agreement Prosecution Policy of the Commonwealth,para. 6.14-6.21

Austria Diversion Federal Statute on Responsibility of Entities for Criminal Offences (VbVG - Verbandsverantwortlichkeitsgesetz), para.19

Austria Withdrawal from prosecution due to cooperation with the Public Prosecutor's Office

CCP, para. 209a (see CCP para. 209a(7), including specific provisions applicable to LP - VbVG, para. 19 para. 1)

Brazil Leniency Agreement [CGU/AGU] Law 12,846/ 2013

Brazil Leniency agreement [Prosecution Service] Systemic interpretation of the legislation and internal prosecutorial regulations

Canada Plea Agreement PPSC Deskbook guidelines

Canada Remediation Agreement Criminal Code, Part XXII.1

Chile Conditional suspension of proceedings CCP, art. 237-240; Law 20 393, art. 25

Chile Expedited procedure/Summary procedure CCP, art. 406-415; Law 20 393, art. 27

Czech Republic Agreement on guilt and punishment (AGP) CCP, sections 175a, 175b, 314o-314s; Act No. 418/2011. on Criminal Liability of Legal Entities (CLLE), section 1

Estonia Termination for lack of public interest Code of Criminal Procedure (CCP), section 202

Estonia Termination for lack of proportionality Code of Criminal Procedure (CCP), section 203

Estonia Termination for cooperation CCP section 205

Estonia Alternative proceedings Code of Criminal Procedure (CCP), section 233

Estonia Summary proceedings Code of Criminal Procedure (CCP), section 251

Estonia Expedited procedure Code of Criminal Procedure (CCP), section 256-1

France Public Interest Judicial Agreement (Convention Judiciaire d’Intérêt Public - CJIP) Law No. 2016-1691, art. 22 (9 Dec. 2016), CCP, art. 41-1-2

France Guilty Plea (Comparution sur Reconnaissance Préalable de Culpabilité - CRPC)

Law n°2004-204 of 9 March 2004; Law n°2011-1862 13 of December 2011; Law n°2013-1117 of 6 December 2013, CCP, art. 495-7 to 495-16

Germany Administrative Resolution Administrative Offence Act (section 30 and 130 OWiG)

Germany Forfeiture Order Administrative Offence Act (section 29a OWiG)

Israel Plea Agreement Case law and State Attorney Guidelines. Penal Code, 1977, 71A(b) and 72(b) and Probation Ordinance, 1969, section 1

Italy Patteggiamento Code of Criminal Procedure (CCP), art. 444-448; Legislative decree (LD) 231/2001, art. 63

Japan Agreement Procedure Code of Criminal Procedure (CCP), art. 350-2 – 350-15

Latvia Prosecutor's penal order Criminal Procedure Law (CPL), section 420 and Chapter 39

Latvia Plea agreement CPL, Chapter 39

Mexico Conditional Suspension of the Process

Articles 183, 184, section II, 191 to 200, 208, 209 and 210 of the National Code of Criminal Procedures and the «Action Protocol of Alternate Solutions » of the PGR. This procedure would only apply to foreign bribery when the amount of the gift, the assets or the promise do not exceed of the equivalent to five hundred times the daily value of the Unit of Measurement and Update at the moment of committing the crime, or when said amount is not measurable.

Mexico Summary Procedure

National Code of Criminal Procedures, art. 183, 185, 201 to 207, 413, 418 and 467, and Agreement A/017/15 of the Attorney General of the Republic, published in the Official Gazette of the Federation (DOF, by its accronym in spanish) on February 23, 2015

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Country Resolution name Legal basis

Netherlands Transaction Criminal Code, art. 74, and the Directive on Large and Special Transactions

Netherlands Punitive Order Criminal Procedure Code, art. 257a, and Aanwijzing OM-afdoening guidelines

Netherlands Conditional dismissal Criminal Procedure Code, art. 167 and 242

Norway Optional Penalty Writ Criminal Procedure Act (CPA), Chapter 20

Slovenia Agreement on the Confession of Guilt CCP, art. 161a

South Africa Plea Agreement Criminal Procedure Act (CPA), section 105 A

South Africa Consent Orders Companies Act No. 71 of 2008, section 173

Spain Conformidad CCP (Código de Legislación Procesal- Ley De Enjuiciamiento Criminal), art. 787(8)

Switzerland Accelerated Proceedings/ Simplified Procedure Swiss Criminal Procedure Code (SCPC), art. 358-362

Switzerland Summary punishment order Swiss Criminal Procedure Code (SCPC), art. 352-357

United Kingdom Deferred Prosecution Agreement Crime and Courts Act 2013, Schedule 17; Deferred Prosecution Agreement Code of Practice (DPA CoP Crime and Courts Act 2013V1 11.2.14)

United Kingdom Administrative order Financial Services and Markets Act 2000, section 206

United Kingdom Plea Agreement Code for Crown Prosecutors 2013 Chapter 9, Attorney General’s Guidelines on plea discussions in cases of serious or complex fraud 2009

United Kingdom Consent Order for Civil Recovery Proceeds of Crime Act 2002, section 276 United Kingdom (Scotland) Civil Resolution Guidance on the Approach of the Crown Office and Procurator Fiscal Service to

Reporting by Business of Bribery Offences

United States Plea Agreement Federal Rules of Criminal Procedure, Rule 11; U.S. Attorney's Manual (USAM) 9-27.400 - 9.27.450 and 9-28.1300

United States DPA [DOJ] USAM Principles of Federal Prosecution of Business Organisations

United States NPA [DOJ] USAM 9-27.600 – 9-27.650

United States Declination with disgorgement of profits [DOJ] Principles of Federal Prosecution of Business Organisations/ section 9-47.120 FCPA Corporate Enforcement Policy in U.S. Attorney's Manual

United States Civil resolutions [SEC] 17 CFR para. 201.240 governs SEC resolution agreements

United States Administrative resolutions [SEC] 17 CFR para. 201.240 governs SEC resolution agreements

United States DPA [SEC] Division of Enforcement SEC Enforcement Manual, section 6.2.2

United States NPA [SEC] Division of Enforcement SEC Enforcement Manual, section 6.2.3

Source: Data extracted from cross-country database, compiled using questionnaire responses and other sources of

information.

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Table 2. Resolutions and their legal basis (Natural Persons)

Country Resolution name [NP] Legal basis [NP] Argentina Abbreviated Procedure (Juicio Abreviado) CCP, art. 431 bis Argentina Cooperation Agreement Repentance Law 27.304, 2016 Australia Plea Agreement Prosecution Policy of the Commonwealth ( para. 6.14-6.21) Austria Diversion CCP, para. 198-209

Austria Withdrawal from prosecution due to cooperation with the Public Prosecutor's Office CCP, para. 209

Brazil Cooperation Agreement (Acordo de Colaboração Premiada) Law 12850/2013 (Organized Crime Law), section 1, art. 4-7

Brazil Conditional Suspension of the Procedure Law 9.099 Canada Alternative Measures Criminal Code, section 717 Canada Plea Agreement PPSC Deskbook guidelines Chile Conditional suspension of proceedings CCP, art. 237-240 Chile Expedited procedure/Summary procedure CCP, art. 406-415

Colombia Declination with Confiscation (art. 324 Code of Criminal Procedure)

Constitution: art. 250 and art. 251(4), Law 906 of 2004, CCP art. 321-330, Law 1098 of 2006: art. 174, Law 1312 of 2009, Law 1474 of 2011: art. 13 and 40, Resolution 4155 of 2016- Office of the Attorney General

Colombia Preliminary agreement (Preacuerdo) Law 906 of 2004, CCP art. 348-354 Costa Rica Declination with Confiscation Code of Criminal Procedure, art. 22-24 Costa Rica Suspension of Proceedings Code of Criminal Procedure, art. 25 Costa Rica Shortened proceeding Code of Criminal Procedure, art. 373-375 Czech Republic Agreement on guilt and punishment (AGP) CCP, sections 175a, 175b, 314o-314s of Estonia Termination for lack of public interest CCP, section 202 Estonia Termination for lack of proportionality CCP, section 203 Estonia Termination for cooperation CCP, section 205 Estonia Alternative proceedings CCP, section 233 Estonia Summary proceedings CCP, section 251 Estonia Expedited procedure CCP, section 256-1

Finland Plea Agreement Criminal Investigation Act (805/2011), Chapter 3 section 10(a) (672/2014) Criminal Code Chapter 6 section 8(a) (673/2014), Criminal Procedure Act (689/1997) Chapter 1 section 10 and 10(a) and Chapter 5(b)


Law n°2004-204 of 9 March 2004; Law n°2011-1862 13 of December 2011; Law n°2013-1117 of 6 December 2013; CCP, art. 495-7 to 495-16

Germany section 153a CCP, section 153a. Germany Negotiated agreement CCP, section 257c Country Resolution name [NP] Legal basis [NP] Germany Penal Order CCP, section 407 CCP Hungary Resolution about the admission of guilt CPA, art. 407-411 Hungary Possibility of avoidance of criminal liability CPC, art. 192 (new CPC art. 219)

Israel Plea agreement Case law and State Attorney guidelines. Penal Code, 1977, sections 71A(b) and 72(b) and Probation Ordinance, 1969, section 1

Italy Patteggiamento CCP, art. 444-448 Japan Agreement Procedure Code of Criminal Procedure (CCP), art. 350-2 – 350-15 Latvia Prosecutor's penal order Criminal Procedure Law (CPL), section 420 Latvia Plea agreement CPL, Chapter 38 (Phase 2 Report by the WGB, para 162)

Mexico Conditional Suspension of the Process Article 183, 184, section II, 191 to 200 of the National Code of Criminal Procedures and the «Action Protocol of Alternate Solutions » of the PGR.


Code of Criminal Procedures, art. 183, 185, 201 to 207, 413, 418 and 467, and Agreement A/017/15 of the Attorney General of the Republic, published in the Official Gazette of the Federation (DOF, by its accronym in spanish) on February 23, 2015

Netherlands Transaction Criminal Code, art. 74, and Directive on Large and Special Transactions Netherlands Punitive Order Criminal Procedure Code , art. 257a, and Aanwijzing OM-afdoening guidelines Netherlands Conditional dismissal Criminal Procedure Code, art. 167 and 242

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Country Resolution name [NP] Legal basis [NP] Norway Optional Penalty Writ CPA, Chapter 20 Slovenia Agreement on the Confession of Guilt CCP, art. 161a South Africa Plea agreement Criminal Procedure Act (CPA), section 105

Spain Conformidad CCP (Código de Legislación Procesal- Ley De Enjuiciamiento Criminal), art. 787

Switzerland Accelerated Proceedings/ Simplified Procedure Swiss Criminal Procedure Code (SCPC), art. 358-362 Switzerland Summary punishment order SCPC, art. 352-357

United Kingdom Plea Agreement Code for Crown Prosecutors 2013 Chapter 9, Attorney General’s Guidelines on plea discussions in cases of serious or complex fraud 2009

United Kingdom Consent Order for Civil Recovery The Proceeds of Crime Act 2002, section 276

United States Plea Agreement Rule 11 of the Federal Rules of Criminal Procedure; USAM 9-27.400 - 9.27.450 and 9-28.1300

United States DPA [DOJ] Principles of Prosecution for individuals apply to pre-trial diversion (Phase 3 para. 113)

United States NPA [DOJ] USAM 9-27.600 – 9-27.650 United States Civil resolutions [SEC] 17 CFR para. 201.240 governs SEC [resolution] agreements United States Administrative resolutions [SEC] 17 CFR para. 201.240 governs SEC [resolution] agreements United States DPA [SEC] Division of Enforcement SEC Enforcement Manual, section 6.2.2 United States NPA [SEC] Division of Enforcement SEC Enforcement Manual, section 6.2.3

Source: Data extracted from cross-country database, compiled using questionnaire responses and other sources of

information.

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Table 3. Type of Resolution Proceedings (Legal Persons)

Country Resolution name (LP) Criminal proceedings

Civil proceedings Administrative proceedings

Other non-criminal proceedings

Argentina Penalty Exemption (Exención de Pena) Yes No No No

Argentina Effective Agreement Procedure (Acuerdo de Colaboración Eficaz) Yes No No No

Australia Plea Agreement Yes No No No

Austria Diversion Yes No No No

Austria Withdrawal from Prosecution due to Cooperation with the Public Prosecutor's Office

Yes No No No

Brazil Leniency Agreement [CGU/AGU] No Yes Yes No

Brazil Leniency Agreement [Prosecution Service] No Yes No No

Canada Plea Agreement Yes No No No

Canada Remediation Agreement Yes No No No

Chile Conditional Suspension of Proceedings Yes No No No

Chile Expedited Procedure/Summary Procedure Yes No No No

Czech Republic Agreement on Guilt and Punishment (AGP) Yes No No No

Estonia Termination for lack of public interest Yes No No No

Estonia Termination for lack of proportionality Yes No No No

Estonia Termination for cooperation Yes No No No

Estonia Alternative proceedings Yes No No No

Estonia Summary proceedings Yes No No No

Estonia Expedited procedure Yes No No No

France Public Interest Judicial Agreement (Convention Judiciaire d’Intérêt Public - CJIP)

Yes No No No


Yes No No No

Germany Administrative Resolution No No Yes No

Germany Forfeiture Order No No Yes No

Israel Plea Agreement Yes No No No

Italy Patteggiamento No No Yes No

Japan Agreement Procedure Yes No No No

Latvia Prosecutor's Penal Order Yes No No No

Latvia Plea Agreement Yes No No No

Mexico Conditional Suspension of the Process Yes No No No

Mexico Summary Procedure Yes No No No

Netherlands Transaction Yes No No No

Netherlands Punitive Order Yes No No No

Netherlands Conditional dismissal Yes No No No

Norway Optional Penalty Writ Yes No No No

Slovenia Agreement on the Confession of Guilt Yes Yes No No

South Africa Plea Agreement Yes Yes No Yes

South Africa Consent Orders No No Yes No

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Country Resolution name (LP) Criminal proceedings

Civil proceedings Administrative proceedings


Spain Conformidad Yes No No No

Switzerland Accelerated Proceedings/ Simplified Procedure Yes No No No

Switzerland Summary Punishment Order Yes No No No

United Kingdom Deferred Prosecution Agreement Yes No No No

United Kingdom Plea Agreement Yes No No No

United Kingdom Consent Order for Civil Recovery No Yes No No United Kingdom (Scotland) Civil Resolution No Yes No No

United Kingdom Administrative Order No No Yes No

United States Plea Agreement Yes No No No

United States DPA [DOJ] Yes No No No

United States NPA [DOJ] Yes No No No

United States Declination with Disgorgement of Profits [DOJ] Yes No No No

United States Civil Resolutions [SEC] No Yes No No

United States Administrative Resolutions [SEC] No No Yes No

United States DPA [SEC] No No Yes No

United States NPA [SEC] No No Yes No

Source: Answers to Question 7a.

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Table 4. Type of Resolutions proceedings (Natural Persons)

Country Resolution name Criminal Civil proceedings Administrative proceedings


Argentina Abbreviated Procedure (Juicio Abreviado) Yes No No No

Argentina Cooperation Agreement Yes No No No

Australia Plea Agreement Yes No No No

Austria Diversion Yes No No No


Yes No No No

Brazil Cooperation Agreement (Acordo de colaboração premiada) Yes No No No

Brazil Conditional Suspension of the Procedure Yes No No No

Canada Alternative Measures Yes No No No

Canada Plea Agreement Yes No No No

Chile Conditional Suspension of Proceedings Yes No No No

Chile Expedited Procedure/Summary Procedure Yes No No No

Colombia Declination with confiscation (Code of Criminal Procedure art. 324) Yes No No No

Colombia Preliminary agreement (Preacuerdo) Yes No No No

Costa Rica Declination with Confiscation Yes No No No

Costa Rica Suspension of Proceedings Yes No No No

Costa Rica Shortened proceeding Yes No No No

Czech Republic Agreement on Guilt and Punishment (AGP) Yes No No No

Estonia Termination for lack of public interest Yes No No No

Estonia Termination for lack of proportionality Yes No No No

Estonia Termination for cooperation Yes No No No

Estonia Alternative proceedings Yes No No No

Estonia Summary proceedings Yes No No No

Estonia Expedited procedure Yes No No No

Finland Plea Agreement Yes No No No


Yes No No No

Germany Section 153a Yes No No No

Germany Negotiated Agreement Yes No No No

Germany Penal Order Yes No No No

Hungary Resolution about the Admission of Guilt Yes No No No

Hungary Possibility of Avoidance of criminal liability Yes No No No

Israel Plea Agreement Yes No No No

Italy Patteggiamento Yes No No No

Japan Agreement Procedure Yes No No No

Latvia Prosecutor's Penal Order Yes No No No

Latvia Plea Agreement Yes No No No

Mexico Conditional Suspension of the Process Yes No No No

Mexico Summary Procedure Yes No No No

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Country Resolution name Criminal Civil proceedings Administrative proceedings


Netherlands Transaction Yes No No No

Netherlands Punitive Order Yes No No No

Netherlands Conditional dismissal Yes No No No

Norway Optional Penalty Writ Yes No No No

Slovenia Agreement on the Confession of Guilt Yes No No No

South Africa Plea Agreement Yes No No Yes

Spain Conformidad Yes No No No

Switzerland Accelerated Proceedings/ Simplified Procedure Yes No No No

Switzerland Summary Punishment Order Yes No No No

United Kingdom Plea Agreement Yes No No No

United Kingdom Consent Order for Civil Recovery No Yes No No

United States Plea Agreement Yes No No No

United States DPA [DOJ] Yes No No No

United States NPA [DOJ] Yes No No No

United States Civil Resolutions [SEC] No Yes No No

United States Administrative Resolutions [SEC] No No Yes No

United States DPA [SEC] No No Yes No

United States NPA [SEC] No No Yes No

Source: Answers to Question 7a

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Table 5. Resolution procedures used in practice to resolve foreign bribery cases

(Legal Persons)

Country Resolution name (LP)

Has this form of resolution been used in practice to resolve a foreign bribery

case? (Yes/No)

Times used [see footnote]

Argentina Penalty Exemption (Exención de Pena) No

Argentina Effective Cooperation Agreement (Acuerdo de Colaboración Eficaz) No

Australia Plea Agreement Unknown

Austria Diversion Unknown


Unknown

Brazil Leniency Agreement [CGU/AGU] Yes 1

Brazil Leniency Agreement [Prosecution Service] Yes 1

Canada Plea Agreement Yes 3

Canada Remedial Agreement No

Chile Conditional Suspension of Proceedings Yes 1

Chile Expedited Procedure/Summary Procedure No

Czech Republic Agreement on Guilt and Punishment (AGP) No

Estonia Termination for lack of public interest No

Estonia Termination for lack of proportionality No

Estonia Termination for cooperation Unknown

Estonia Alternative proceedings No

Estonia Summary proceedings No

Estonia Expedited procedure No


Yes 1


No

Germany Administrative Resolution Yes 6

Germany Forfeiture Order Yes 11

Israel Plea Agreement Yes 1

Italy Patteggiamento Yes 6

Japan Agreement Procedure No

Latvia Prosecutor's Penal Order No

Latvia Plea Agreement No

Mexico Conditional Suspension of the Process No

Mexico Summary Procedure No

Netherlands Transaction Yes 7

Netherlands Punitive Order No

Netherlands Conditional dismissal No

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Country Resolution name (LP)

Has this form of resolution been used in practice to resolve a foreign bribery

case? (Yes/No)

Times used [see footnote]

Norway Optional Penalty Writ Yes 4

Slovenia Agreement on the Confession of Guilt No

South Africa Plea Agreement No

South Africa Consent Orders No

Spain Conformidad No

Switzerland Accelerated Proceedings/ Simplified Procedure Yes 1

Switzerland Summary Punishment Order Yes 7

United Kingdom Deferred Prosecution Agreement Yes 3

United Kingdom Plea Agreement Yes 3

United Kingdom Consent Order for Civil Recovery Yes 3

United Kingdom Administrative Order Yes 2

United Kingdom (Scotland) Civil Resolution No

United States Plea Agreement Yes 45

United States DPA [DOJ] Yes 45

United States NPA [DOJ] Yes 26

United States Declination with Disgorgement of Profits [DOJ] Yes 9

United States Civil Resolutions [SEC] Yes 47

United States Administrative Resolutions [SEC] Yes 31

United States DPA [SEC] Yes 2

United States NPA [SEC] Yes 1

Source: Database of foreign bribery cases maintained by the OECD

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Table 6. Resolution procedures used in practice to resolve foreign bribery cases

(Natural Persons)

Country Resolution name Has this form of resolution been

used in practice to resolve a foreign bribery case? (Yes/No)

Times Used [See footnote]

Argentina Abbreviated Procedure (Juicio Abreviado) No

Argentina Cooperation Agreement No

Australia Plea Agreement Yes 3

Austria Diversion Unknown


Unknown

Brazil Cooperation Agreement (Acordo de colaboração premiada) Yes 1

Brazil Conditional Suspension of the Procedure No

Canada Alternative Measures No

Canada Plea Agreement No

Chile Conditional Suspension of Proceedings Yes 1

Chile Expedited Procedure/Summary Procedure No

Colombia Declination with confiscation (Code of Criminal Procedure art. 324) No

Colombia Preliminary agreement (Preacuerdo) No

Costa Rica Declination with Confiscation Unknown

Costa Rica Suspension of Proceedings Unknown

Costa Rica Shortened proceeding Unknown

Czech Republic Agreement on Guilt and Punishment (AGP) No



Estonia Termination for cooperation No

Estonia Alternative proceedings No

Estonia Summary proceedings No

Estonia Expedited procedure No

Finland Plea Agreement No


Yes 1

Germany Section 153a Yes 222

Germany Negotiated Agreement Yes 2

Germany Penal Order Yes 34

Hungary Resolution about Admission of Guilt No

Hungary Possibility of Avoidance of criminal liability No

Israel Plea Agreement No

Italy Patteggiamento Yes 14


Latvia Prosecutor's Penal Order No


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Country Resolution name Has this form of resolution been

used in practice to resolve a foreign bribery case? (Yes/No)

Times Used [See footnote]

Mexico Conditional Suspension of the Process No


Netherlands Transaction Yes



Norway Optional Penalty Writ Yes 1

Slovenia Agreement on the Confession of Guilt No


Spain Conformidad Yes 2

Switzerland Accelerated Proceedings/ Simplified Procedure Yes 1

Switzerland Summary Punishment Order Yes 7

United Kingdom Plea Agreement Yes 11

United Kingdom Consent Order for Civil Recovery Unknown

United States Plea Agreement Yes 73

United States DPA [DOJ] No

United States NPA [DOJ] No

United States Civil Resolutions [SEC] Yes 39

United States Administrative Resolutions [SEC] Yes 6

United States DPA [SEC] No

United States NPA [SEC] No

Source: Database of foreign bribery cases maintained by the OECD

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Table 7. Existence of a resolution system in Countries that responded to the study

Country Is it possible for a LP to resolve a foreign bribery case (Yes/ No)

Is it possible for a NP to resolve a foreign bribery case (Yes/ No)

Argentina Yes Yes Australia Yes Yes Austria Yes Yes Brazil Yes Yes Bulgaria No No

Canada Yes Yes Chile Yes Yes Colombia Yes Yes Costa Rica No Yes Czech Republic Yes Yes Denmark No No

Estonia Yes Yes Finland No Yes France Yes Yes Germany Yes Yes Hungary No Yes Ireland No No

Israel Yes Yes Italy Yes Yes Japan Yes Yes Latvia Yes Yes Lithuania No No Mexico Yes Yes

Netherlands Yes Yes Norway Yes Yes Portugal No No Slovenia Yes Yes South Africa Yes Yes Spain Yes Yes

Switzerland Yes Yes United Kingdom Yes Yes United States Yes Yes

Source: Answers to Question 4

│ 19

Table 8. Introduction of Resolution System since last WGB evaluation

Country Introduction of a resolution regime for a NP (Yes/No)

Introduction of a resolution regime for a LP (Yes/No) Additional information

Argentina No Yes LP: The Corporate Liability Law 27.401 (entry into force on 03/01/2018) established two resolution procedures: Penalty Exemption (Exención de Pena) and Effective Cooperation Agreement (Acuerdo de Colaboración Eficaz).

Australia No No

Austria No No

Brazil No No

Canada No Yes LP: Budget Implementation Act, 2018, No. 1 (S.C. 2018, c. 12), s. 404, introducing an amendment to the Criminal Code, established one resolution procedure: Remediation Agreement.

Chile No No

Colombia No Yes LP: Law 1778 (entry into force on 02/02/2016) established one resolution procedure: Benefits due to Collaboration (Beneficios por Colaboración).

Costa Rica No No

Czech Republic No No

Estonia No No

Finland No No

France No Yes LP: Law 2016-1691 (entry into force on 01/06/2017) established one resolution procededure: Public Interest Judicial Agreement (Convention Judiciaire d’Intérêt Public).

Germany No No

Hungary No No

Israel No No

Italy No No

Japan Yes Yes LP and NP: Act no. 54 of 2016 (Act to Amend Parts of Criminal Procedure Code and Other Acts) established one resolution procedure: Agreement Procedure

(証拠収集等への協力及び訴追に関する合意) Latvia No No

20 │

Country Introduction of a resolution regime for a NP (Yes/No)

Introduction of a resolution regime for a LP (Yes/No) Additional information

Mexico No No

Netherlands No No

Norway No No

Slovenia No No

South Africa No No

Spain No No

Switzerland No No

United Kingdom No No

United States No No

Sorce: Answers to Question 1

│ 21

Table 9. Change or significant evolution in resolution regime since last WGB evaluation

Country Change or evolution in resolution regime for NP (Yes/No)

Change or evolution in resolution regime for LP (Yes/No) Additional information

Argentina No No

Australia No No

Austria Yes Yes

"Certain amendments were made in CCP para. 209a (Withdrawal from prosecution due to cooperation with the Public Prosecutor's Office) concerning "crown witnesses" (e.g. the suspect has to be informed at an early stage if the provisions for receiving the status of a "crown witness" apply, the suspect can challenge the decision of the public prosecution's office if receiving the "crown-witness"-status is being denied. CCP para. 209a can also be applied to legal persons (see CCP para. 209(7))."

Brazil No Yes

LP: "In previous reports, reference was made to Law 12,846/2013, which created the legal framework for leniency agreements for LP. This law makes express reference to the Office of the Comptroller-General (CGU) as the body responsible for enforcing foreign bribery, including signing agreements. However, we have had some significant evolvements, which strengthens the anti-corruption system. The CGU has been working and singing leniency agreements, related both to national and/or transnational cases, with the Office of the Attorney General. Leniency agreements with LPs have also been handled by the Prosecution Service (and specially the Federal Prosecution Service), under a systemic interpretation of the legislation. These leniency agreements are governed by internal prosecutorial regulations."

Canada No No Chile No No

Colombia No No

Costa Rica No No

Czech Republic No No

Estonia No No

Finland No No

France No No

Germany No No

Hungary No No

Israel No No

Italy No No

22 │

Country Change or evolution in resolution regime for NP (Yes/No)

Change or evolution in resolution regime for LP (Yes/No) Additional information

Japan No No

Latvia Yes Yes

"With the amendments to the Criminal Law (section 36) of 10.03.2016 which entered into force on 07.04.2016 a public prosecutor can draw up a penal order also in cases of a serious crime for which a punishment of deprivation of liberty for a period of up to five years is provided for (before the amendments it was possible only in cases of a criminal violation or a less serious crime)."

Mexico No No

Netherlands No No

Norway No No

Slovenia No No

South Africa No No

Spain No No

Switzerland Yes Yes "Since 2011 Switzerland has a new united Swiss Criminal Procedure Code (SCPC). Before then, every canton had its criminal procedure law."

United Kingdom No No

United States No Yes

Incorporation of FCPA Corporate Enforcement Policy into the U.S. Attorney’s Manual concerning (1) Credit for Voluntary Self-Disclosure, Full Cooperation, and Timely and Appropriate Remediation in FCPA Matters and (2) Limited Credit for Full Cooperation and Timely and Appropriate Remediation in FCPA Matters Without Voluntary Self-Disclosure (U.S. Attorney’s Manual, section 9-47.120, available at https://www.justice.gov/criminal-fraud/file/838416/download).


│ 23

Table 10. In process of changing or introducing a resolution regime for the first time

Country In process of changing or introducing resolution regime for NP? (Yes/No)

In process of changing or introducing resolution regime for LP? (Yes/No) Additional information

Argentina No No LP: Argentina introduced resolution procedures for LP for the first time in early 2018 (see table Q1)

Australia No Yes LP: "The Crimes Legislation Amendment (Combatting Corporate Crime) Bill was introduced to the Parliament on 6 December 2017 (Attachment A). If passed, the bill would introduce a Commonwealth Deferred Prosecution Agreement (DPA) scheme. Under the proposed DPA scheme, a prosecutor would have the option to invite a corporation that has engaged in serious corporate crime to negotiate an agreement to comply with a range of specified conditions. These conditions may typically require a corporation to admit to agreed facts, pay a financial penalty and implement or improve its compliance program. If the corporation fulfils its obligations under the DPA, it will not be prosecuted for the offences specified in the DPA (these offences may include foreign bribery offences)."

Austria No No Brazil No No Canada Yes Yes “The Canadian government is proposing, in Bill C-86, to amend section 715.42 of the

Criminal Code to address the publication/non-publication of a remediation agreement, court orders, decisions and the judicial reasons by ensuring that any initial decision not to publish, and any order on the application to review, and the reasons, if any, be published; expressly providing that a non-publication decision could include a condition related to the duration of non-publication, and permitting anyone to bring an application to ask the court to reconsider a non-publication decision.” (Answer to Study Questionnaire)

Chile No No Colombia No No LP: Colombia introduced a resolution procedure for LP for the first time in 2016 (see table

Q1) Costa Rica No Yes Costa Rica reports that Bill No. 20.547 envisions a "comprehensive reform" of the procedure

on the liability of legal persons, including specific changes intended to address Working Group on Bribery concerns identified in the Phase 1 evaluation.

Czech Republic No No Estonia No No Finland No No France No No LP: France introduced a resolution procedure for LP for the first time in 2016 (see table Q1) Germany No Yes LP: “According to the coalition agreement the liability of legal persons for criminal offences

24 │

Country In process of changing or introducing resolution regime for NP? (Yes/No)

In process of changing or introducing resolution regime for LP? (Yes/No) Additional information

(including corruption) will be reformed. The reform will possibly include new rules regarding resolutions involving legal persons.”

Hungary Yes No NP: "The Act XC of 2017 (coming into force from 1 July 2018) will introduce the settlement about the admission of guilt (para. 407-411). (A somewhat similar institution, 'waiving the right to the trial' is already in force, the new legislation practically builds on it and extends its scope.)" It also seems that there has been a substantial change concerning the articles relating to the termination of the investigation proceedings.

Israel No Yes LP: "The current law allows certain prosecutors to sign a type of NPA in a narrow scope of cases. The current regime applies to natural and legal persons in the same way. The Ministry of Justice is considering creating a separate and specific NPA regime that will apply to legal persons. The purpose would be to broaden the scope of cases where a NPA can be signed between a prosecutor and a legal person. However, this process is only in its preliminary stages and therefore we cannot answer the following questions in reference to future changes. Since foreign bribery is a felony in Israeli law, the current NPA regime does not allow for the signing of a NPA in the case of foreign bribery."

Italy No No

Japan No No Latvia No No Mexico No No Netherlands Yes Yes LP and NP: (Transaction and Punitive Order): "At the moment the Ministry of Justice is in

the process of reviewing our regime. One of the issues we are looking at is a possible change in procedure."

Norway No No

Slovenia No No South Africa No No Spain No No Switzerland No No Switzerland reports that, as of November 2018, the SCPC is currently under revision. Thus,

amendements to the resolution regime can not be excluded. United Kingdom No No United States No No


│ 25

Table 11. Consideration of availability of resolution procedures when determining the most

appropriate jurisdiction for prosecution

Country Is availability of resolutions in the different countries concerned a criterion considered when determining most appropriate jurisdiction

for prosecution (art. 4.3 of the Convention)? (Yes/No/Unknown)

Argentina Unknown

Australia Yes

Austria Yes

Brazil No

Canada Yes

Chile Unknown

Colombia No

Costa Rica Yes

Czech Republic Yes Estonia Unknown

Finland Unknown France Yes Germany Unknown Hungary Yes

Israel Yes

Italy No

Japan Unknown

Latvia No

Mexico No Netherlands Yes

Norway No

Slovenia Yes

South Africa Yes

Spain Unknown

Switzerland No

United Kingdom Yes

United States Yes


26 │

Table 12. Can the resolution result in a conviction? (Legal Persons)

Country Resolution name Can the resolution result in a conviction? (Yes/No)

Argentina Penalty Exemption (Exención de Pena) Yes

Argentina Effective Cooperation Agreement (Acuerdo de Colaboración Eficaz) Yes

Australia Plea Agreement Yes Austria Diversion No

Austria Withdrawal from Prosecution due to Cooperation with the Public Prosecutor's Office No

Brazil Leniency Agreement [CGU/AGU] No Brazil Leniency Agreement [Prosecution Service] No Canada Plea Agreement Yes Canada Remediation Agreement No Chile Conditional Suspension of Proceedings No Chile Expedited Procedure/Summary Procedure Yes Czech Republic Agreement on Guilt and Punishment (AGP) Yes Estonia Termination for lack of public interest No


Estonia Termination for cooperation No Estonia Alternative proceedings Yes Estonia Summary proceedings Yes Estonia Expedited procedure Yes France Public Interest Judicial Agreement (Convention Judiciaire d’Intérêt Public - CJIP) No France Guilty Plea (Comparution sur Reconnaissance Préalable de Culpabilité - CRPC) Yes Germany Administrative Resolution No Germany Forfeiture Order No

Israel Plea Agreement Yes Italy Patteggiamento Yes Japan Agreement Procedure Yes Latvia Prosecutor's Penal Order Yes Latvia Plea Agreement Yes

│ 27

Country Resolution name Can the resolution result in a conviction? (Yes/No)

Mexico Conditional Suspension of the Process No Mexico Summary Procedure Yes Netherlands Transaction No Netherlands Punitive Order No Netherlands Conditional dismissal No

Norway Optional Penalty Writ Yes Slovenia Agreement on the Confession of Guilt Yes South Africa Plea Agreement Yes


Spain Conformidad Yes Switzerland Accelerated Proceedings/ Simplified Procedure Yes Switzerland Summary Punishment Order Yes United Kingdom Deferred Prosecution Agreement No United Kingdom Plea Agreement Yes

United Kingdom Consent Order for Civil Recovery No

United Kingdom Administrative Order No


United States Plea Agreement Yes


United States NPA [DOJ] No United States Declination with Disgorgement [DOJ] No United States Civil Resolutions [SEC] No United States Administrative Resolutions [SEC] No United States DPA [SEC] No


Source: Answers to Question 7b

28 │

Table 13. Can the resolution result in a conviction? (Natural Persons)

Country Resolution name Can resolution result in a conviction? (Yes/No)

Additional information

Argentina Abbreviated Procedure (Juicio Abreviado) Yes Argentina Cooperation Agreement Yes Australia Plea Agreement Yes Austria Diversion No Austria Withdrawal from Prosecution due to

Cooperation with the Public Prosecutor's Office No

Brazil Cooperation Agreement (Acordo de colaboração premiada)

Yes

Brazil Conditional Suspension of the Procedure No Canada Alternative Measures No Canada Plea Agreement Yes Chile Conditional Suspension of Proceedings No

Chile Expedited Procedure/Summary Procedure Yes Colombia Declination with confiscation (Code of Criminal

Procedure art. 324) No

Colombia Preliminary agreement (Preacuerdo) Yes Costa Rica Declination with Confiscation Yes

Costa Rica Suspension of Proceedings No

Costa Rica Shortened proceeding No

Czech Republic Agreement on Guilt and Punishment (AGP) Yes Estonia Termination for lack of public interest No Estonia Termination for lack of proportionality No Estonia Termination for cooperation No Estonia Alternative proceedings Yes Estonia Summary proceedings Yes Estonia Expedited procedure Yes Finland Plea Agreement Yes France Guilty Plea (Comparution sur Reconnaissance Yes

│ 29



Préalable de Culpabilité - CRPC) Germany Section 153a No Germany Negotiated Agreement Yes Germany Penal Order Yes Hungary Resolution about the Admission of Guilt Yes Hungary Possibility of Avoidance of criminal liability No Israel Plea Agreement Yes Italy Patteggiamento Yes Japan Agreement Procedure Yes Latvia Prosecutor's Penal Order Yes Latvia Plea Agreement Yes Mexico Conditional Suspension of the Process No “The effect of compliance of the suspension

conditions is the extinction of the criminal action and the dismissal of the procedure.” (Answers to the Study Questionnarie)

Mexico Summary Procedure Yes “It is a procedure in which the jurisdictional body issues the conviction, without going through an oral trial.” (Answers to the Study Questionnarie)

Netherlands Transaction No Netherlands Punitive Order No Netherlands Conditional dismissal No Norway Optional Penalty Writ Yes Slovenia Agreement on the Confession of Guilt Yes South Africa Plea Agreement Yes Spain Conformidad Yes Switzerland Accelerated Proceedings/ Simplified Procedure Yes Switzerland Summary Punishment Order Yes

United Kingdom Plea Agreement Yes United Kingdom Consent Order for Civil Recovery No United States Plea Agreement Yes

30 │



United States DPA [DOJ] No United States NPA [DOJ] No United States Civil Resolutions [SEC] No United States Administrative Resolutions [SEC] No United States DPA [SEC] No United States NPA [SEC] No

Source: Answers to Question 7b.

│ 31

Table 14. Does the resolution result in a criminal or other record? (Legal Persons)

Country Resolution name (LP) Does the resolution result in a

criminal or other record? (Yes/No/Depends)



Argentina Effective Cooperation Agreement (Acuerdo de Colaboración Eficaz) Yes

Australia Plea Agreement Depends

Depends: "A prosecution based on negotiated charge will not necessarily result in a conviction. Whilst this is unlikely in foreign bribery cases, a discharge or recognizance without conviction under section 19B of the Crimes Act 1914 is available."

Austria Diversion No


No

Brazil Leniency Agreement [CGU/AGU] Yes

Brazil Leniency Agreement [Prosecution Service] No

Canada Plea Agreement Yes

Canada Remediation Agreement No

Chile Conditional Suspension of Proceedings No

Chile Expedited Procedure/Summary Procedure Yes

Czech Republic Agreement on Guilt and Punishment (AGP) Yes




Estonia Alternative proceedings Yes

Estonia Summary proceedings Yes

Estonia Expedited procedure Yes


No

32 │





Yes

Germany Administrative Resolution No

Germany Forfeiture Order No

Israel Plea Agreement Depends Depends: "A resolution can include an agreement that the defendant will be found guilty but not convicted (discharged), in which case it will not have a criminal record."

Italy Patteggiamento Yes

Japan Agreement Procedure Depends Depends: “(…) Favorable treatment by a prosecutor include to suspend or terminate indictment, to indict for lesser offense and to seeking lighter sentence.” (Answer to Study Questionnaire – Question 8.c.)

Latvia Prosecutor's Penal Order Yes

Latvia Plea Agreement Yes

Mexico Conditional Suspension of the Process Yes “The register of precedents of alterante solutions and anticipated termination forms (consulted before accesing to another benefit.)” (Answers to the Study Questionnaire)

Mexico Summary Procedure Yes “The conviction with wich the procedure ends has the same legal effects, but the accused receives some benefits, such as the application of a lower penalty” (Answers to the Study Questionnaire)


Netherlands Punitive Order Yes

Netherlands Conditional dismissal Yes

Norway Optional Penalty Writ Yes

Slovenia Agreement on the Confession of Guilt Yes

South Africa Plea Agreement Yes


Spain Conformidad Yes

Switzerland Accelerated Proceedings/ Simplified Procedure No There is no criminal record for LP. Phase 4 para. 100.

│ 33




Switzerland Summary Punishment Order No There is no criminal record for LP. Phase 4 para. 100.

United Kingdom Deferred Prosecution Agreement No

United Kingdom Plea Agreement Yes





United States DPA [DOJ] No "A company’s successful completion of a DPA is often not treated as a criminal conviction by debarment authorities."


United States Declination with Disgorgement of Profits [DOJ] No

United States Civil Resolutions [SEC] No

United States Administrative Resolutions [SEC] No



Source: Answers to Question 7c

34 │

Table 15. Does the resolution result in a criminal or other record? (Natural Persons)

Country Resolution name (NP) Does the resolution result in a criminal or other record? (Yes/No/It depends) Additional information

Argentina Abbreviated Procedure (Juicio Abreviado) Yes

Argentina Cooperation Agreement Yes

Australia Plea Agreement Depends

"A prosecution based on negotiated charge will not necessarily result in a conviction. Whilst this is unlikely in foreign bribery cases, a discharge or recognizance without conviction under section 19B of the Crimes Act 1914 is available."



No

Brazil Cooperation Agreement (Acordo de colaboração premiada) Yes

Brazil Conditional Suspension of the Procedure No

Canada Alternative Measures No


Chile Conditional Suspension of Proceedings No


Colombia Declination with confiscation (Code of Criminal Procedure art. 324) No

Colombia Preliminary agreement (Preacuerdo) Yes

Costa Rica Declination with Confiscation Yes







│ 35





Finland Plea Agreement Yes


Yes

Germany Section 153a No

Germany Negotiated Agreement Yes

Germany Penal Order Yes

Hungary Resolution about the Admission of Guilt Yes

Hungary Possibility of Avoidance of criminal liability No

Israel Plea Agreement Depends "A resolution can include an agreement that the defendant will be found guilty but not convicted (discharged), in which case it will not have a criminal record."

Italy Patteggiamento Depends "When the final penalty is up to 2 years of imprisonment […] settlements do not appear in criminal records."

Japan Agreement Procedure Depends Depends: “(…) Favorable treatment by a prosecutor include to suspend or terminate indictment, to indict for lesser offense and to seeking lighter sentence.” (Answer to Study Questionnaire – Question 8.c.)



Mexico Conditional Suspension of the Process Yes “The register of precedents of alterante solutions and anticipated termination forms (consulted before accesing to another benefit.)” (Answers to the Study Questionnaire)

Mexico Summary Procedure Yes “The conviction with wich the procedure ends has the same legal effects, but the accused receives some benefits, such as the application of a lower penalty.” (Answers to the Study Questionnaire)


Netherlands Punitive Order Yes

36 │







Switzerland Accelerated Proceedings/ Simplified Procedure Yes

Switzerland Summary Punishment Order Yes







United States Administrative Resolutions [SEC] No



Source: Answers to Question 7c

│ 37

Table 16. Main forms of resolutions (Legal Persons)

Form 1: Termination of an investigation without prosecution or other enforcement action, subject to the fulfilment of specific conditions (e.g., Declination with Disgorgement; Non Prosecution Agreement)

Form 2: Suspension, deferral or withdrawal of a prosecution or other enforcement action, subject to the fulfilment of specific conditions (e.g., Deferred Prosecution Agreement; Conditional Dismissal)

Form 3: Resolution resulting in a decision imposing sanctions without criminal conviction (e.g., Administrative and Civil Resolutions)

Form 4: Resolution with conviction or tantamount to a conviction, but not amounting to a admission or finding of guilt (e.g., Patteggiamento; Swiss Summary Punishment Order)

Form 5: Resolution that amounts to a conviction and entails an admission of guilt (e.g., Plea Agreement or equivalent) Mixed: Resolutions that can take multiple forms or lead to different outcomes (e.g., Leniency Agreement)

Country Resolution name Form 1 Form 2 Form 3 Form 4 Form 5 Mixed Additional information

Argentina Penalty Exemption (Exención de Pena)

Yes

Argentina Effective Cooperation Agreement (Acuerdo de Colaboración Eficaz)

Yes

Yes Yes

Australia Plea Agreement

Yes

Austria Diversion Yes Yes

Yes

Austria Withdrawal from Prosecution due to Cooperation with the Public

Prosecutor's Office

Yes Yes

Yes

Brazil Leniency Agreement [CGU/AGU] Yes Yes Yes

Yes Brazil has no criminal liability for legal persons, only civil-administrative liability. There is no discussion of guilt (as intent) regarding legal

persons in Brazil

Brazil Leniency Agreement [Prosecution Service]

Yes Yes Yes

Yes


Canada Remediation Agreement Yes

Chile Conditional Suspension of Proceedings

Yes

Chile Expedited Procedure/Summary Procedure

Yes

Czech Republic Agreement on Guilt and Punishment (AGP)

Yes

Estonia Termination for lack of public interest

Yes

38 │


Estonia Termination for lack of proportionality Yes

Estonia

Termination for cooperation Yes

Estonia Alternative proceedings

Yes

Estonia Summary proceedings

Yes

Estonia Expedited procedure

Yes

France Public Interest Judicial Agreement (Convention Judiciaire d’Intérêt

Public - CJIP)

Yes Yes

Yes

France Guilty Plea (Comparution sur Reconnaissance Préalable de

Culpabilité - CRPC)

Yes

Germany Administrative Resolution Yes “A legal person can be held liable and sanctioned by the prosecution without a conviction. This is based on the right to be heard and applies

when corporate liability under section 30 OWiG is triggered by the administrative offence of violation of supervisory duties by a senior

manager (130 OWiG).” (Answer to Study Questionnaire)

Germany Forfeiture Order Yes “Pursuant to section 29a OWiG, the prosecutors can decide to impose a forfeiture order against a legal person based on the administrative

offence of violation of supervisory duties by a senior manager (section 130 OWiG) without having to establish corporate liability.” This is also based on the right to be heard enshrined in Germany’s Basic Law. “It enables the authorities to engage in a specific communication with the representatives of the LPs, which the companies deem as a de facto

resolution.” (Answer to Study Questionnaire)

Israel Plea Agreement

Yes

Italy Patteggiamento

Yes

Italy’s Patteggiamento is equated to conviction, but without admission of guilt.(Answer to Study Questionnaire)

Japan Agreement Procedure Yes Yes Yes “(…) a public prosecutor may reach agreement with a suspect/defendant where the suspect/defendant cooperates to the

prosecutor with regard to the case against the third person in return for the favorable treatment by the prosecutor with regard to the case

against the suspect/defendant. (…) Favorable treatment by a prosecutor include to suspend or terminate indictment, to indict for

│ 39


lesser offense and to seeking lighter sentence.” (Answer to Study Questionnaire)

Latvia Prosecutor's Penal Order

Yes

This procedure requires an admission of guilt. (Information shared by Latvia)

Latvia Plea Agreement

Yes

Latvia clarifies that this procedure requires an admission of guilt (response to Cross-Country tables)


Yes

“The conditional suspension of the process, at the request of the

accused or the Public Prosecutor previous agreement with the latter, will proceed in the cases in which the following requirements are met:

I. That the order of lining to process of the accused has been issued for a crime whose arithmetic mean of the prison sanction does not exceed of five years; II. That there is no grounded opposition of the victim and offended; III. That two years have elapsed since the compliance or five years since the non-compliance of a previous conditional suspension.

The stated in the section III of the present article, will not proceed when the accused has been absolved in said procedure.” (Answers to the

Study Questionnaire)


Yes

“”The following requirements must be met: I. That the Public Prosecutor requests the procedure, II. That the victim or offended does not oppose, III. That the accused: a) Recognizes to be duly informed of his/her right to an oral trial and of the extent of the summary procedure b) Expressly

waives the oral trial c) Accepts the applications of the summary procedure d) Admits his/her

responsibility for the crime for which he/she is accused e) Accepts to be sanctioned according to the means of conviction exposed by the Public Prosecutor when making the accusation.”

(Answers to the Study Questionnaire)

Netherlands Transaction Yes Yes

Yes

Netherlands Punitive Order

Yes

“The punitive order does not require an admission of guilt. It is imposed

and amounts to a finding of guilt. If someone does not agree he can appeal the order in court” (Answer to the Study Questionnaire)

Netherlands Conditional dismissal

Yes

"A Conditional Dismissal can only be applied in cases were further prosecution is technically feasible but where such further prosecution is

not expedient. The defendant does not agree to the Conditional Dismissal itself but either adheres to it or not."

Norway Optional Penalty Writ

Yes

40 │


Slovenia Agreement on the Confession of Guilt

Yes

South Africa Plea Agreement

Yes

South Africa Consent Orders Yes

Spain Conformidad

Yes

Switzerland Accelerated Proceedings/ Simplified Proceedings

Yes

“The accused may request the public prosecutor to conduct accelerated

proceedings provided the accused admits the maters essential to the legal appraisal of the case and recognises, if only in principle, the civil

claims.” (Art. 358 SCPC)

Switzerland Summary Punishment Order

Yes

The accused must have admitted the facts or these have been satisfactorily established (Art. 352 SCPC.)

United Kingdom Deferred Prosecution Agreement

Yes

United Kingdom Plea Agreement

Yes

United Kingdom Consent Order for Civil Recovery Yes

United Kingdom Administrative Order

Yes

United Kingdom (Scotland)

Civil Resolution

Yes

United States Plea Agreement

Yes

United States DPA [DOJ]

Yes

United States NPA [DOJ] Yes

United States Declination with Disgorgement of Profits [DOJ]

Yes

United States Civil Resolutions [SEC]

Yes

United States Administrative Resolutions [SEC]

Yes

United States DPA [SEC]

Yes

United States NPA [SEC] Yes

Source: Answers to Question 8a-c

│ 41

Table 17. Main forms of resolutions (Natural Persons)

Form 1: Termination of an investigation without prosecution or other enforcement action, subject to the fulfilment of specific conditions (e.g., Declination with Disgorgement; Non Prosecution Agreement)

Form 2: Suspension, deferral or withdrawal of a prosecution or other enforcement action, subject to the fulfilment of specific conditions (e.g., Deferred Prosecution Agreement; Conditional Dismissal)

Form 3: Resolution resulting in a decision imposing sanctions without criminal conviction (e.g., Administrative and Civil Resolutions)

Form 4: Resolution with conviction or tantamount to a conviction, but not amounting to a admission or finding of guilt (e.g., Patteggiamento; Swiss Summary Punishment Order)

Form 5: Resolution that amounts to a conviction and entails an admission of guilt (e.g., Plea Agreement or equivalent)

Mixed: Resolutions that can take multiple forms or lead to different outcomes (e.g., Leniency Agreement)


Argentina Abbreviated Procedure (Juicio

Abreviado) Yes

Argentina Cooperation Agreement Yes Yes Yes

Australia Plea Agreement Yes

Austria Diversion Yes Yes Yes Diversion is not contingent on an admission of guilt and can include waiving

prosecution for a probationary period. § 203 CCP


Yes Yes Yes This procedure requires an admission of facts but not a formal admission of guilt. It

can defer or delay prosecution.

Brazil Cooperation Agreement (Acordo de colaboração

premiada) Yes Yes Yes

Brazil Conditional Suspension of the

Procedure Yes

Canada Alternative Measures Yes Yes Yes


Chile Conditional Suspension of

Proceedings Yes

42 │


Chile Expedited

Procedure/Summary Procedure

Yes

Colombia Declination with confiscation (art. 324 Code of Criminal

Procedure) Yes

Colombia Preliminary agreement

(Preacuerdo) Yes

Costa Rica Declination with confiscation (art 22-24 Code of Criminal

Procedure) Yes

Costa Rica Suspension of proceedings

(art 25 of the Code of Criminal Procedure)

Yes

Costa Rica Shortened proceeding Yes

Czech Republic Agreement on Guilt and

Punishment (AGP) Yes

Estonia Termination for lack of public

interest Yes

Estonia Termination for lack of

proportionality Yes

Estonia Termination for cooperation Yes




Finland Plea Agreement Yes

France Guilty Plea (Comparution sur Reconnaissance Préalable de

Culpabilité - CRPC)

Yes

Germany Section 153a Yes Yes Yes


│ 43



Hungary Resolution about the Admission of Guilt

Yes

Hungary Possibility of Avoidance of

criminal liability Yes

Israel Plea Agreement Yes

Italy Patteggiamento Yes Italy’s Patteggiamento is equated to conviction, but without admission of guilt.(Answer to Study Questionnaire)

Japan Agreement Procedure Yes Yes Yes

“(…) a public prosecutor may reach agreement with a suspect/defendant where the suspect/defendant cooperates to the prosecutor with regard to the case against the

third person in return for the favorable treatment by the prosecutor with regard to the case against the suspect/defendant. (…) Favorable treatment by a prosecutor

include to suspend or terminate indictment, to indict for lesser offense and to seeking lighter sentence.” (Answer to Study Questionnaire)



Mexico Conditional Suspension of the

Process Yes

“The conditional suspension of the process, at the request of the accused or the Public Prosecutor previous agreement with the latter, will proceed in the cases in

which the following requirements are met: I. That the order of lining to process of the accused has been issued for a crime whose arithmetic mean of the prison sanction does not exceed of five years; II.

That there is no grounded opposition of the victim and offended; III. That two years have elapsed since the compliance or five years since the non-compliance of a

previous conditional suspension. The stated in the section III of the present article, will not proceed when the accused has been absolved in said procedure.”

(Answers to the Study Questionnaire)

Mexico Summary Procedure Yes

“The following requirements must be met: I. That the Public Prosecutor requests the procedure; II. That the victim or offended

does not oppose; III. That the accused: a) Recognizes to be duly informed of his/her right to an oral trial and of the extent of the summary procedure; b) Expressly waives the oral trial; c) Accepts the applications of the summary procedure; d) Admits his/her responsibility for the crime for which he/she is accused; e) Accepts to be sanctioned according to the means of conviction

exposed by the Public Prosecutor when making the accusation.” (Answers to the Study Questionnaire)

44 │


Netherlands Transaction Yes Yes Yes

Netherlands Punitive Order Yes “The punitive order does not require an admission of guilt. It is imposed and

amounts to a finding of guilt. If someone does not agree he can appeal the order in court” (Answer to the Study Questionnaire)


"A Conditional Dismissal can only be applied in cases were further prosecution is technically feasible but where such further prosecution is not expedient. The

defendant does not agree to the Conditional Dismissal itself but either adheres to it or not. "


Slovenia Agreement on the Confession

of Guilt Yes



Switzerland Accelerated Proceedings/

Simplified Proceedings Yes

Switzerland Summary Punishment Order Yes The accused must have admitted the facts or these have been satisfactorily established (Art. 352 SCPC.)


United Kingdom Consent Order for Civil

Recovery Yes


United States DPA [DOJ] Yes


United States Civil Resolutions [SEC] Yes

United States Administrative Resolutions

[SEC] Yes

United States DPA [SEC] Yes


Source: Answers to Question 8a-c

│ 45

Table 18. When can a resolution be reached? Authority entitled to enter into a resolution/impose terms and extent of judicial

oversight (Legal Persons)

Country Resolution name

When can resolution be reached?

(Before or After indictment / Either /

Other)

Authority entitled to enter into a resolution What role does court have in decision to

resort to resolution?: (Substantive /

Procedural / None / Depends)

Entity having authority to determine sanctions / terms imposed on the accused

The prosecution

An administrative agency

Other

The Prosecution

Administrative agency acting as law enforcement

body

The court

A government agency acting as

administrative court

Argentina Penalty Exemption (Exención de Pena) After Yes No No Depends Yes No Yes No


After Yes No No Depends Yes No Yes No

Australia Plea Agreement Either Yes No No None No No Yes No Austria Diversion Either Yes No Yes Depends Yes No Yes No

Austria

Withdrawal from Prosecution due to Cooperation with the Public Prosecutor's Office

Either Yes No Yes Depends Yes No Yes No

Brazil Leniency Agreement [CGU/AGU] Either No Yes Yes None No Yes No No

Brazil Leniency Agreement [Prosecution Service] Other Yes No No Depends Yes No No No

Canada Plea Agreement Either Yes No No None Yes No Yes No Canada Remediation Agreement Either Yes No No Sustantive Yes No No No

Chile Conditional Suspension of Proceedings After Yes No No Substantive Yes No No No

Chile Expedited Procedure / Summary Procedure After Yes No No Substantive Yes No No No

Czech Republic Agreement on Guilt and Punishment (AGP) Either Yes No No None Yes No Yes No

Estonia Termination for lack of public interest Either Yes No Yes Substantive Yes No Yes No

Estonia Termination for lack of proportionality Either Yes No Yes Substantive Yes No Yes No

46 │




Other)





The prosecution


Other

The Prosecution


body

The court



Estonia Termination for cooperation Either Yes No No None Yes No No No

Estonia Alternative proceedings Either Yes No Yes Substantive Yes No Yes No Estonia Summary proceedings Either Yes No Yes Substantive Yes No Yes No Estonia Expedited procedure Either Yes No Yes Substantive Yes No Yes No

France

Public Interest Judicial Agreement (Convention Judiciaire d’Intérêt Public - CJIP)

Either Yes No No Substantive Yes No No No

France

Guilty Plea (Comparution sur Reconnaissance Préalable de Culpabilité - CRPC)

Either Yes No No None Yes No No No

Germany Administrative Resolution Other Yes Yes No None Yes Yes Yes No

Germany Forfeiture Order Other Yes Yes No None Yes Yes Yes No Israel Plea Agreement After Yes No No None Yes No Yes No Italy Patteggiamento Either Yes No No Substantive No No Yes No Japan Agreement Procedure Either Yes No No None Yes No Yes No Latvia Prosecutor's Penal Order Before Yes No No None Yes No No No Latvia Plea Agreement Before Yes No No None No No Yes No

Mexico Conditional Suspension of the Process Before No No Yes Substantive No No Yes No

Mexico Summary Procedure After No No Yes Substantive Yes No Yes No Netherlands Transaction Either Yes No No None Yes No No No Netherlands Punitive Order Either Yes No No None Yes No No No Netherlands Conditional dismissal Other Yes No No None Yes No No No Norway Optional Penalty Writ Before Yes No No None Yes No No No

Slovenia Agreement on the Confession of Guilt After Yes No No Substantive Yes No Yes No

│ 47




Other)





The prosecution


Other

The Prosecution


body

The court



South Africa Plea Agreement After Yes No No Substantive No No Yes No South Africa Consent Orders After Yes No No None No Yes No No Spain Conformidad After Yes No No Substantive Yes No No No

Switzerland Accelerated Proceedings/ Simplified Procedure

Before Yes No No Substantive Yes No No No

Switzerland Summary Punishment Order Before Yes No No None Yes No No No

United Kingdom Deferred Prosecution Agreement After Yes No No Substantive No No Yes No

United Kingdom Plea Agreement After Yes No Yes None No No Yes No

United Kingdom Consent Order for Civil Recovery Other Yes No No Procedural Yes No No No

United Kingdom Administrative Order Other No Yes No None No Yes No Yes United Kingdom (Scotland) Civil Resolution Other Yes No No None Yes No No No

United States Plea Agreement After Yes No Yes Substantive No No Yes No United States DPA [DOJ] After Yes No No Procedural Yes No No No United States NPA [DOJ] Before Yes No No None Yes No No No


Before Yes No No None Yes No No No

United States Civil Resolutions [SEC] Other No Yes No None No No Yes No

United States Administrative Resolutions [SEC] Other No Yes No None No No No Yes

United States DPA [SEC] Other No Yes No None No Yes No Yes United States NPA [SEC] Other No Yes No None No Yes No Yes

Source: Answers to Questions 8e, 17, 26 and 36

48 │

Table 19. When can a resolution be reached? Authority entitled to enter into a resolution/impose terms and extent of judicial

oversight (Natural Persons)


Can resolution be reached before or after indictment (or

substitute)? (Before / After / Either / Other)

Authority entitled to enter into a resolution Court role in decision to resort to resolution?:

(Substantive / Procedural / None /

Depends )


The prosecution

An administrative agency Other

The Prosecution


body

The court

Government agency acting as


Argentina Abbreviated Procedure (Juicio Abreviado) Either Yes No No Substantive No No Yes No

Argentina Cooperation Agreement Before Yes No No Substantive No No Yes No Australia Plea Agreement Either Yes No No None No No Yes No Austria Diversion Either Yes No Yes Depends Yes No Yes No


Either Yes No Yes Depends Yes No Yes No


Either Yes No No Substantive Yes No No No

Brazil Conditional Suspension of the Procedure Either Yes No No Substantive Yes No Yes No

Canada Alternative Measures Either Yes No No None Yes No Yes No Canada Plea Agreement Either Yes No No None Yes No Yes No

Chile Conditional Suspension of Proceedings After Yes No No Substantive Yes No No No


After Yes No No Substantive Yes No No No

Colombia Declination with confiscation (Code of Criminal Procedure art. 324)

Either Yes No No Substantive No No No No

Colombia Preliminary agreement (Preacuerdo) Either Yes No No None No No Yes No

Costa Rica Declination with Confiscation Either Yes No No Substantive No No Yes No Costa Rica Suspension of Proceedings Either Yes No No Substantive No No Yes No

│ 49






Depends )


The prosecution


The Prosecution


body

The court



Costa Rica Shortened proceeding Either Yes No No Substantive No No Yes No

Czech Republic Agreement on Guilt and Punishment (AGP) Either Yes No No None Yes No Yes No

Estonia Termination for lack of public interest Either Yes No Yes Substantive Yes No Yes No

Estonia Termination for lack of proportionality Either Yes No Yes Substantive Yes No Yes No

Estonia Termination for cooperation Either Yes No No None Yes No No No Estonia Alternative proceedings Either Yes No Yes Substantive Yes No Yes No Estonia Summary proceedings Either Yes No Yes Substantive Yes No Yes No Estonia Expedited procedure Either Yes No Yes Substantive Yes No Yes No Finland Plea Agreement Either Yes No No None No No Yes No


Before Yes No No None Yes No No No

Germany Section 153a Either Yes No No Substantive Yes No Yes No Germany Negotiated Agreement After Yes No Yes Substantive Yes No Yes No Germany Penal Order After Yes No No Substantive Yes No No No

Hungary Resolution about the Admission of Guilt Before Yes No No Substantive Yes No Yes No

Hungary Possibility of Avoidance of criminal liability Before Yes No Yes None Yes Unknown Unknown Unknown

Israel Plea Agreement After Yes No No None Yes No Yes No Italy Patteggiamento Either Yes No Yes Substantive No No Yes No Japan Agreement Procedure Either Yes No No None Yes No Yes No Latvia Prosecutor's Penal Order Before Yes No No Unknown Yes No No No Latvia Plea Agreement Before Yes No No None No No Yes No

Mexico Conditional Suspension of the Process Before No No Yes Substantive No No Yes No

50 │






Depends )


The prosecution


The Prosecution


body

The court



Mexico Summary Procedure After No No Yes Substantive Yes No Yes No Netherlands Transaction Either Yes No No None Yes No No No Netherlands Punitive Order Either Yes No No None Yes No No No Netherlands Conditional dismissal Other Yes No No None Yes No No No Norway Optional Penalty Writ Before Yes No No None Yes No No No

Slovenia Agreement on the Confession of Guilt After Yes No No Substantive Yes No Yes No

South Africa Plea Agreement After Yes No No Unknown No No Yes No Spain Conformidad After Yes No No Substantive Yes No No No

Switzerland Accelerated Proceedings/ Simplified Procedure Before Yes No No Substantive Yes No No No

Switzerland Summary Punishment Order Before Yes No No None Yes No No No United Kingdom Plea Agreement After Yes No Yes None No No Yes No

United Kingdom Consent Order for Civil Recovery Other Yes No No Procedural Yes No No No

United States Plea Agreement After Yes No Yes Substantive No No Yes No United States DPA [DOJ] After Yes No No Procedural Yes No No No United States NPA [DOJ] Before Yes No No None Yes No No No United States Civil Resolutions [SEC] Other No Yes No None No No Yes No

United States Administrative Resolutions [SEC] Other No Yes No None No No No Yes

United States DPA [SEC] Other No Yes No None No Yes No Yes United States NPA [SEC] Other No Yes No None No Yes No Yes

Source: Answers to Questions 8e, 17, 26 and 36

│ 51

Table 20. Factors considered when deciding whether to use resolution procedure – pertaining to accused (Legal Persons)

Country Resolution name Self-report Admit guilt Admit facts Fully cooperate Partially cooperate

Information about others

Compliance system before

offence

Compliance system after

offence

Remedial actions

following discovery

Disciplinary measures

Recid-ivsim

Prior convictions/ enforcement

against related persons

Other

Argentina Penalty Exemption (Exención de Pena) Yes Yes Yes No Yes Yes Yes Yes Yes Yes No No No

Argentina

Effective Cooperation Agreement (Acuerdo de Colaboración Eficaz)

Yes Yes Yes No Yes Yes Yes Yes Yes Yes No No No

Australia Plea Agreement Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes No No

Austria Diversion No No No No No No No No Yes No No No Yes

Austria


Yes Yes Yes Yes No Yes No No No No No No Yes

Brazil Leniency Agreement [CGU/AGU] Yes Yes Yes Yes No Yes No Yes Yes Yes No No No


Yes Yes Yes Yes No Yes No Yes Yes Yes No No No

Canada Plea Agreement Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No

Canada Remediation Agreement

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No


Yes No Yes Yes No Yes No Yes Yes No Yes No No


No No Yes No No No No No No No No No No

52 │




offence


offence

Remedial actions

following discovery


Recid-ivsim



Other

Czech Republic

Agreement on Guilt and Punishment No Yes Yes No Yes No No Yes Yes No Yes No No

Estonia Termination for lack of public interest Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Estonia Termination for lack of proportionality Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Estonia Termination for cooperation Yes Yes Yes Yes Yes Yes Unknown Unknown Unknown Unknown Yes Unknown Unknown

Estonia Alternative proceedings Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Estonia Summary proceedings Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Estonia Expedited procedure Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

France


Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes No

France

Guilty Plea (Comparution sur Reconnaissance Préalable de Culpabilité - CRPC)

No Yes Yes No No No No No No No No No No

Germany Administrative Resolution Yes No Yes Yes Yes Unknown Yes Yes Yes Yes Unknown Unknown Yes

Germany Forfeiture Order Yes No Yes Yes Yes Unknown Yes Yes Yes Yes Unknown Unknown Yes

Israel Plea Agreement Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Italy Patteggiamento Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes

│ 53




offence


offence

Remedial actions

following discovery


Recid-ivsim



Other

Japan Agreement Procedure No No No Yes Yes Yes No No No No No No No

Latvia Prosecutor's Penal Order Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Latvia Plea Agreement Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No


No No No No No No Yes Yes Yes Yes Yes No No

Mexico Summary Procedure No Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes No

Netherlands Transaction Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No

Netherlands Punitive Order Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Netherlands Conditional dismissal Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Norway Optional Penalty Writ Yes Yes Yes No No No No No No No No No No

Slovenia Agreement on the Confession of Guilt No Yes No Yes No Yes No No No No No No Yes

South Africa Plea Agreement No Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes No

South Africa Consent Orders No No No No No No No No No No No No No

Spain Conformidad No Yes Yes No No No No No No No No No No


No No Yes Yes No No No No No No No No Yes

Switzerland Summary Punishment Order No No Yes No No No No No No No Yes No Yes

54 │




offence


offence

Remedial actions

following discovery


Recid-ivsim



Other

United Kingdom

Deferred Prosecution Agreement

Yes No Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes

United Kingdom Plea Agreement No Yes Yes Yes Yes

Yes Yes Yes Yes Yes Yes Yes No

United Kingdom

Consent Order for Civil Recovery Yes No Yes Yes No No Yes Yes Yes Yes Yes Yes Yes

United Kingdom Administrative Order Unknown No Unknown Unknown Unknown No No No No No No No No


Civil Resolution Yes No Yes Yes No No Yes Yes Yes Yes Yes Yes Yes

United States Plea Agreement No Yes Yes No No No No No No No No No No

United States DPA [DOJ] Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No

United States NPA [DOJ] Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No

United States

Declination with Disgorgement of Profits [DOJ]

Yes No Yes Yes No Yes Yes Yes Yes Yes Yes Yes No

United States

Civil Resolutions [SEC] Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No

United States

Administrative Resolutions [SEC] Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No

United States DPA [SEC] Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No

United States NPA [SEC] Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No


│ 55

Table 21. Factors considered when deciding whether to use resolution procedure – pertaining to accused (Natural Persons)


Information on others Recidivism Other

Argentina Abbreviated Procedure (Juicio Abreviado) Yes Yes Yes No Yes Yes No No

Argentina Cooperation Agreement No No Yes No Yes Yes No Yes

Australia Plea Agreement Yes Yes Yes Yes Yes Yes Yes No

Austria Diversion No No No No No No No Yes


Yes Yes Yes Yes No Yes No Yes

Brazil Cooperation Agreement (Acordo de colaboração premiada) Yes Yes Yes Yes No Yes No No

Brazil Conditional Suspension of the Procedure No No No No No No Yes No

Canada Alternative Measures Yes Yes Yes Yes Yes Yes Yes No

Canada Plea Agreement Yes Yes Yes Yes Yes Yes Yes No

Chile Conditional Suspension of Proceedings Yes No Yes Yes No Yes Yes No

Chile Expedited Procedure/Summary Procedure No No Yes No No No No No


Yes Yes Yes Yes Yes Yes No No

Colombia Preliminary agreement (Preacuerdo) Yes Yes Yes Yes Yes Yes No No

Costa Rica Declination with Confiscation No No Yes Yes No Yes No No

Costa Rica Suspension of Proceedings No No Yes Yes No Yes No No

Costa Rica Shortened proceeding No No Yes Yes No Yes No No

Czech Republic Agreement on Guilt and Punishment (AGP) No Yes Yes No Yes No Yes No

56 │



Estonia Termination for lack of public interest Yes Yes Yes Yes Yes Yes Yes Yes

Estonia Termination for lack of proportionality Yes Yes Yes Yes Yes Yes Yes Yes

Estonia Termination for cooperation Yes Yes Yes Yes Yes Yes Yes Yes

Estonia Alternative proceedings Yes Yes Yes Yes Yes Yes Yes Yes

Estonia Summary proceedings Yes Yes Yes Yes Yes Yes Yes Yes

Estonia Expedited procedure Yes Yes Yes Yes Yes Yes Yes Yes

Finland Plea Agreement No Yes Yes No Yes No No No


No Yes Yes No No No No No

Germany Section 153a Yes Yes Yes Yes Yes Yes Yes Yes

Germany Negotiated Agreement Yes Yes Yes Yes Yes Yes Yes No

Germany Penal Order Yes Yes Yes Yes Yes Yes Yes No

Hungary Resolution about the Admission of Guilt No Yes Yes Yes Yes Yes Yes No

Hungary Possibility of Avoidance of criminal liability Yes No No Yes Yes Yes No No

Israel Plea Agreement Yes Yes Yes Yes Yes Yes Yes Yes

Italy Patteggiamento Yes Yes Yes Yes Yes Yes Yes Yes

Japan Agreement Procedure No No No Yes Yes Yes No No

Latvia Prosecutor's Penal Order Yes Yes Yes Yes Yes Yes Yes Yes

Latvia Plea Agreement Yes Yes Yes Yes Yes Yes Yes No

Mexico Conditional Suspension of the Process No No No No No No Yes Yes

│ 57



Mexico Summary Procedure No Yes Yes Yes Yes Yes Yes Yes

Netherlands Transaction Yes Yes Yes Yes Yes Yes Yes No

Netherlands Punitive Order Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Netherlands Conditional dismissal Yes Yes Yes Yes Yes Yes Yes Yes

Norway Optional Penalty Writ Yes Yes Yes No No No No No

Slovenia Agreement on the Confession of Guilt No Yes No Yes No Yes No No

South Africa Plea Agreement No Yes Yes Yes No Yes Yes No

Spain Conformidad No Yes Yes No No No No No

Switzerland Accelerated Proceedings/ Simplified Procedure No No Yes Yes No No No Yes

Switzerland Summary Punishment Order No No Yes No No No Yes Yes

United Kingdom Plea Agreement No Yes Yes No No No No No

United Kingdom Consent Order for Civil Recovery Yes No Yes Yes No No Yes Yes

United States Plea Agreement No Yes Yes No No No No No

United States DPA [DOJ] Yes No Yes Yes Yes Yes Yes No

United States NPA [DOJ] Yes Yes Yes Yes Yes Yes Yes No

United States Civil Resolutions [SEC] Yes No Yes Yes Yes Yes Yes No

United States Administrative Resolutions [SEC] Yes No Yes Yes Yes Yes Yes No

United States DPA [SEC] Yes No Yes Yes Yes Yes Yes No

United States NPA [SEC] Yes No Yes Yes Yes Yes Yes No


58 │

Table 22. Factors considered when deciding whether to use resolution procedure – other

factors (Legal Persons)

Country Resolution name Public interest Resources of prosecution/time to

conclude case

Strength of the

evidence

Argentina Penalty Exemption

(Exención de Pena) No No Unknown

Argentina

Effective Cooperation

Agreement (Acuerdo de

Colaboración Eficaz)

No No Unknown

Australia Plea Agreement Yes Yes Yes

Austria Diversion No No Unknown

Austria

Withdrawal from

Prosecution due to

Cooperation with the

Public Prosecutor's Office

No No Unknown

Brazil Leniency Agreement

[CGU/AGU] Yes Yes Yes

Brazil Leniency Agreement

[Prosecution Service] Yes Yes Unknown

Canada Plea Agreement Yes No Unknown

Canada Remediation Agreement Yes No Unknown

Chile Conditional Suspension of

Proceedings No No Yes

Chile

Expedited

Procedure/Summary

Procedure

No No Yes

Czech Republic Agreement on Guilt and

Punishment (AGP) Yes Yes Unknown


public interest Yes Yes Unknown


proportionality Yes Yes Unknown

Estonia Termination for

cooperation

Estonia Alternative proceedings Yes Yes Unknown

Estonia Summary proceedings Yes Yes Unknown

Estonia Expedited procedure Yes Yes Unknown

France

Public Interest Judicial

Agreement (Convention

Judiciaire d’Intérêt Public -

CJIP)

No No Unknown

France

Guilty Plea (Comparution

sur Reconnaissance

Préalable de Culpabilité -

CRPC)

Yes No Unknown

Germany Administrative Resolution Unknown Unknown Unknown

Germany Forfeiture Order Unknown Unknown Unknown

Israel Plea Agreement Yes Yes Yes

Italy Patteggiamento No Yes Unknown

Japan Agreement Procedure No No Yes

Latvia Prosecutor's Penal Order Yes No Unknown

│ 59

Country Resolution name Public interest Resources of prosecution/time to

conclude case

Strength of the

evidence

Latvia Plea Agreement Yes No Unknown

Mexico Conditional Suspension of

the Process No No No

Mexico Summary Procedure Yes No Yes

Netherlands Transaction Yes Yes No

Netherlands Punitive Order No No No

Netherlands Conditional dismissal Yes No No

Norway Optional Penalty Writ No Yes Unknown

Slovenia Agreement on the

Confession of Guilt No Yes Unknown

South Africa Plea Agreement Yes Yes Unknown

South Africa Consent Orders No No Unknown

Spain Conformidad No No Unknown

Switzerland Accelerated Proceedings/

Simplified Procedure No No Unknown

Switzerland Summary Punishment

Order No No Unknown

United Kingdom Deferred Prosecution

Agreement Yes No Yes

United Kingdom Plea Agreement Yes No Unknown


Recovery Yes Yes Yes

United Kingdom Administrative Order No No Unknown

United Kingdom

(Scotland) Civil Resolution Yes Yes Unknown

United States Plea Agreement Yes Yes Yes

United States DPA [DOJ] Yes Yes Yes

United States NPA [DOJ] Yes Yes Yes

United States

Declination with

Disgorgement of Profits

[DOJ]

Yes Yes Yes

United States Civil Resolutions [SEC] Yes Yes Yes

United States Administrative Resolutions

[SEC] Yes Yes Yes

United States DPA [SEC] Yes Yes Yes

United States NPA [SEC] Yes Yes Yes

Source: Answers to Question 13b

60 │

Table 23. Factors considered when deciding whether to use resolution procedure – other

factors (Natural Persons)

Country Resolution name Public interest Resources of

prosecution/time to conclude case

Strength of the evidence

Argentina Abbreviated Procedure (Juicio Abreviado) No No Unknown

Argentina Cooperation Agreement No No Unknown

Australia Plea Agreement Yes Yes Yes

Austria Diversion No No Unknown


No No Unknown

Brazil Cooperation Agreement (Acordo de colaboração premiada) Yes Yes Unknown

Brazil Conditional Suspension of the Procedure No Yes Unknown

Canada Alternative Measures Yes No Unknown

Canada Plea Agreement Yes No Unknown

Chile Conditional Suspension of Proceedings No No Yes

Chile Expedited Procedure/Summary Procedure No No Yes

Colombia Declination with confiscation (Code of Criminal Procedure art. 324) Yes Yes Unknown

Colombia Preliminary agreement (Preacuerdo) Yes Yes Unknown

Costa Rica Declination with Confiscation No No No

Costa Rica Suspension of Proceedings No No No

Costa Rica Shortened proceeding No No No

Czech Republic Agreement on Guilt and Punishment (AGP) Yes Yes Unknown

Estonia Termination for lack of public interest Yes Yes Unknown

Estonia Termination for lack of proportionality Yes Yes Unknown

Estonia Termination for cooperation Yes Yes Unknown

Estonia Alternative proceedings Yes Yes Unknown

Estonia Summary proceedings Yes Yes Unknown

Estonia Expedited procedure Yes Yes Unknown

Finland Plea Agreement No Yes Unknown


Yes Unknown Unknown

Germany Section 153a Yes Yes Yes

Germany Negotiated Agreement Yes Yes Yes

│ 61

Country Resolution name Public interest Resources of

prosecution/time to conclude case

Strength of the evidence

Germany Penal Order Yes Yes Unknown

Hungary Resolution about the Admission of Guilt Yes No Unknown

Hungary Possibility of Avoidance of criminal liability Yes No Unknown


Italy Patteggiamento No Yes Unknown

Japan Agreement Procedure No No Yes

Latvia Prosecutor's Penal Order Yes No Unknown

Latvia Plea Agreement Yes No Unknown

Mexico Conditional Suspension of the Process No No No

Mexico Summary Procedure Yes No Yes

Netherlands Transaction Yes Yes No

Netherlands Punitive Order No No No

Netherlands Conditional dismissal Yes No No

Norway Optional Penalty Writ No No Unknown

Slovenia Agreement on the Confession of Guilt No No Unknown

South Africa Plea Agreement Yes Yes Unknown

Spain Conformidad No No Unknown

Switzerland Accelerated Proceedings/ Simplified Procedure No No Yes

Switzerland Summary Punishment Order No No Yes

United Kingdom Plea Agreement Yes No Unknown

United Kingdom Consent Order for Civil Recovery Yes Yes Yes

United States Plea Agreement Yes Yes Unknown



United States Civil Resolutions [SEC] Yes Yes Yes

United States Administrative Resolutions [SEC] Yes Yes Yes



Source: Answers to Question 13b.

62 │

Table 24. Do countries encourage voluntary disclosure? (Legal and Natural Persons)

Country Is voluntary disclosure by a NP

encouraged? (Yes, as a formal policy/ Yes, in practice/ No)

Is voluntary disclosure by a LP encouraged? (Yes, as a formal

policy/ Yes, in practice/ No) Additional information

Argentina No Yes, in practice

Australia Yes, in practice Yes, as a formal policy

Austria Yes, in practice Yes, in practice

Brazil Yes, as a formal policy Yes, as a formal policy Source: Brazil's response to Cross-Country tables

Canada Yes, in practice Yes, as a formal policy and in practice

Chile Yes, in practice Yes, in practice

Colombia Yes, in practice Yes, in practice

Costa Rica Unknown Unknown

Czech Republic Yes, in practice Yes, in practice

Estonia Yes, in practice Yes, in practice

Finland No N/A There are no resolution procedures for LP in Finland.

France Yes, in practice Yes, in practice

Germany Yes, in practice Yes, in practice .

Hungary Yes, in practice N/A There are no resolution procedures for LP in Hungary.

Israel Yes, in practice Yes, in practice

Italy No No

Japan Yes, in practice Yes, in practice

Latvia Yes, in practice Yes, in practice

Mexico Yes, in practice Yes, in practice

Netherlands Yes, in practice Yes, in practice

Norway Yes, in practice Yes, in practice

Slovenia Yes, in practice Yes, in practice

South Africa Yes, in practice Yes, in practice

Spain Yes, in practice Yes, in practice

Switzerland Yes, in practice Yes, in practice

United Kingdom No Yes, as a formal policy LP: "The SFO’s written policy encourages companies to self-report foreign bribery by enticing them with the prospect of civil recovery." Phase 3 para. 102.

United States Yes, as a formal policy Yes, as a formal policy


│ 63

Table 25. Forms of co-operation required or considered before resolution (Legal Persons)

Country Resolution name Share internal investigation

findings

Produce documents or materials Waive legal privilege

Help identify or investigate others

involved

Agree to support trial Other Additional information


Considered Considered Not relevant Mandatory Not relevant Not relevant

Argentina

Effective Cooperation Agreement (Acuerdo de Colaboración Eficaz)

Considered Considered Not relevant Mandatory Not relevant Not relevant

Australia Plea Agreement Considered Considered Considered Considered Considered Considered

Considered: Australia has developed a Best Practice Guideline for companies on self-reporting foreign bribery, which explains when charge negotiations are appropriate. Source: Answer to Questionnaire (Question 13b). Answers in red from Australia update to Cross-Country tables.

Austria Diversion Not relevant Not relevant Not relevant Not relevant Not relevant Mandatory Other: Diversion under VbVG para. 19 only available if, inter alia, the entity rectifies financial loss or other damage caused by crime.

Austria


Mandatory Mandatory Not relevant Mandatory Mandatory Not relevant

Brazil Leniency Agreement [CGU/AGU]


Brazil

Leniency Agreement [Prosecution Service]


Canada Plea Agreement Considered Considered Considered Considered Considered Not relevant

64 │


findings



involved


Canada Remediation Agreement Considered Considered Considered Considered Considered Not relevant


Considered Considered Not relevant Considered Not relevant Not relevant


Considered Considered Not relevant Considered Not relevant Not relevant

Czech Republic

Agreement on Guilt and Punishment (AGP)

Mandatory Considered Not relevant Not relevant Not relevant Not relevant


Considered Considered Not relevant Considered Considered Mandatory

Other: Estonia reports that any accused who benefits from one of the three "termination" resolutions must agree to fulfil certain conditions, which may be of a pecuniary or other nature -- for example, providing testimony against other suspects. (Source: Questionnaire Answer 19).

Estonia Termination for lack of proportionality

Considered Considered Not relevant Considered Considered Mandatory Other: As above

Estonia Termination for cooperation Considered Considered Not relevant Considered Considered Mandatory Other: As above

Estonia Alternative proceedings Considered Considered Not relevant Considered Considered Not relevant

Estonia Summary proceedings Considered Considered Not relevant Considered Considered Not relevant

Estonia Expedited procedure Considered Considered Not relevant Considered Considered Not relevant

France


Considered Considered Not relevant Not relevant Considered Not relevant

France Guilty Plea (Comparution sur

Not relevant Not relevant Not relevant Not relevant Not relevant Not relevant

│ 65


findings



involved


Reconnaissance Préalable de Culpabilité - CRPC)

Germany Administrative Resolution Considered Considered Not relevant Considered Not relevant Not relevant

Germany Forfeiture Order Considered Considered Not relevant Considered Not relevant Not relevant

Israel Plea Agreement Considered Considered Not relevant Considered Considered Not relevant

Mandatory: "There are no mandatory conditions aside from the obligation that an agreement must be in line with the public interest." Consider: In questionnaire, Israel

elaborated that any of the factors

"might be considered", but are not

required. In addition, none of the

factors would guarantee that a

resolution would be reached.

Italy Patteggiamento Not relevant Not relevant Not relevant Not relevant Not relevant Considered

Mandatory: In questionnaire, Italy reported that "restitution" of criminal proceeds may be required in some cases. Consider: In questionnaire, Italy reported that prosecution can consider a variety of circumstances arising after the offence. [Please elaborate whether any of the surveyed categories would be considered]

Japan Agreement Procedure Considered Considered Not relevant Considered Considered Considered

“(…) a public prosecutor may reach agreement with a suspect/defendant where the suspect/defendant cooperates to the prosecutor with regard to the case against the third person in return for the favorable treatment by the prosecutor with regard to the case against the suspect/defendant. The cooperation by a suspect/defendant include to depose the truth during investigation, to testify at trial and to present evidence against the third person.” (Answer to Study Questionnaire – Question 8.c.)

66 │


findings



involved


Latvia Prosecutor's Penal Order Considered Considered Not relevant Considered Considered Not relevant

Latvia Plea Agreement Considered Considered Not relevant Considered Considered Not relevant


Not relevant Not relevant Not relevant Not relevant Not relevant Considered

“Based on a reparation plan of the damage and submission of the accused to one or more conditions tending to perform an effective protection of the rights of the victim or offended.”(Answers to the Study Questionnaire)

Mexico Summary Procedure Not relevant Not relevant Considered Considered Considered Not relevant

Netherlands Transaction Considered Considered Not relevant Considered Considered Not relevant

Netherlands Punitive Order Unknown Unknown Unknown Unknown Unknown Not relevant

Netherlands Conditional dismissal Considered Considered Not relevant Considered Considered Not relevant

Norway Optional Penalty Writ Not relevant Not relevant Not relevant Not relevant Not relevant Not relevant


Considered Considered Not relevant Considered Considered Not relevant

South Africa Plea Agreement Considered Considered Not relevant Considered Considered Considered

Other: In questionnaire, South Africa reports that it considers "[c]onfiscation or forfeiture of any benefit derived"

South Africa Consent Orders Considered Considered Not relevant Not relevant Not relevant Not relevant

Spain Conformidad Considered Considered Not relevant Not relevant Not relevant Mandatory Other: In questionnaire, Spain reports that admission of guilt is mandatory but other factors would be considered when determining the sanction.

Switzerland

Accelerated Proceedings/ Simplified Procedure

Considered Considered Not relevant Not relevant Not relevant Not relevant

│ 67


findings



involved


Switzerland Summary Punishment Order Considered Considered Not relevant Not relevant Not relevant Not relevant

United Kingdom


Mandatory Mandatory Considered Mandatory Considered Not relevant Mandatory: The UK generally reports that it requires "Complete and unwavering cooperation with the law enforcement agency."

United Kingdom Plea Agreement Not relevant Not relevant Not relevant Not relevant Not relevant Not relevant

United Kingdom

Consent Order for Civil Recovery Mandatory Mandatory Not relevant Considered Considered Not relevant

United Kingdom

Administrative Order Considered Considered Not relevant Not relevant Not relevant Not relevant


Civil Resolution Mandatory Mandatory Not relevant Considered Considered Not relevant

United States Plea Agreement Considered Considered Not relevant Considered Considered Not relevant

United States DPA [DOJ] Considered Considered Not relevant Considered Considered Not relevant

United States NPA [DOJ] Considered Considered Not relevant Considered Considered Not relevant


Considered Considered Not relevant Considered Considered Not relevant

United States Civil Resolutions [SEC] Considered Considered Not relevant Considered Considered Not relevant

United States Administrative Resolutions [SEC] Considered Considered Not relevant Considered Considered Not relevant

United States DPA [SEC] Considered Considered Not relevant Considered Considered Not relevant

United States NPA [SEC] Considered Considered Not relevant Considered Considered Not relevant

Source: Answers to Questions 18 and 19

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Table 26. Forms of co-operation required or considered before resolution (Natural Persons)

Country Resolution name Confess Produce evidence Waive legal privilege


Testify or other support

for trial Other Additional information

Argentina Abbreviated Procedure (Juicio Abreviado) Considered Considered Not relevant Mandatory Not relevant Not relevant

Argentina Cooperation Agreement Considered Considered Not relevant Mandatory Not relevant Not relevant

Mandatory: Argentina's law appears to require offender to provide information that can at least, inter alia, (i) prevent offence; (ii) clarify the events under investigation; (iii) identify or locate co-perpetrators; or (iv) locate any instruments or proceeds of the crime. The information that offenders can provide information includes offences in which they have participated and those where they did not. Source: Law 27.304 secs. 1 & 3.

Australia Plea Agreement Considered Considered Considered Considered Considered Not relevant

Austria Diversion Not relevant Not relevant Not relevant Not relevant Not relevant Not relevant

“Cooperation from the accused is not required or considered, as the conditions set forth in CCP para. 198ff do not reference cooperation.” (Answer to Study Questionnaire – follow-up clarification)



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Brazil Conditional Suspension of the Procedure Not relevant Not relevant Not relevant Not relevant Not relevant Not relevant

Canada Alternative Measures Considered Considered Considered Considered Considered Not relevant

Canada Plea Agreement Considered Considered Considered Considered Considered Not relevant

Chile Conditional Suspension of Proceedings Considered Considered Not relevant Considered Considered Not relevant

Chile Expedited Procedure/Summary Procedure Considered Considered Not relevant Considered Considered Not relevant


Considered Considered Not relevant Mandatory Mandatory Not relevant

Colombia Preliminary agreement (Preacuerdo) Considered Considered Not relevant Considered Considered Not relevant

Costa Rica Declination with Confiscation Not relevant Not relevant Not relevant Considered Mandatory Not relevant

Costa Rica Suspension of Proceedings Not relevant Not relevant Not relevant Considered Mandatory Not relevant

Costa Rica Shortened proceeding Not relevant Not relevant Not relevant Considered Mandatory Not relevant

Czech Republic

Agreement on Guilt and Punishment (AGP) Mandatory Considered Not relevant Not relevant Not relevant Not relevant


Considered Considered Not relevant Considered Considered Mandatory

Other: Estonia reports that any accused who benefits from one of the three "termination" resolutions must agree to fulfil certain conditions, which may be of a pecuniary or other nature -

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- for example, providing testimony against other suspects. (Source: Questionnaire Answer 19).

Estonia Termination for lack of proportionality Considered Considered Not relevant Considered Considered Mandatory Other: As above

Estonia Termination for cooperation Considered Considered Not relevant Considered Considered Mandatory Other: As above

Estonia Alternative proceedings Considered Considered Not relevant Considered Considered Not relevant

Estonia Summary proceedings Considered Considered Not relevant Considered Considered Not relevant

Estonia Expedited procedure Considered Considered Not relevant Considered Considered Not relevant

Finland Plea Agreement Mandatory Not relevant Not relevant Not relevant Not relevant Not relevant


Not relevant Not relevant Not relevant Not relevant Not relevant Not relevant

Germany Section 153a Considered Considered Considered Considered Considered Not relevant

Germany Negotiated Agreement Considered Considered Considered Considered Considered Not relevant

Germany Penal Order Not relevant Not relevant Not relevant Not relevant Not relevant Not relevant

Hungary Resolution about the Admission of Guilt Mandatory Not relevant Not relevant Considered Considered Not relevant

Mandatory: In questionnaire, Hungary reports that "[a]dmission of guilt is the only mandatory precondition."

Hungary Possibility of Avoidance of criminal liability Not relevant Not relevant Not relevant Mandatory Mandatory Not relevant

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Israel Plea Agreement Considered Considered Not relevant Considered Considered Not relevant

Mandatory: "There are no mandatory conditions aside from the obligation that an agreement must be in line with the public interest." Consider: In questionnaire, Israel elaborated that any of the factors "might be considered", but are not required. In addition, none of the factors would guarantee that a resolution would be reached.

Italy Patteggiamento Not relevant Not relevant Not relevant Not relevant Not relevant Not relevant

Mandatory: In questionnaire, Italy reported that "restitution" of criminal proceeds may be required in some cases. Consider: In questionnaire, Italy reported that prosecution can consider a variety of circumstances arising after the offence.

Japan Agreement Procedure Not relevant Considered Not relevant Considered Considered Considered

“(…) a public prosecutor may reach agreement with a suspect/defendant where the suspect/defendant cooperates to the prosecutor with regard to the case against the third person in return for the favorable treatment by the prosecutor with regard to the case against the suspect/defendant. The cooperation by a suspect/defendant include to

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depose the truth during investigation, to testify at trial and to present evidence against the third person.” (Answer to Study Questionnaire – Question 8.c.)

Latvia Prosecutor's Penal Order Mandatory Considered Not relevant Considered Considered Not relevant

Latvia Plea Agreement Mandatory Considered Not relevant Considered Mandatory Not relevant

Mandatory/Other: Coverage of inflicted damage before plea agreement

Mexico Conditional Suspension of the Process Not relevant Not relevant Not relevant Not relevant Not relevant Other

“Based on a reparation plan of the damage and submission of the accused to one or more conditions tending to perform an effective protection of the rights of the victim or offended.” (Answers to the Study Questionnaire)

Mexico Summary Procedure Mandatory Not relevant Mandatory Considered Considered Not relevant

Netherlands Transaction Considered Considered Not relevant Considered Considered Not relevant

Netherlands Punitive Order Unknown Unknown Unknown Unknown Unknown Not relevant

Netherlands Conditional dismissal Considered Considered Not relevant Considered Considered Not relevant

Norway Optional Penalty Writ Not relevant Not relevant Not relevant Not relevant Not relevant Considered

Slovenia Agreement on the Confession of Guilt Considered Considered Not relevant Considered Considered Not relevant

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South Africa Plea Agreement Considered Considered Considered Considered Considered Considered

Other: In questionnaire, South Africa reports that it considers "[c]onfiscation or forfeiture of any benefit derived".

Spain Conformidad Considered Considered Not relevant Not relevant Not relevant Not relevant


Considered Considered Not relevant Not relevant Not relevant Not relevant

Switzerland Summary Punishment Order Considered Considered

Not relevant Not relevant Not relevant Not relevant

United Kingdom Plea Agreement Not relevant Not relevant Not relevant Not relevant Not relevant Not relevant

United Kingdom

Consent Order for Civil Recovery Mandatory Mandatory Not relevant Considered Considered Not relevant

United States Plea Agreement Considered Considered Not relevant Considered Considered Not relevant

United States DPA [DOJ] Considered Considered Not relevant Considered Considered Not relevant

United States NPA [DOJ] Considered Considered Not relevant Considered Considered Not relevant

United States Civil Resolutions [SEC] Considered Considered Not relevant Considered Considered Not relevant

United States Administrative Resolutions [SEC] Considered Considered Not relevant Considered Considered Not relevant

United States DPA [SEC] Considered Considered Not relevant Considered Considered Not relevant

United States NPA [SEC] Considered Considered Not relevant Considered Considered Not relevant


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Table 27. If no resolution reached, can evidence provided be used to investigate or prove the offence? (Legal Persons)

Country Resolution name Can evidence be used? (yes/no)

If yes, for investigation / trial / both


Argentina Penalty Exemption (Exención de Pena) No N/A

Argentina Effective Cooperation Agreement (Acuerdo de Colaboración Eficaz) No N/A

Australia Plea Agreement Yes Investigation Trial: "It is unlikely that anything said in charge negotiations could be used in a trial."

Austria Diversion Yes Both


Yes Both

Brazil Leniency Agreement [CGU/AGU] No N/A

Brazil Leniency Agreement [Prosecution Service] No N/A

Canada Plea Agreement No N/A

Canada Remediation Agreement No N/A

Chile Conditional Suspension of Proceedings Yes Both

Chile Expedited Procedure/Summary Procedure No N/A

Czech Republic Agreement on Guilt and Punishment (AGP) Yes Trial

Trial:"Section 175a para 7 states: "If the Agreement on Guilt and Punishment is not concluded, the public prosecutor will make a record thereof into the protocol; in such a case the declaration of guilt of the aggrieved person will be disregarded in further proceedings". However it should be stated, that such declaration cannot be confused with admission of facts by accused which was recorded into the protocol in line with all his/her procedural rights. Such admission of facts can be used as an evidence in a trial later."

Estonia Termination for lack of public interest Yes Investigation

Estonia Termination for lack of proportionality Yes Investigation

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Estonia Termination for cooperation Yes Investigation

Estonia Alternative proceedings Yes Investigation

Estonia Summary proceedings Yes Investigation

Estonia Expedited procedure Yes Investigation


No N/A Investigation/Trial: In the hypotheses of a failure to conclude a CJIP, the public prosecutor cannot use "declarations made or documents delivered by the legal person during the CJIP" for a court trial or investigation (CCP art. 41-1-2 (III)).


No N/A

Germany Administrative Resolution Yes Both

Germany Forfeiture Order Yes Both

Israel Plea Agreement No N/A

Italy Patteggiamento No N/A

Japan Agreement Procedure No N/A

Latvia Prosecutor's Penal Order Yes Both

Latvia Plea Agreement Yes Both

Mexico Conditional Suspension of the Process Yes Yes “In case the conditional suspension of the process is not approved or the established conditions are not met and it is revoked, the ordinary procedure is followed, with the oral trial stage that concludes in the judgment.” (Answers to the Study Questionnaire)

Mexico Summary Procedure Yes Yes “In case that the summary procedure is not approved, which neccesarily concludes with a conviction, it is followed the ordinary procedure with the stage of oral trial that concludes in conviction.” (Answers to the Study Questionnaire)

Netherlands Transaction Yes Both

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Netherlands Punitive Order Yes Both

Netherlands Conditional dismissal Yes Both

Norway Optional Penalty Writ Yes Both

Slovenia Agreement on the Confession of Guilt No N/A

South Africa Plea Agreement No N/A

South Africa Consent Orders Unknown Unknown

Spain Conformidad Yes Both

Switzerland Accelerated Proceedings/ Simplified Procedure Yes/No Both

Following a decision not to issue a judgement in accelerated proceedings, statements made by the parties for the purpose of the accelerated proceedings may not be used in any subsequent ordinary proceedings. (CCP art. 362(4))

Switzerland Summary Punishment Order Yes Both

If a rejection is filed, the public prosectutor shall gather additional evidence required to assess the rejection (Art. 355(1) CCP); If the public prosecutor decides to stand by the summary penalty order immediately to the court of first instance for the conduct of the main hearing. The summary penalty order constitutes the indictement. (CCP art. 356(1))

United Kingdom Deferred Prosecution Agreement Yes Trial

Limited use: Where the company and the prosecution have entered into negotiations for a DPA that is not approved by the Crown Court, material showing that the company entered into negotiations or any material created “solely for the purpose” of preparing the DPA or the statement of facts can only be used against the legal person: (a) on a prosecution for an offence consisting of the provision of inaccurate, misleading or incomplete information, or (b) on a prosecution for some other offence where in giving evidence [the defendant] makes a statement inconsistent with the material. However, the material can only be used for a prosecution of the other offence under (b) above, if the company has raised the issue or adduced evidence concerning it. (Crimes and Courts Act 2013, Schedule 17 art. 13(3)-(6))

United Kingdom Plea Agreement No N/A

United Kingdom Consent Order for Civil Recovery Yes Both

United Kingdom Administrative Order Unknown Unknown

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United Kingdom (Scotland) Civil Resolution Yes Both

United States Plea Agreement No N/A Trial: Statements made during plea discussions may not be used under Federal Rule of Evidence 410. "However, information provided during the investigation may be."

United States DPA [DOJ] Yes Both

Trial: Although generally "[c]onduct or a statement made during compromise negotiations about the claim" is not admissible as evidence to prove or disprove a claim or to impeach a witness by a prior inconsistent statement, there is an exception allowing such evidence to be introduced for those purposes "when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority". (Federal Rule of Evidence 408(a)(2)).

United States NPA [DOJ] Yes Both Trial: As above

United States Declination with Disgorgement of Profits [DOJ] Yes Both Trial: As above

United States Civil Resolutions [SEC] Yes Investigation Trial: "Conduct or a statement made during compromise negotiations about the claim" is not admissible as evidence to prove or disprove a claim or to impeach a witness by a prior inconsistant statement. (Federal Rule of Evidence 408(a)(2)).

United States Administrative Resolutions [SEC] Yes Investigation Trial: As above

United States DPA [SEC] Yes Investigation

Trial: As above, and: According to US FCPA Guide (page 76): "[I]f the Commission authorizes the enforcement action [after a DPA is breached], SEC staff may use any factual admissions made by the cooperating individual or company in support of a motion for summary judgment, while maintaining the ability to bring an enforcement action for any additional misconduct at a later date.

United States NPA [SEC] Yes Investigation Trial: As for Administrative Resolution


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Table 28. If no resolution reached, can evidence provided be used to investigate or prove the offence? (Natural Persons)


If yes, for investigation / trial / both Additional information

Argentina Abbreviated Procedure (Juicio Abreviado) No N/A

Argentina Cooperation Agreement No N/A

Australia Plea Agreement Yes Investigation Trial: "It is unlikely that anything said in charge negotiations could be used in a trial." Austria Diversion Yes Both


Yes Both

Brazil Cooperation Agreement (Acordo de colaboração premiada) No N/A

Brazil Conditional Suspension of the Procedure N/A N/A Brazil reports that no evidence is handed over by the defendant.

Canada Alternative Measures No N/A Canada Plea Agreement No N/A

Chile Conditional Suspension of Proceedings Yes Both

Chile Expedited Procedure/Summary Procedure No N/A

Colombia Declination with confiscation (Code of Criminal Procedure art. 324) Yes Both

Colombia Preliminary agreement (Preacuerdo) Yes Both

Costa Rica Declination with Confiscation No N/A

Costa Rica Suspension of Proceedings No N/A

Costa Rica Shortened proceeding No N/A

Czech Republic Agreement on Guilt and Punishment (AGP) Yes Trial

Trial: "Section 175a para 7 states: "If the Agreement on Guilt and Punishment is not concluded, the public prosecutor will make a record thereof into the protocol; in such a case the declaration of guilt of the aggrieved person will be disregarded in further proceedings". However it should be stated, that such declaration cannot be confused with admission of facts by accused which was recorded into the protocol in line with all his/her procedural rights. Such admission of facts can be used as an evidence in a trial later."

Estonia Termination for lack of public interest Yes Investigation

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Estonia Termination for lack of proportionality Yes Investigation

Estonia Termination for cooperation Yes Investigation

Estonia Alternative proceedings Yes Investigation

Estonia Summary proceedings Yes Investigation

Estonia Expedited procedure Yes Investigation

Finland Plea Agreement No N/A


No N/A

Germany Section 153a Yes Both

Germany Negotiated Agreement Yes Both Trial: "The defendant's confession may not be used in such a case." Germany Penal Order Yes Both

Hungary Resolution about the Admission of Guilt No N/A

Hungary Possibility of Avoidance of criminal liability No N/A

Israel Plea Agreement No N/A

Italy Patteggiamento No N/A

Japan Agreement Procedure No N/A Latvia Prosecutor's Penal Order Yes Both

Latvia Plea Agreement Yes Both

Mexico Conditional Suspension of the Process Yes Yes

“In case the conditional suspension of the process is not approved or the established conditions are not met and it is revoked, the ordinary procedure is followed, with the oral trial stage that concludes in the judgment.” (Answers to the Study Questionnaire)

Mexico Summary Procedure Yes Yes “In case that the summary procedure is not approved, which neccesarily concludes with a conviction, it is followed the ordinary procedure with the stage of oral trial that concludes in conviction.” (Answers to the Study Questionnaire)

Netherlands Transaction Yes Both

Netherlands Punitive Order Yes Both

Netherlands Conditional dismissal Yes Both

Norway Optional Penalty Writ Yes Both

Slovenia Agreement on the Confession of Guilt No N/A

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South Africa Plea Agreement No N/A

Spain Conformidad Yes Both

Switzerland Accelerated Proceedings/ Simplified Procedure Yes/No Both

Following a decision not to issue a judgement in accelerated proceedings, statements made by the parties for the purpose of the accelerated proceedings may not be used in any subsequent ordinary proceedings. (CCP art. 362(4))

Switzerland Summary Punishment Order Yes Both

If a rejection is filed, the public prosectutor shall gather additional evidence required to assess the rejection (CCP art. 355(1)); If the public prosecutor decides to stand by the summary penalty order immediately to the court of first instance for the conduct of the main hearing. The summary penalty order constitutes the indictement. (CCP art. 356(1))

United Kingdom Plea Agreement Yes Yes

United Kingdom Consent Order for Civil Recovery Yes Both

United States Plea Agreement No N/A Trial: Statements made during plea discussions may not be used under Federal Rule of Evidence 410. "However, information provided during the investigation may be."

United States DPA [DOJ] Yes Both

Trial: "Conduct or a statement made during compromise negotiations about the claim- except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority" may not be used. (Federal Rule of Evidence 408(2))

United States NPA [DOJ] Yes Both Trial: As above

United States Civil Resolutions [SEC] No N/A Trial: "Conduct or a statement made during compromise negotiations about the claim" may not be used. (Federal Rule of Evidence 408(2)). "However, information provided during the investigation may be."

United States Administrative Resolutions [SEC] No N/A Trial: As above

United States DPA [SEC] No N/A

Trial: As above, and: Furthermore, if the Commission authorizes the enforcement action, SEC staff may use any factual admissions made by the cooperating individual or company in support of a motion for summary judgment, while maintaining the ability to bring an enforcement action for any additional misconduct at a later date. (FCPA Guide p. 76);

United States NPA [SEC] No N/A Trial: "Conduct or a statement made during compromise negotiations about the claim" may not be used. (Federal Rule of Evidence 408(2)). "However, information provided during the investigation may be."


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Table 29. Can a resolution be appealed or challenged? (Legal Persons)

Country Resolution name Can resolution be appealed/challenged?

(Yes/No)

If answer is "yes", who is entitled to appeal/challenge? Additional information

Suspect/accused Public prosecutor Victim Other


No N/A N/A N/A N/A


No N/A N/A N/A N/A

Australia Plea Agreement Yes Yes In certain circumstances, a legal or natural person may apply for leave to change the original plea.

Austria Diversion Yes Yes “According to Sect. 209 para. 2 CCP, the decision during trial phase can be challenged by the Public Prosecution office.” (Answer to Study Questionnaire – follow-up clarification)


Yes Yes Yes The commissioner for legal protection is entitled to demand that proceedings are to be continued (para.209a(6)). (The suspect may also lodge an appeal claiming he is being unlawfully denied the status of a "crown witness" ( that is to say, he was not granted the possibility to take advantage of this procedure). (Answer to Study Questionnaire)


No N/A N/A N/A N/A


Unknown Unknown Unknown No No "There is no appeal or challenging procedure by third parties. However, they will be able to challenge the validity of the evidence gathered as a consequence of the resolution."

Canada Plea Agreement No N/A N/A N/A N/A

Canada Remediation Agreement No N/A N/A N/A N/A


Yes Yes Yes Yes


Yes Yes Unknown Unknown


Yes Yes Yes Yes "I. Appeal by public prosecutor or defendant - an appeal against the judgment by which the court approved an

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(Yes/No)



agreement on guilt and punishment may be filed only if such judgment is inconsistent with the agreement on guilt and punishment the approval of which the public prosecutor proposed to the court. Section 245 of CCP. II. The victim who exercised a claim for compensation for damage or non-material damage, or for surrender of unjust enrichment, may file an appeal against the judgment by which the court approved the agreement on guilt and punishment due to the incorrectness of the statement on compensation for damage or non-material damage in monetary terms, or on surrender of unjust enrichment, unless in the agreement on guilt and punishment the victim agreed to the scope and manner of compensation for damage or non-material damage, or to the surrender of unjust enrichment, and such agreement was approved by the court in the form to which they agreed. Section 245 of CCP."


No N/A N/A N/A N/A


No N/A N/A N/A N/A

Estonia Termination for cooperation No N/A N/A N/A N/A

Estonia Alternative proceedings Yes Yes Yes Unknown Unknown

Estonia Summary proceedings No N/A N/A N/A N/A

Estonia Expedited procedure Yes Yes Yes Unknown Unknown


No N/A N/A N/A N/A


Yes Yes Yes Yes

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(Yes/No)



Germany Administrative Resolution Yes Yes “The fine can be appealed, especially the amount of the regulatory fine. But this has never happened in practice (in cases relating to the foreign bribery sphere).”

Germany Forfeiture Order No N/A N/A N/A N/A


"The prosecution can repeal its agreement to settle up to the point when the defendant submits an admission of guilt before the court. Additionally, since the court is not bound to the agreement, both prosecution and defendant may appeal the verdict when it exceeds the boundaries of sanctions agreed upon. A defendant can appeal the verdict based on claims concerning his or her admission of guilt."

Italy Patteggiamento Yes Yes Yes "The prosecutor when: (i) he did not give his consent to the patteggiamento and (ii) the patteggiamento was nevertheless granted by the judge; the prosecutor and the accused, before the Supreme Court of Cassation, for reasons involving: (i) the accused's consent; (ii) the correspondence between demand and sanction; (iii) and the correct qualification of facts."

Japan Agreement Procedure No N/A N/A N/A N/A

Latvia Prosecutor's Penal Order Yes Yes Yes

Latvia Plea Agreement Yes Yes Yes


Yes Yes Yes Yes

Mexico Summary Procedure Yes Yes Yes Yes

Netherlands Transaction Yes Yes Yes "A directly interested party (e.g. the victim or a public interest organisation) can challenge the settlement pursuant to article 12 of the Dutch criminal procedure code. The court may either confirm or quash the settlement. In case of the latter, the case has to be brought to trial."

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(Yes/No)



Netherlands Punitive Order Yes Yes Yes Yes "Yes, The suspect who does not agree with the punitve order can file an appeal to the court (verzetprocedure) on the basis of article 257e Criminal Procedure Code. Also (like with the transaction on the basis of article 12 of the Criminal Procedure Code "direct interested parties" can appeal the decision to settle at the Court of appeal. Interested parties are for example victims”

Netherlands Conditional dismissal Yes Yes Yes Yes "Yes, albeit limited. When issuing the Conditional Dismissal, the prosecutor will attach a dismissal code. The defendant may contest this code, either stating there was a technical impediment to further prosecution (e.g. not sufficient evidence) or stating that the wrong code was used. Such objection falls within administrative procedure. In addition, the defendant may appeal to the Court of Appeals. The defendant or any interested party may contest a Conditional Dismissal with the Court of Appeals on the basis of article 12 of the CPC."

Norway Optional Penalty Writ Yes Yes Yes Criminal Procedure Act, srction 259: “Acceptance of the option may be appealed against by the parties. The following are the only grounds for appeal: 1) that a procedural error has been

committed,

2) that penal legislation has been

wrongly applied to the matter described

in the writ to the detriment of the person

charged, or that criminal liability has

become time-barred,

3) that the acceptance is not binding as a

declaration of intent.” Slovenia Agreement on the Confession

of Guilt Yes Yes Reasons for appeal are limited (Para. 2 of art. 370 of

Criminal Procedure Act) art. 370 (unofficial translation, consolidated version 2006) "A judgement may be challenged: 1) on the ground of substantial violation of

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(Yes/No)



provisions of the criminal procedure; 2) on grounds of violation of criminal law; 3) on the ground of erroneous or incomplete determination of the factual situation; 4) on account of the decision on criminal sanctions, confiscation of proceeds, costs of criminal proceedings, indemnification claims and the announcement of the judgement in the press and on radio or television."

South Africa Plea Agreement Yes Yes Yes Yes Yes "Any party to the proceedings."

South Africa Consent Orders No N/A N/A N/A N/A

Spain Conformidad No N/A N/A N/A N/A


Yes Yes Yes Yes Yes The sole grounds for appeal against a judgment in accelerated proceedings are that a party did not consent to the indictment or that the judgment does not correspond to the indictment. (SCPC art. 362(5)); Aside from the prosecutor and the accused, the victim needs to give its consent to the resolution also. Otherwise, the public prosecutor must conduct ordinary preliminary proceedings. (CCP art. 362). Consent of the parties is irrevocable (art. 362(2)); "These individuals [NP investigated] challenged the order against the legal person. The Office of the Attorney General declared their objections inadmissible on the ground that they did not have standing to appeal. This was confirmed by the Appeals Chamber of the Federal Criminal Court." Phase 4 footnote 129

Switzerland Summary Punishment Order Yes Yes Yes Yes Yes A written rejection of the summary penalty order may be filed with the public prosecutor within ten days by the accused and other affected persons(SCPC art. 354(1)); Unless a valid rejection is filed, the summary penalty order becomes a final judgement (SCPC art. 354)


Yes Yes No Yes The UK reports that there is no direct route to appeal a DPA, but the decision can be challenged in the Administrative Court by judicial review

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(Yes/No)



United Kingdom Plea Agreement Yes Yes No No The NP can challenge the sentence or the basis of the plea in the Court of Appeal and Supreme Court, while the state via the Attorney General can appeal the sentence to the Court of Appeal if considered to be unduly lenient

United Kingdom Consent Civil Recovery Order Unknown

United Kingdom Administrative Order No N/A N/A N/A N/A


Civil Resolution Unknown

United States Plea Agreement Yes Yes "A plea agreement typically includes certain waivers, but there are limited instances where a plea agreement may be appealed. The most frequent cases arise from allegations of an illegal sentence, ineffective assistance of counsel, or prosecutorial misconduct."

United States DPA [DOJ] No N/A N/A N/A N/A

United States NPA [DOJ] No N/A N/A N/A N/A

United States Declination with Disgorgement [DOJ]

No N/A N/A N/A N/A

United States Civil Resolutions [SEC] No N/A N/A N/A N/A


No N/A N/A N/A N/A

United States DPA [SEC] No N/A N/A N/A N/A

United States NPA [SEC] No N/A N/A N/A N/A

Source: Answers to Question 20.

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Table 30. Can the resolution be appealed or challenged? (Natural Persons)

Country Resolution name (NP) Can resolution be appealed/challenged?

(Yes/No)



Argentina Abbreviated Procedure (Juicio Abreviado)

Yes Yes Yes Other: “in some cases, a public agency such as the Anticorruption Office of the UIF (Financial Information Unit)” (Answers to Study Questionnaire – follow-up clarification)

Argentina Cooperation Agreement No N/A N/A N/A N/A

Australia Plea Agreement Yes Yes In certain circumstances, a legal or natural person may apply for leave to change the original plea.

Austria Diversion Yes Yes Yes "The initial diversionary decision is taken by the public prosecutor. After charges have been brought against the suspect because of criminal acts that have to be prosecuted ex officio, the court has to apply the provisions applicable for the office of public prosecution according to the ‚diversion package‘ and has to dismiss the proceeding with a judicial decision under the prerequisites applicable for the office of public prosecution until the end of the main trial (CCP para. 199). In this case, the public prosecutor must be given an opportunity to address the court, and in the case of adult offenders, the victim’s interests must be expressly addressed. Against such a decision only the office of public prosecution has the right to appeal. The decision shall not be served to the suspect before it has become final and binding for the office of public prosecution. The suspect as well as the prosecutor may lodge an appeal in favour of the suspect, if the court decides against the implementation of the withdrawal of prosecution, even though the qualifications for this are fulfilled. This appeal is against the court’s decision, in which the court finds the suspect guilty."


Yes Yes Yes "The commissioner for legal protection is entitled to demand that proceedings are to be continued (para.209a(6)). (The suspect may also lodge an appeal claiming he is being unlawfully denied the status of a "crown witness" ( that is to say, he was not granted the possibility to take advantage of this procedure of this procedure)."

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(Yes/No)




Unknown "There is no appeal or challenging procedure by third parties. However, they will be able to challenge the validity of the evidence gathered as a consequence of the resolution."

Brazil Conditional Suspension of the Procedure

No N/A N/A N/A N/A

Canada Alternative Measures No N/A N/A N/A N/A

Canada Plea Agreement No N/A N/A N/A N/A


Yes Yes Yes Yes


Yes Yes Unknown Unknown "The complainants or, in certain cases, the accused person".


Yes Yes Yes According to CCP art. 327 "the victim and the Public Ministry may challenge the evidence tendered by the Prosecutor General's Office to sustain the decision [to apply thedeclination with confiscation]. The judge shall have the final say."; "In Colombia the Inspector General’s Office (Procuraduría General de la Nación), may intervene in criminal trials to protect the rights of the parties and uphold the law. The Inspector General’s Office is also referred to in the law as the Public Ministry (Ministerio Público)." Phase 2 footnote 118

Colombia Preliminary agreement (Preacuerdo)

Yes Yes It seems that the victim/s could challenge the resolution (see sentence C-516 of the Constitutional Court under CCP art.348 stating that the victims can intervene in the conclusion of agreements and art. 351 stating that "effective reparations to the victim that may result from Preliminary agreement between the prosecutor and indicted or accused can be accepted by the victim. In case of refusal, the victim may go to the relevant judicial channels"). Answer provided refers to judicial oversight and does not seem applicable here.

Costa Rica Declination with Confiscation Yes Unknown Unknown Unknown Unknown Who can challenge: "The party affected by the measure".

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(Yes/No)



Costa Rica Suspension of Proceedings Yes Unknown Unknown Unknown Unknown Who can challenge: "The party affected by the measure".

Costa Rica Shortened proceeding Yes Unknown Unknown Unknown Unknown Who can challenge: "The party affected by the measure".


Yes Yes Yes Yes "I. Appeal by public prosecutor or defendant - an appeal against the judgment by which the court approved an agreement on guilt and punishment may be filed only if such judgment is inconsistent with the agreement on guilt and punishment the approval of which the public prosecutor proposed to the court. Section 245 of CCP. II. The victim who exercised a claim for compensation for damage or non-material damage, or for surrender of unjust enrichment, may file an appeal against the judgment by which the court approved the agreement on guilt and punishment due to the incorrectness of the statement on compensation for damage or non-material damage in monetary terms, or on surrender of unjust enrichment, unless in the agreement on guilt and punishment the victim agreed to the scope and manner of compensation for damage or non-material damage, and such agreement was approved by the court in the form to which they agreed. Section 245 of CCP)."


No N/A N/A N/A N/A


No N/A N/A N/A N/A

Estonia Termination for cooperation No N/A N/A N/A N/A

Estonia Alternative proceedings Yes Yes Yes Unknown Unknown

Estonia Summary proceedings No N/A N/A N/A N/A

Estonia Expedited procedure Yes Yes Yes Unknown Unknown

Finland Plea Agreement Yes Yes Yes "The Court's decision on the plea bargain is open to appeal by both the accused and the prosecutor."

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(Yes/No)




Yes Yes Yes Yes

Germany Section 153a Yes Yes Yes Yes Yes "However, a 'disciplinary complaint' to the head of the prosecutor’s office, the prosecutor general or the Land ministry of justice is available to anyone" Phase 2 para. 54

Germany Negotiated Agreement Yes Yes Yes "If a negotiated agreement is concluded, the public prosecutor's office and the defendant still have the option to appeal without any restriction."

Germany Penal Order Yes Yes Yes


Yes Yes Yes Unknown Yes "It is not the resolution itself but the court's decision which can be appealed. The accused person, the defence lawyer and the prosecutor but the scope of the appeal is very limited covering practically only ancillary issues, not the main questions."

Hungary Possibility of Avoidance of criminal liability

No N/A N/A N/A N/A

Israel Plea Agreement Yes Yes Yes "The prosecution can repeal its agreement to settle up to the point when the defendant submits an admission of guilt before the court. Additionally, since the court is not bound to the agreement, both prosecution and defendant may appeal the verdict when it exceeds the boundaries of sanctions agreed upon. A defendant can appeal the verdict based on claims concerning his or her admission of guilt."

Italy Patteggiamento Yes Yes Yes No No "The prosecutor when: (i) he did not give his consent to the patteggiamento and (ii) the patteggiamento was nevertheless granted by the judge; the prosecutor and the accused, before the Supreme Court of Cassation, for reasons involving: (i) the accused's consent; (ii) the correspondence between demand and sanction; (iii) and the correct qualification of facts."

Japan Agreement Procedure No N/A N/A N/A N/A

Latvia Prosecutor's Penal Order Yes Yes Yes

│ 91


(Yes/No)



Latvia Plea Agreement Yes Yes Yes


Yes Yes Yes Yes Unknown

Mexico Summary Procedure Yes Yes Yes Yes

Netherlands Transaction Yes Yes Yes "A directly interested party (e.g. the victim or a public interest organisation) can challenge the settlement pursuant to article 12 of the Dutch criminal procedure code. The court may either confirm or quash the settlement. In case of the latter, the case has to be brought to trial."

Netherlands Punitive Order Yes Yes Yes Yes "Yes, The suspect who does not agree with the punitve order can file an appeal to the court (verzetprocedure) on the basis of article 257e Criminal Procedure Code. Also (like with the transactie on the basis of article 12 of the Criminal Procedure Code "direct interested parties" can appeal the decision to settle at the Court of appeal. Interested parties are for example victims of the alleged crime."

Netherlands Conditional dismissal Yes Yes Yes Yes "Yes, albeit limited. When issuing the Conditional Dismissal, the prosecutor will attach a dismissal code. The defendant may contest this code, either stating there was a technical impediment to further prosecturion (e.g. not sufficient evidence) or stating that the wrong code was used. Such objection falls within administrative procedure. In addition, the defendant may appeal to the Court of Appeals. The defendant may contest the Conditional Dismissal on the basis of article 12 of the Criminal Procedure Code stating that he wants to be acquited by a court of law. Equally, any interested party may contest a Conditional Dismissal with the Court of Appeals on the basis of article 12 of the Criminal Procedure Code."

Norway Optional Penalty Writ Yes Yes Yes Criminal Procedure Act, section 259: “Acceptance of the option may be appealed against by the parties. The following are the only grounds for appeal: 1) that a procedural error has been committed, 2) that penal legislation has been wrongly

92 │


(Yes/No)



applied to the matter described in the writ to the detriment of the person charged, or that criminal liability has become time-barred, 3) that the acceptance is not binding as a declaration of intent.”


Yes Yes Unknown Unknown Unknown Reasons for appeal are limited (Par. 2 of art. 370 of Criminal Procedure Act) art. 370 (unofficial translation, consolidated version 2006) "A judgement may be challenged: 1) on the ground of substantial violation of provisions of the criminal procedure; 2) on grounds of violation of criminal law; 3) on the ground of erroneous or incomplete determination of the factual situation; 4) on account of the decision on criminal sanctions, confiscation of proceeds, costs of criminal proceedings, indemnification claims and the announcement of the judgement in the press and on radio or television."

South Africa Plea Agreement Yes Yes Yes Yes Unknown "Any party to the proceedings."

Spain Conformidad No N/A N/A N/A N/A


Yes Yes Yes Yes Yes The sole grounds for appeal against a judgment in accelerated proceedings are that a party did not consent to the indictment or that the judgment does not correspond to the indictment. (SCPC art. 362(5)); Aside from the prosecutor and the accused, the victim needs to give its consent to the resolution also. Otherwise, the public prosecutor must conduct ordinary preliminary proceedings. (SCPC art. 362). Consent of the parties is irrevocable (Art. 362(2)); "These individuals [NP investigated] challenged the order against the legal person. The Office of the Attorney General declared their objections inadmissible on the ground that they did not have standing to appeal. This was confirmed by the Appeals Chamber of the Federal Criminal Court." Phase 4 footnote 129

Switzerland Summary Punishment Order Yes Yes Yes Yes Yes A written rejection of the summary penalty order may be filed with the public prosecutor within ten days by the accused and

│ 93


(Yes/No)



other affected persons” (SCPC art. 354(1)); Unless a valid rejection is filed, the summary penalty order becomes a final judgement (SCPC art. 354)

United Kingdom Plea Agreement Yes Yes No Yes No Victims can challenge a plea in the Administrative Court by judicial review

United Kingdom Consent Order for Civil Recovery

Unknown

United States Plea Agreement Yes Yes Unknown Unknown Unknown "A plea agreement typically includes certain waivers, but there are limited instances where a plea agreement may be appealed. The most frequent cases arise from allegations of an illegal sentence, ineffective assistance of counsel, or prosecutorial misconduct."

United States DPA [DOJ] No N/A N/A N/A N/A

United States NPA [DOJ] No N/A N/A N/A N/A

United States Civil Resolutions [SEC] No N/A N/A N/A N/A


No N/A N/A N/A N/A

United States DPA [SEC] No N/A N/A N/A N/A

United States NPA [SEC] No N/A N/A N/A N/A


94 │

Table 31. Incentives for an accused to enter into a resolution (Legal Persons)

Country Resolution name Total exemption

Obtain reduced

sentence

Obtain conditional suspension of

sentence

Avoid consequences of conviction

Have certainty in the outcome

Avoid reputational damage

Reduced costs

Avoid lengthy trial


Yes Yes


Yes Yes

Australia Plea Agreement Yes

Yes Yes

Austria Diversion Yes Yes


Yes Yes


Yes Yes Yes Yes Yes Yes


Yes Yes Yes Yes Yes Yes

Canada Plea Agreement Canada Remediation Agreement Yes Chile Conditional Suspension of

Proceedings Yes Yes


Yes Yes Yes

Colombia Benefits due to Collaboration Yes Yes


Yes Yes


Yes Yes Yes


Yes Yes Yes

Estonia Termination for cooperation

│ 95


Obtain reduced

sentence


sentence




Reduced costs

Avoid lengthy trial

Estonia Alternative proceedings Yes Yes Yes

Estonia Summary proceedings Yes Yes Yes

Estonia Expedited procedure Yes Yes Yes


Yes Yes Yes


Yes Yes Yes

Germany Administrative Resolution Yes Yes

Germany Forfeiture Order Yes

Israel Plea Agreement Yes Yes Yes Yes Yes Yes

Italy Patteggiamento Yes Yes Yes Yes Yes Yes

Japan Agreement Procedure Yes Yes Latvia Prosecutor's Penal Order Yes Yes

Latvia Plea Agreement Yes Yes


Yes No No No Yes No Yes Yes

Mexico Summary Procedure No No No No Yes No Yes Yes

Netherlands Transaction Yes Yes Yes Yes Yes

Netherlands Punitive Order Yes Yes Yes Yes

Netherlands Conditional dismissal Yes Yes Yes Yes Yes

Norway Optional Penalty Writ Yes Yes Yes Yes


Yes Yes Yes


96 │


Obtain reduced

sentence


sentence




Reduced costs

Avoid lengthy trial

South Africa Consent Orders Yes Yes

Spain Conformidad Yes Yes


Yes Yes Yes

Switzerland Summary Punishment Order No No No Yes Yes Yes Yes


Yes No Yes Yes Yes Yes Yes

United Kingdom Plea Agreement No Yes No No Yes Yes Yes


Yes Yes Yes

United Kingdom Administrative Order Yes


Civil Resolution Yes Yes Yes Yes

United States Plea Agreement Yes Yes

United States DPA [DOJ] Yes Yes Yes Yes



Yes Yes Yes Yes

United States Civil Resolutions [SEC] Yes Yes


Yes Yes

United States DPA [SEC] Yes Yes Yes Yes

United States NPA [SEC] Yes Yes Yes Yes


│ 97

Table 32. Incentives for an accused to enter into a resolution (Natural Persons)

Country Resolution name Total exemption Partial exemption Obtain reduced

sentence


sentence


Have certainty in

the outcome

Avoid reputational

damage

Reduced costs

Avoid lengthy trial


Yes Yes Yes

Argentina Cooperation Agreement Yes Yes

Australia Plea Agreement Yes Yes Yes Yes

Austria Diversion Yes Yes Yes


Yes Yes Yes


Yes Yes Yes Yes


Yes Yes Yes

Canada Alternative Measures Yes Yes

Canada Plea Agreement


Yes Yes


Yes Yes

Colombia Declination with confiscation (Code of Criminal Procedure art. 324) Yes


Yes Yes

Costa Rica Declination with Confiscation Yes Yes Yes Yes

Costa Rica Suspension of Proceedings Yes Yes Yes Yes

Costa Rica Shortened proceeding Yes Yes


Yes Yes

98 │


sentence


sentence


Have certainty in

the outcome

Avoid reputational

damage

Reduced costs

Avoid lengthy trial

Estonia Termination for lack of public interest Yes Yes Yes

Estonia Termination for lack of proportionality Yes Yes Yes

Estonia Termination for cooperation Yes Yes Yes

Estonia Alternative proceedings Yes Yes Yes

Estonia Summary proceedings Yes Yes Yes

Estonia Expedited procedure Yes Yes Yes

Finland Plea Agreement Yes Yes Yes


Yes Yes Yes

Germany Section 153a Yes

Germany Negotiated Agreement Yes Yes



Yes Yes Yes

Hungary Possibility of Avoidance of criminal liability Yes Yes

Israel Plea Agreement Yes Yes Yes Yes Yes

Italy Patteggiamento Yes Yes Yes Yes Yes

Japan Agreement Procedure Yes Yes Yes

Latvia Prosecutor's Penal Order Yes Yes


Mexico Conditional Suspension of the Process Yes No No No No Yes No Yes Yes

│ 99


sentence


sentence


Have certainty in

the outcome

Avoid reputational

damage

Reduced costs

Avoid lengthy trial

Mexico Summary Procedure No Yes Yes No No Yes No Yes Yes

Netherlands Transaction Yes Yes Yes Yes Yes

Netherlands Punitive Order Yes Yes Yes Yes

Netherlands Conditional dismissal Yes Yes Yes Yes Yes

Norway Optional Penalty Writ Yes Yes Yes Yes


Yes Yes Yes


Spain Conformidad Yes Yes


No Yes Yes Yes

Switzerland Summary Punishment Order No No Yes Yes Yes Yes

United Kingdom Plea Agreement Yes Yes Yes Yes

United Kingdom Consent Order for Civil Recovery Yes Yes Yes

United States Plea Agreement Yes Yes Yes



United States Civil Resolutions [SEC] Yes Yes

United States Administrative Resolutions [SEC] Yes Yes




100 │

Table 33. Disincentives for an accused to enter into a resolution (Legal Persons)

Country Resolution name Piling on of enforcement

actions or other proceedings

Enforcement actions against

managers and/or employees of

accused company

Requirement to plead guilty (or admit guilt)

Requirement to accept legal consequences

Higher sanctions

No full trial guaranties

Uncertainty in the outcome

Imposition of robust and onerous conditions


Yes Yes


Yes Yes Yes

Australia Plea Agreement Yes Yes

Austria Diversion


Brazil Leniency Agreement [CGU/AGU] Yes


Yes Yes

Canada Plea Agreeement Yes Canada Remediation Agreement Yes


Yes Yes


Yes


Yes

Estonia Termination for lack of public interest Yes


Estonia Termination for cooperation Estonia Summary proceedings Yes


France Public Interest Judicial Agreement Yes

│ 101





accused company



Higher sanctions




(Convention Judiciaire d’Intérêt Public - CJIP)


Germany Administrative Resolution Germany Forfeiture Order Israel Plea Agreement Yes Yes Yes


Japan Agreement Procedure Latvia Prosecutor's Penal Order



No No No Yes No No No No

Mexico Summary Procedure No Yes Yes Yes No No No No

Netherlands Transaction

Yes

Netherlands Punitive Order

Yes

Yes

Netherlands Conditional dismissal Yes Yes


Yes



South Africa Consent Orders



Yes Yes No

102 │





accused company



Higher sanctions




Switzerland Summary Punishment Order No

United Kingdom Deferred Prosecution Agreement Yes Yes Yes Yes Yes

United Kingdom Plea Agreement Yes Yes Yes


United Kingdom Administrative Order


Civil Resolution






United States Administrative Resolutions [SEC] Yes




│ 103

Table 34. Disincentives for an accused to enter into a resolution (Natural Persons)

Country Resolution name Requirement to plead guilty

Requirement to accept legal consequences Higher sanctions No full trial guaranties Uncertainty in the outcome

Argentina Abbreviated Procedure (Juicio Abreviado) Yes Yes

Argentina Cooperation Agreement Yes Yes Yes


Austria Diversion


Brazil Cooperation Agreement (Acordo de colaboração premiada) Yes

Brazil Conditional Suspension of the Procedure Yes

Canada Alternative Measures Yes


Chile Conditional Suspension of Proceedings Yes




Costa Rica Declination with Confiscation

Costa Rica Suspension of Proceedings

Costa Rica Shortened proceeding




104 │



Estonia Termination for cooperation Yes




Finland Plea Agreement


Germany Section 153a Yes







Japan Agreement Procedure



Mexico Conditional Suspension of the Process No Yes No No No

Mexico Summary Procedure Yes Yes No No No


Netherlands Punitive Order Yes Yes

│ 105



Netherlands Conditional dismissal Yes Yes





Switzerland Accelerated Proceedings/ Simplified Procedure No


United Kingdom Plea Agreement Yes Yes Yes






United States Administrative Resolutions [SEC] Yes




106 │

Table 35. Maximum and minimum sanctions under resolutions, plus reduction in sanctions (Legal Persons)

Country Resolution name (LP) Rules regarding max./min. sanction?

(Yes/No)

Express legal basis for reduction of

sanction? (Yes/No)

Minimum amount Maximum amount Minimium possible reduction (%)

Maximum possible reduction (%)

Baseline


N/A Yes N/A N/A N/A N/A N/A


Yes Yes Depends on benefit Depends on benefit 50% 50% Minimum amount

Australia Plea Agreement No No N/A Depends on benefit None None None

Austria Diversion Yes No €50 €500,000 None None None


Yes No €50 € 1,000,000 N/A N/A N/A


Yes Yes Depends on turnover

Depends on turnover

None 66% Otherwise applicable sanction


Yes Yes Depends on turnover

Depends on turnover

Depends on turnover Depends on turnover

Otherwise applicable sanction

Canada Plea Agreement Unknown Yes N/A N/A None None None

Canada Remediation Agreement Unknown Yes N/A N/A None None None


Yes No Depends on benefit Depends on benefit Unknown Unknown Varies (based on amount of bribes and profits)


No No Depends on benefit Depends on benefit Unknown Unknown Unknown


No No CZK 20,000 CZK 1,460,000,000 Unknown Unknown Unknown


No N/A N/A N/A N/A N/A N/A


No N/A N/A N/A N/A N/A N/A

Estonia Termination for cooperation No N/A N/A N/A N/A N/A N/A

│ 107


(Yes/No)


sanction? (Yes/No)



Baseline

Estonia Alternative proceedings Yes Yes €3,200.00 €16,000,000.00 Unknown 33% Otherwise applicable sanction

Estonia Summary proceedings Yes Yes €4,000.00 €16,000,000.00 Unknown 33% Otherwise applicable sanction

Estonia Expedited procedure Yes Yes €4,000.00 €16,000,000.00 Unknown 33% Otherwise applicable sanction


Yes No Unknown Depends on turnover

Unknown Unknown Unknown


No No Unknown Unknown Unknown 100% Otherwise applicable sanction

Germany Administrative Resolution Yes No N/A €10,000,000 (offence committed with intent) € 5,000,000 (offence committed with negligently)

N/A N/A N/A

Germany Forfeiture Order N/A N/A N/A N/A N/A N/A N/A

Israel Plea Agreement No No None Depends on benefit Unknown 100% Otherwise applicable sanction

Italy Patteggiamento Yes Yes € 10,000.00 € 1,239,200 Unknown 33% Otherwise applicable sanction

Japan Agreement Procedure No No N/A N/A N/A N/A N/A

Latvia Prosecutor's Penal Order Yes No € 4,300 € 43,000,000 50% 99.99% Maximum amount

Latvia Plea Agreement No No € 4,300 € 43,000,000 Unknown Unknown Unknown


No No N/A N/A N/A N/A N/A

108 │


(Yes/No)


sanction? (Yes/No)



Baseline

Mexico Summary Procedure N/A No A third of the minimum sanction

From one day less of the maximum penalty

One day of the minimum sanction

One third of the minimum penalty

Agreement of the Attorney General of the Republic and jurisdictional criteria.

Netherlands Transaction Yes No € 3 10% of the turnover of the legal entity (needs confirmation)

None None None

Netherlands Punitive Order Yes No € 3 10% of the turnover of the legal entity (needs confirmation)

None None None

Netherlands Conditional dismissal N/A No None N/A None None None

Norway Optional Penalty Writ No Yes None None unknown Unknown Otherwise applicable sanction


Yes Yes Unknown Depends on benefit Unknown Unknown Unknown

South Africa Plea Agreement No No None Depends on benefit Unknown Unknown Unknown

South Africa Consent Orders No No None None Unknown Unknown Unknown

Spain Conformidad No No Depends on benefit Depends on benefit Unknown Unknown Unknown


Yes Yes CHF 1 CHF 5,000,000 None 100% Otherwise applicable sanction

Switzerland Summary Punishment Order Yes yes CHF 1 CHF 5,000,000 None 100% Otherwise applicable sanction


Yes Yes None None 33% 50% Otherwise applicable sanction

United Kingdom Plea Agreement No Yes None None Unknown 33% Otherwise applicable sanction


No No Unknown Unknown Unknown Unknown Unknown

United Kingdom Administrative Order Unknown Unknown Unknown Unknown Unknown Unknown Unknown

│ 109


(Yes/No)


sanction? (Yes/No)



Baseline


Civil Resolution No No Unknown Unknown Unknown Unknown Unknown

United States Plea Agreement (DOJ) Yes No Unknown Depends on benefit Unknown Unknown Low end of sentencing guideline

United States DPA [DOJ]

Yes No Unknown Depends on benefit Unknown 50% Low end of sentencing guideline

United States NPA [DOJ]

Yes No Unknown Depends on benefit Unknown 50% Low end of sentencing guideline


No No Unknown Depends on benefit Unknown 100% Low end of sentencing guideline

United States Civil Resolutions [SEC] Yes No Unknown Depends on benefit Unknown Unknown Unknown


Yes No Unknown Depends on benefit Unknown Unknown Unknown

United States DPA [SEC]

Yes No Unknown Depends on benefit Unknown Unknown Unknown

United States NPA [SEC]

No No Unknown Depends on benefit Unknown Unknown Unknown


110 │

Table 36. Maximum and minimum sanctions under resolutions, plus reduction in sanctions (Natural Persons, prison)


Existence of rules regarding

max./min. sanction? (Yes/No)

Existence of express legal

basis for reduction of sanction? (Yes/No)

Min prison sentence under

resolution (years)

Max prison sentence under

resolution (years)

Any prison sentence?

Min reduction (%) in prison term

Max reduction (%) in prison term

Baseline for prison term reduction

(resolution)

Argentina Abbreviated Procedure (Juicio Abreviado) Yes Unknown 1 6 Yes Unknown Unknown Unknown

Argentina Cooperation Agreement Yes Yes Unknown Unknown Unknown Unknown Unknown Unknown

Australia Plea Agreement No No None 10 Yes Unknown Unknown Unknown

Austria Diversion Yes No N/A N/A No 100% 100% Unknown


Yes No N/A N/A No 100% 100% Maximum amount


Yes Yes 1 8 Yes Unknown 100% Otherwise applicable sanction

Brazil Conditional Suspension of the Procedure Yes Yes 0 0 No N/A 100% Otherwise applicable

sanction

Canada Alternative Measures Unknown Yes N/A N/A No N/A N/A N/A

Canada Plea Agreement Unknown Yes N/A N/A Yes None None None

Chile Conditional Suspension of Proceedings Yes No Unknown Unknown Unknown Unknown Unknown Unknown

Chile Expedited Procedure/Summary Procedure Yes No 0.25 5 Yes Unknown Unknown Maximum amount


No Unknown N/A N/A No N/A N/A N/A

│ 111







resolution (years)


resolution (years)





(resolution)

Colombia Preliminary agreement (Preacuerdo) No Yes 4.5 15 Yes Unknown 50% Otherwise applicable

sanction

Costa Rica Declination with Confiscation Yes Yes 2 10 Yes Unknown 33% Minimum amount

Costa Rica Suspension of Proceedings Yes Yes 2 10 Yes Unknown 33% Minimum amount

Costa Rica Shortened proceeding Yes Yes 2 10 Yes Unknown 33% Minimum amount

Czech Republic Agreement on Guilt and Punishment (AGP) No No Unknown Unknown Unknown Unknown Unknown Unknown

Estonia Termination for lack of public interest No No N/A N/A No N/A N/A N/A

Estonia Termination for lack of proportionality No No N/A N/A No N/A N/A N/A

Estonia Termination for cooperation No No N/A N/A No N/A N/A N/A

Estonia Alternative proceedings Yes Yes Unknown Unknown Unknown Unknown Unknown Unknown

Estonia Summary proceedings Yes Yes Unknown Unknown Unknown Unknown Unknown Unknown

Estonia Expedited procedure Yes Yes Unknown Unknown Unknown Unknown Unknown Unknown

Finland Plea Agreement Yes No 0.33 2.7 Yes 33% 100% Maximum amount


Yes No None 1 Yes 50% 90% Otherwise applicable sanction

Germany Section 153a Yes No N/A N/A No 100% 100% 100%

Germany Negotiated Agreement Yes No 0.25 10 Yes Unknown Unknown Otherwise applicable sanction

112 │







resolution (years)


resolution (years)





(resolution)

Germany Penal Order Yes No None 1 Yes Unknown 100% Otherwise applicable sanction

Hungary Resolution about the Admission of Guilt No Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Hungary Possibility of Avoidance of criminal liability N/A N/A N/A N/A No 100% 100% Otherwise applicable

sanction

Israel Plea Agreement No No Unknown 7 Yes Unknown Unknown Otherwise applicable sanction

Italy Patteggiamento No Yes 0.5 5 Yes Unknown 33% Otherwise applicable sanction

Japan Agreement Procedure No No N/A N/A Unknown N/A N/A N/A

Latvia Prosecutor's Penal Order Yes No N/A N/A No 100% 100% Otherwise applicable sanction

Latvia Plea Agreement No No Unknown Unknown Unknown Unknown Unknown Unknown

Mexico Conditional Suspension of the Process No No N/A N/A N/A N/A N/A N/A

Mexico Summary Procedure Yes Yes A third of the minimum penalty

From one day less than the maximum penalty

No No No

The penalty is imposed within the margin of punishability previously mentioned, taking into aacount the specific conditions of the accused and the form of commission of the illicit act.

Netherlands Transaction Yes No N/A N/A No N/A N/A N/A

Netherlands Punitive Order Yes No N/A N/A No N/A N/A N/A

Netherlands Conditional dismissal Yes No N/A N/A No N/A N/A N/A

│ 113







resolution (years)


resolution (years)





(resolution)

Norway Optional Penalty Writ Yes Yes N/A N/A No 100% 100% Otherwise applicable sanction

Slovenia Agreement on the Confession of Guilt Yes Yes 0.5 5 Yes Unknown Unknown Unknown

South Africa Plea Agreement No No Unknown Life Yes Unknown Unknown Unknown

Spain Conformidad No No 2 6 Yes Unknown Unknown Otherwise applicable sanction

Switzerland Accelerated Proceedings/ Simplified Procedure Yes Yes 3 days 5 Yes None 100% Otherwise applicable

sanction

Switzerland Summary Punishment Order Yes Yes 3 days 0.5 Yes Nonen 100% Otherwise applicable sanction

United Kingdom Plea Agreement Yes Yes None 10 Yes Unknown 33% Otherwise applicable sanction


N/A N/A N/A N/A N/A N/A N/A N/A

United States Plea Agreement Yes No None 5 Yes Unknown Unknown Unknown

United States DPA [DOJ] Yes No N/A N/A No Unknown Unknown Unknown

United States NPA [DOJ] Yes No Unknown Unknown Unknown Unknown Unknown Unknown

United States Civil Resolutions [SEC] Yes No N/A N/A No N/A N/A N/A

United States Administrative Resolutions [SEC] Yes No N/A N/A No N/A N/A N/A

United States DPA [SEC] Yes No N/A N/A No Unknown Unknown Unknown

United States NPA [SEC] No No N/A N/A No Unknown Unknown Unknown


114 │

Table 37. Maximum and minimum sanctions under resolutions, plus reduction in sanctions (Natural Persons, fine)

Country Resolution name (NP) Existence of rules

regarding max./min. sanction? (Yes/No)

Existence of express

legal basis for reduction of sanction?

(Yes/No)

Minimum monetary sanction

Maximum monetary sanction

Minimum fine (standardised)

Max fine (standardised)

Min reduction (%) in monetary

sanction

Max reduction (%) in monetary

sanction

Baseline for monetary reduction

(resolution)


Yes Unknown None ARS 90,000 None Statutory maximum Unknown Unknown Unknown

Argentina Cooperation Agreement Yes Yes None ARS 90,000 None Statutory maximum Unknown Unknown Unknown

Australia Plea Agreement No No None AUD 2,100,000 None Statutory maximum Unknown Unknown Unknown

Austria Diversion Yes No €4 € 900,000 Statutory minimum

Statutory maximum 50% Unknown Maximum amount


Yes No €4 € 1,800,000 Statutory minimum

Statutory maximum Unknown Unknown Maximum amount


Yes Yes BRL 310 BRL 1,672,200 Statutory minimum

Statutory maximum 0% 100% Otherwise applicable sanction


Yes No 0 Variable (Full reparation)

Statutory minimum

Statutory maximum N/A N/A Otherwise applicable sanction

Canada Alternative Measures Unknown Yes Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Canada Plea Agreement Unknown Yes N/A N/A N/A N/A None None None


Yes No Unknown Unknown Unknown Unknown Unknown Unknown Unknown


Yes No Unknown Unknown Unknown Unknown Unknown Unknown Unknown


No Unknown N/A N/A N/A N/A N/A N/A N/A

│ 115





(Yes/No)






sanction


sanction


(resolution)


No Yes COP 43,033,490 COP 172,133,960 Statutory minimum

Statutory maximum Unknown 50% Otherwise applicable sanction


Yes Yes N/A N/A N/A N/A N/A N/A N/A

Costa Rica Suspension of Proceedings Yes Yes N/A N/A N/A N/A N/A N/A N/A

Costa Rica Shortened proceeding Yes Yes N/A N/A N/A N/A N/A N/A N/A


No No CZK 2,000.00 CZK 36,500,000.00 Statutory minimum

Statutory maximum Unknown Unknown Unknown


No No N/A N/A N/A N/A N/A N/A N/A



Estonia Termination for cooperation No No N/A N/A N/A N/A N/A N/A N/A

Estonia Alternative proceedings Yes Yes €300 Depends on income Unknown Unknown Unknown Unknown Unknown

Estonia Summary proceedings Yes Yes €300 Depends on income Unknown Unknown Unknown Unknown Unknown

Estonia Expedited procedure Yes Yes €300 Depends on income Unknown Unknown Unknown Unknown Unknown

Finland Plea Agreement Yes No Depends on income

Depends on income Income Income 33% 99% Maximum amount


Yes No None €150,000 None Statutory maximum Unknown Unknown Otherwise applicable sanction

Germany Section 153a Yes No Depends on income

€10,800,000 Income Statutory maximum Unknown Unknown Otherwise applicable sanction

Germany Negotiated Agreement Yes No Depends on income

€10,800,000 Income Statutory maximum Unknown Unknown Otherwise applicable sanction

Germany Penal Order Yes No Depends on income

€ 10,800,000 Income Statutory maximum Unknown Unknown Otherwise applicable sanction

116 │





(Yes/No)






sanction


sanction


(resolution)


No Unknown HUF 75,000.00 HUF 108,000,000.00

Statutory minimum

Statutory maximum Unknown Unknown Unknown


N/A N/A N/A N/A N/A N/A 100% N/A Otherwise applicable sanction

Israel Plea Agreement No No Unknown Depends on benefit Unknown Benefit Unknown Unknown Otherwise applicable sanction

Italy Patteggiamento No Yes N/A N/A N/A N/A N/A N/A N/A

Japan Agreement Procedure No No N/A N/A N/A N/A N/A N/A N/A

Latvia Prosecutor's Penal Order Yes No €1,290 €86,000 Statutory minimum

Statutory maximum 50% 99% Maximum amount

Latvia Plea Agreement No No €1,290 €172,000 Statutory minimum

Statutory maximum Unknown Unknown



Mexico Summary Procedure Yes Yes 100 Measure Units in force in the date of the commision of the offense

150 Measure Units in force in the date of the commision of the offense

N/A N/A One day. A third of the minimum penalty

Agreement of the Attorney General and jurisdictional criteria

Netherlands Transaction Yes No € 3 € 83,000 Statutory minimum

Statutory maximum None None None

Netherlands Punitive Order Yes No € 3 € 83,000 Statutory minimum


Netherlands Conditional dismissal N/A No None N/A Statutory minimum


Norway Optional Penalty Writ No Yes None None None None Unknown Unknown Otherwise applicable sanction


Yes Yes Unknown €1,500,000 Unknown Statutory maximum Unknown Unknown Unknown

South Africa Plea Agreement No No None Depends on benefit None Benefit Unknown Unknown Unknown

│ 117





(Yes/No)






sanction


sanction


(resolution)

Spain Conformidad No No €720 Depends on benefit Statutory minimum

Benefit Unknown Unknown Otherwise applicable sanction


Yes Yes CHF 30.00 CHF 540,000.00 Statutory minimum

Statutory maximum None 100% Otherwise applicable sanction


Yes Yes CHF 30.00 CHF 540,000.00 Statutory minimum

Statutory maximum None 100% Otherwise applicable sanction

United Kingdom Plea Agreement Yes Yes Sentencing guidelines

Sentencing guidelines



Unknown 33% Otherwise applicable sanction


No No Unknown Unknown Unknown Unknown Unknown Unknown Unknown

United States Plea Agreement Yes No None Depends on benefit None Benefit Unknown Unknown Unknown

United States DPA [DOJ] Yes No None Depends on benefit None Benefit Unknown Unknown Unknown

United States NPA [DOJ] Yes No None Depends on benefit None Benefit Unknown Unknown Unknown

United States Civil Resolutions [SEC] Yes No None $16,000 None Statutory maximum Unknown Unknown Unknown


Yes No None $16,000 None Statutory maximum Unknown Unknown Unknown

United States DPA [SEC] Yes No None $16,000 None Statutory maximum Unknown Unknown Unknown

United States NPA [SEC] No No N/A N/A None Statutory maximum Unknown Unknown Unknown

Source: Answers to Questions 28 and 29.

118 │

Table 38. Terms that can be included in a resolution (Legal Persons - table 1 of 3)

Country Resolution name Obligation to co-operate in any

ongoing or future investigation

Statement of facts

Admission of guilt Prohibition on

public statements contrary to agreed

facts

Prohibition on contesting facts in subsequent

procedure

Argentina Penalty Exemption (Exención de Pena) No Yes Yes No No Argentina Effective Cooperation Agreement (Acuerdo de

Colaboración Eficaz) No Yes Yes No No

Australia Plea Agreement No Yes Yes No No Austria Diversion No No No No No Austria Withdrawal from Prosecution due to Cooperation with

the Public Prosecutor's Office Yes No No No No

Brazil Leniency Agreement [CGU/AGU] Yes Yes Yes Yes Yes Brazil Leniency Agreement [Prosecution Service] Yes Yes Yes Yes Yes Canada Plea Agreement No Yes Yes No No Canada Remediation Agreement Yes Yes Yes Yes Yes Chile Conditional Suspension of Proceedings No No No No No Chile Expedited Procedure/Summary Procedure No No No No No Czech Republic Agreement on Guilt and Punishment (AGP) No Yes Yes No No Estonia Termination for lack of public interest Yes Yes No No No Estonia Termination for lack of proportionality Yes Yes No No No Estonia Termination for cooperation No No No No No Estonia Alternative proceedings Yes Yes No No No Estonia Summary proceedings Yes Yes No No No Estonia Expedited procedure Yes Yes No No No France Public Interest Judicial Agreement (Convention

Judiciaire d’Intérêt Public - CJIP) No Yes No No No


No Yes Yes No No

Germany Administrative Resolution No No No No No Germany Forfeiture Order No No No No No Israel Plea Agreement Yes Yes Yes Yes No Italy Patteggiamento No No No No No Japan Agreement Procedure Yes Yes No Unknown Unknown

│ 119

Country Resolution name Obligation to co-operate in any

ongoing or future investigation

Statement of facts

Admission of guilt Prohibition on

public statements contrary to agreed

facts

Prohibition on contesting facts in subsequent

procedure

Latvia Prosecutor's Penal Order No Yes No No No Latvia Plea Agreement No Yes No No No Mexico Conditional Suspension of the Process No No No No No Mexico Summary Procedure No Yes Yes No No Netherlands Transaction No No No No No Netherlands Punitive Order No No No No No Netherlands Conditional dismissal No No No No No Norway Optional Penalty Writ No No No No No Slovenia Agreement on the Confession of Guilt No No Yes No No South Africa Plea Agreement Yes Yes Yes No No South Africa Consent Orders Yes No No No No Spain Conformidad No Yes Yes Yes Yes Switzerland Accelerated Proceedings/ Simplified Procedure No Yes No No No Switzerland Summary Punishment Order No Yes No No No United Kingdom Deferred Prosecution Agreement Yes Yes Yes Yes Yes United Kingdom Plea Agreement No No Yes No No United Kingdom Consent Order for Civil Recovery No No No No No United Kingdom Administrative Order No No No No No United Kingdom (Scotland) Civil Resolution No No No No No United States Plea Agreement Yes Yes Yes Yes Yes United States DPA [DOJ] Yes Yes No Yes Yes United States NPA [DOJ] Yes Yes No Yes Yes United States Declination with Disgorgement [DOJ] Yes No No No No United States Civil Resolutions [SEC] Yes Yes No Yes Yes United States Administrative Resolutions [SEC] Yes Yes No Yes Yes United States DPA [SEC] Yes Yes No Yes Yes United States NPA [SEC] Yes Yes No Yes Yes


120 │


Country Resolution name Financial Penalties Confiscation / disgorgement of

proceeds

Direct compensation to

victim(s)

Compensation to victim by charity /

NGO in prosecuting

country

Compensation to victim by charity / NGO in country of

bribed official

Compensation to victim by financing

government program in country

of bribed official

Obligation to co-operate in any ongoing or future investigation


No Yes Yes No No No No


Yes Yes Yes No No No No

Australia Plea Agreement No No No No No No No

Austria Diversion Yes No Yes No No No No


Yes No Yes No No No Yes


Yes Yes Yes No No No Yes



Canada Plea Agreement Yes Yes No No No No No

Canada Remediation Agreement Yes Yes Yes Yes Yes Yes Yes


Yes No Yes Yes No No No


Yes No Yes Yes No No No







Estonia Termination for cooperation Yes Yes No No No No No

Estonia Alternative proceedings Yes Yes Yes No No No Yes

│ 121


proceeds


victim(s)


NGO in prosecuting

country


bribed official



of bribed official


Estonia Summary proceedings Yes Yes Yes No No No Yes

Estonia Expedited procedure Yes Yes Yes No No No Yes




Yes No Yes No No No No

Germany Administrative Resolution Yes Yes No No No No No

Germany Forfeiture Order No Yes No No No No No

Israel Plea Agreement Yes Yes Yes No No No Yes

Italy Patteggiamento Yes Yes No No No No No

Japan Agreement Procedure Yes Yes No No No No Yes

Latvia Prosecutor's Penal Order Yes Yes Yes No No No No

Latvia Plea Agreement Yes Yes Yes No No No No


No Yes Yes No No No No

Mexico Summary Procedure Yes Yes Yes No No No No

Netherlands Transaction Yes Yes Yes Yes No No No

Netherlands Punitive Order Yes Yes Yes Yes No No No

Netherlands Conditional dismissal No Yes Yes Yes No No No

Norway Optional Penalty Writ Yes Yes Yes No No No No


Yes No No No No No No

South Africa Plea Agreement Yes Yes Yes No No No Yes

South Africa Consent Orders Yes Yes Yes No No No Yes

122 │


proceeds


victim(s)


NGO in prosecuting

country


bribed official



of bribed official


Spain Conformidad Yes Yes Yes Yes Yes Yes No



Switzerland Summary Punishment Order Yes Yes Yes No No No No


Yes Yes Yes Yes Yes Yes Yes

United Kingdom Plea Agreement Yes Yes Yes Yes Yes Yes No


No Yes No No No No No

United Kingdom Administrative Order Yes No No No No No No


Civil Resolution No Yes No No No No No

United States Plea Agreement Yes Yes Yes No No No Yes

United States DPA [DOJ] Yes Yes Yes No No No Yes

United States NPA [DOJ] Yes Yes Yes No No No Yes


No Yes No No No No Yes

United States Civil Resolutions [SEC] Yes Yes No No No No Yes


Yes Yes No No No No Yes

United States DPA [SEC] Yes Yes No No No No Yes

United States NPA [SEC] Yes Yes No No No No Yes


│ 123


Country Resolution name (LP) Suspension or Debarment from Public Contracts

Probation

Creating / enhancing

compliance program or internal controls

Independent compliance monitor

Argentina Penalty Exemption (Exención de Pena) No No Yes Yes Argentina Effective Cooperation Agreement (Acuerdo de

Colaboración Eficaz) No No Yes Yes

Australia Plea Agreement No No No No Austria Diversion No Yes No No Austria Withdrawal from Prosecution due to Cooperation with

the Public Prosecutor's Office No No No No

Brazil Leniency Agreement [CGU/AGU] No No Yes No Brazil Leniency Agreement [Prosecution Service] Yes No Yes Yes Canada Plea Agreement No Yes Yes Yes Canada Remediation Agreement No Unknown Yes Yes Chile Conditional Suspension of Proceedings No No Yes Yes Chile Expedited Procedure/Summary Procedure Discretionary No Yes Yes Czech Republic Agreement on Guilt and Punishment (AGP) Discretionary No No No Estonia Termination for lack of public interest No Unknown Yes No Estonia Termination for lack of proportionality No Unknown Yes No Estonia Termination for cooperation No No No No Estonia Alternative proceedings No Unknown Yes No Estonia Summary proceedings No Unknown Yes No Estonia Expedited procedure No Unknown Yes No France Public Interest Judicial Agreement (Convention

Judiciaire d’Intérêt Public - CJIP) No No Yes Yes


No No No No

Germany Administrative Resolution No No No No Germany Forfeiture Order No No No No Israel Plea Agreement Discretionary No Yes Yes Italy Patteggiamento Discretionary No No No Japan Agreement Procedure No No No No Latvia Prosecutor's Penal Order Automatic No No No Latvia Plea Agreement Automatic No No No

124 │

Country Resolution name (LP) Suspension or Debarment from Public Contracts

Probation

Creating / enhancing

compliance program or internal controls

Independent compliance monitor

Mexico Conditional Suspension of the Process Yes No Yes No Mexico Summary Procedure Yes No Yes No Netherlands Transaction No No No No Netherlands Punitive Order No No No Unknown Netherlands Conditional dismissal No Yes Yes Unknown Norway Optional Penalty Writ Automatic No No No Slovenia Agreement on the Confession of Guilt No No No No South Africa Plea Agreement Discretionary No No No South Africa Consent Orders Unknown No No No Spain Conformidad Discretionary No No No Switzerland Accelerated Proceedings/ Simplified Procedure No No No No Switzerland Summary Punishment Order No No No No United Kingdom Deferred Prosecution Agreement Discretionary No Yes Yes United Kingdom Plea Agreement Automatic No Yes Yes United Kingdom Consent Order for Civil Recovery Discretionary No Yes Yes United Kingdom Administrative Order No No No No United Kingdom (Scotland) Civil Resolution No No No No United States Plea Agreement Collateral Yes Yes Yes United States DPA [DOJ] Unknown No Yes Yes United States NPA [DOJ] Unknown Yes Yes Yes United States Declination with Disgorgement [DOJ] Unknown No No No United States Civil Resolutions [SEC] Unknown No Yes Yes United States Administrative Resolutions [SEC] Unknown No Yes Yes United States DPA [SEC] Unknown No Yes Yes United States NPA [SEC] Unknown No Yes Yes


│ 125

Table 41. Terms that can be included in a resolution (Natural Persons - table 1 of 2)

Country Resolution name Statement of facts Recognition of guilt Obligation to co-operate in any ongoing or future

investigation

Prohibition on the suspect/ accused to make public

statements contrary to any agreed facts

Prohibition to contest facts in subsequent procedure


Yes Yes

Argentina Cooperation Agreement Yes Yes


Austria Diversion


Yes


Yes Yes Yes No Yes


No No No No No

Canada Alternative Measures No Yes No No No

Canada Plea Agreement Yes Yes No No No




Yes Yes

Colombia Preliminary agreement (Preacuerdo) Yes Yes Yes

Costa Rica Declination with Confiscation Yes Yes No No No

Costa Rica Suspension of Proceedings Yes Yes No No No

Costa Rica Shortened proceeding Yes Yes No No No


Yes Yes


Yes No Yes No No

126 │


investigation





Yes No Yes No No

Estonia Termination for cooperation Yes No Yes No No

Estonia Alternative proceedings Yes No Yes No No

Estonia Summary proceedings Yes No Yes No No

Estonia Expedited procedure Yes No Yes No No

Finland Plea Agreement Yes Yes


Yes Yes

Germany Section 153a

Germany Negotiated Agreement Yes Yes Yes



Yes Yes Yes


Yes

Israel Plea Agreement Yes Yes Yes Yes


Japan Agreement Procedure Yes No Yes Unknown Unknown

Latvia Prosecutor's Penal Order Yes Yes



No No No No No

Mexico Summary Procedure Yes Yes No No No

Netherlands Transaction No No No No No

Netherlands Punitive Order No No No No No

│ 127


investigation




Netherlands Conditional dismissal No No No No No



Yes

South Africa Plea Agreement Yes Yes Yes

Spain Conformidad Yes Yes No


Yes No

Switzerland Summary Punishment Order Yes


United Kingdom Consent Order for Civil Recovery No No No No No

United States Plea Agreement Yes Yes Yes Yes Yes

United States DPA [DOJ] Yes Yes Yes Yes

United States NPA [DOJ] Yes Yes Yes Yes

United States Civil Resolutions [SEC] Yes Yes Yes Yes

United States Administrative Resolutions [SEC] Yes Yes Yes Yes

United States DPA [SEC] Yes Yes Yes Yes

United States NPA [SEC] Yes Yes Yes Yes


128 │

Table 42. Terms that can be included in a resolution (Natural Persons - table 2 of 2)

Country Resolution name Financial Penalties

Confiscation of proceeds/

disgorgement

Prison sentence

(Suspended / Not

suspended / Both)

Automatic/ Discretionary suspension

and/or debarment of accused from public tender

Compensation to victims?:

direct payment

Compensation to victims?: financing of charity/NGO in

prosecuting country

Compensation to victims?: financing of

charity/NGO in country of

bribed official

Compensation to victims?: financing of government

agency program in country of

bribed official

Compensation to victims?: Recovery to prosecuting

state

Probation / Disqualification


Yes Yes Both Yes

Argentina Cooperation Agreement Yes Yes Both Yes

Australia Plea Agreement

Austria Diversion Yes Yes Yes


Yes Yes


Yes Yes Both Discretionary Yes No No No No Yes


No No No Discretionary Yes No No No No Yes

Canada Alternative Measures No Yes No No No No No No No Unknown

Canada Plea Agreement Yes Yes Both No No No No No No No


Yes Yes

Chile Expedited Procedure/Summary

Yes Both Discretionary Yes Yes

│ 129



disgorgement

Prison sentence

(Suspended / Not

suspended / Both)




direct payment


prosecuting country



bribed official



bribed official


state


Procedure


Yes Yes


Yes Yes Both Automatic Yes


No No Both No Yes No No No Unknown Unknown


No No Both No Yes No No No Unknown Unknown

Costa Rica Shortened proceeding No No Both No Yes No No No Unknown Unknown

Czech Republic


Yes Yes Both Yes Yes


Yes Yes Both No Yes Unknown Unknown Unknown Unknown Unknown





Estonia Alternative proceedings Yes Yes Both No Yes Unknown Unknown Unknown Unknown Unknown

Estonia Summary proceedings Yes Yes Both No Yes Unknown Unknown Unknown Unknown Unknown

130 │



disgorgement

Prison sentence

(Suspended / Not

suspended / Both)




direct payment


prosecuting country



bribed official



bribed official


state


Estonia Expedited procedure Yes Yes Both No Yes Unknown Unknown Unknown Unknown Unknown

Finland Plea Agreement Yes Both


Yes Both Yes

Germany Section 153a Yes Yes Yes Yes Yes

Germany Negotiated Agreement Yes Yes Both Yes Yes Yes

Germany Penal Order Yes Yes Suspended Yes


Yes Both Yes


Yes Yes

Israel Plea Agreement Yes Yes Both Discretionary Yes Yes

Italy Patteggiamento Yes Yes Both Discretionary Yes

Japan Agreement Procedure Yes Yes Both No No No No No No No

Latvia Prosecutor's Penal Order Yes Yes Automatic Yes

│ 131



disgorgement

Prison sentence

(Suspended / Not

suspended / Both)




direct payment


prosecuting country



bribed official



bribed official


state


Latvia Plea Agreement Yes Yes Both Automatic Yes


No Yes No No Yes No No No No No

Mexico Summary Procedure Yes Yes Yes No Yes No No No No Yes

Netherlands Transaction Yes Yes No No Yes No No No

Netherlands Punitive Order Yes Yes No No Yes Yes No No

Netherlands Conditional dismissal No Yes No No Yes Yes No No

Norway Optional Penalty Writ Yes Yes Suspended Yes


Yes Both

South Africa Plea Agreement Yes Yes Both Discretionary Yes

Spain Conformidad Yes Yes Both Automatic Yes


Yes Yes Both Yes


Yes Yes Both Yes

United Kingdom

Plea Agreement Yes Yes Automatic Yes Yes Yes Yes Yes Yes

132 │



disgorgement

Prison sentence

(Suspended / Not

suspended / Both)




direct payment


prosecuting country



bribed official



bribed official


state


United Kingdom

Consent Order for Civil Recovery

No Yes No Discretionnary No No No No No No

United States Plea Agreement Yes Yes Both Collateral Yes Yes

United States DPA [DOJ] Yes Yes Unknown Yes Yes

United States NPA [DOJ] Yes Yes Unknown Yes Yes

United States Civil Resolutions [SEC] Yes Yes Unknown Yes


Yes Yes Unknown Yes

United States DPA [SEC] Yes Yes Unknown

United States NPA [SEC] Yes Yes Unknown


│ 133

Table 43. Differences with trial resolutions (Legal Persons)

Country Resolution name (LP) Existence of differences between resolution/ full trial as to the terms/sanctions that can be imposed Argentina Penalty Exemption

(Exención de Pena) "The sentence/conviction of legal entities might include the suspension of the entity. Its dissolution, and its withdrawal from the government's contractors register."


"The sentence/conviction of legal entities might include the suspension of the entity. Its dissolution, and its withdrawal from the government's contractors register."

Australia Plea Agreement "A full trial could be conducted without an admission of guilt and without an agreed statement of facts. A full trial may also involve prosecution and conviction for additional and/or different offences and therefore a different sentence/penalty may be available."

Austria Diversion Austria Withdrawal from Prosecution

due to Cooperation with the Public Prosecutor's Office


“A full trial can apply different sanctions such as partial suspension or interdiction of activities, or compulsory dissolution of the legal entity.”


The administrative sanctions listed in Law 12846/2013 may also be imposed in court, and may be exempted in the agreement.

Canada Plea Agreemeent Canada Remediation Agreement “Little or no difference, most compliance measures resemble post-conviction sentences or probation terms.

The main difference is that external debarment regimes usually require a conviction.” (Answer to Study Questionnaire)


This form of resolution can impose higher financial penalties than a trial. "The prosecutor accepted the resolution partly because its economic value of USD 2.5 million exceeded the maximum fine that could have been imposed at trial. (this case was a domestic bribery case)." Phase 3 para. 74.





Estonia Termination for cooperation Estonia Alternative proceedings




In a full trial the legal person may be convicted and the conviction will result in a criminal record. The conviction can be taken into account when establishing recidivism.


Germany Administrative Resolution Germany Forfeiture Order Israel Plea Agreement "A resolution can include provisions that stem from the agreement between the parties. If the parties agree

that the defendant will take upon him or herself a term that the court has no authority to impose in the specific situation, the defendant's commitment is before the prosecutor and not the court."

Italy Patteggiamento Existence of express legal basis for reduction of sanction if suspect/accused enters into resolution (reduction of 1/3 of penalty handed out by court). "By virtue of art. 445, para 1 bis, of the Italian Code, the penalty is regarded as 'comparable to a judgment of guilty', but it does not have the same effects and the same significances as, e.g., it does not entail the payment of trial expenses or the application of accessory penalties or the registration of the sentence in the criminal record of the accused. Moreover, art. 445, para 1bis, provides that the sentence pronounced after 'patteggiamento' cannot be used in civil or administrative proceedings." Silvia D'Ascoli, Sentencing in International Criminal Law (Hart Publishing, 2011)

Japan Agreement Procedure No difference Latvia Prosecutor's Penal Order Latvia Plea Agreement

134 │

Country Resolution name (LP) Existence of differences between resolution/ full trial as to the terms/sanctions that can be imposed Mexico Conditional Suspension of

the Process “The conditional suspension of the process is the approach formulated by the Public Prosecutor's Office or by the accused, which will contain a detailed plan on the payment of compensation for the damage and submission of the accused to one or more of the conditions referred to in this Chapter, which ensure an effective protection of the rights of the victim or offended and that if fulfilled, may result in the extinction of the criminal action and the corresponding dismissal of the process.” (Answer to the Study Questionnaire)

Mexico Summary Procedure “The sanctions to be imposed and the way in which the judge will solve a summary procedure has the same consequences that in an ordinary procedure, except that there is no oral trial and for the issuing of the sentence are taken as basis the evidence data that was obtained during the investigation stage. It should be noted that in the ordinary procedure the margin of punishability is the one provided by the criminal type, without decrease.” (Answer to the Study Questionnaire) [

Netherlands Transaction No conditional sanctions available. Netherlands Punitive Order No conditional sanctions available.

"The punitive order is currently not yet used for cases in which deprivation

is sought." Netherlands Conditional dismissal Norway Optional Penalty Writ "In a full trial the judge would have a wider range of sanctions than in the context of an optional penalty writ,

and could for instance impose loss of rights." Slovenia Agreement on the

Confession of Guilt

South Africa Plea Agreement No difference South Africa Consent Orders Spain Conformidad No difference Switzerland Accelerated Proceedings/

Simplified Procedure No difference

Switzerland Summary Punishment Order No difference United Kingdom Deferred Prosecution

Agreement "Only a company et al may enter a DPA and therefore there is no full trial with conviction equivalent. Prosecutions against individuals may proceed, despite a DPA."

United Kingdom Plea Agreement Reduced sentence United Kingdom Consent Order for Civil

Recovery As a financial penalty only disgorgement can be imposed. The company can also 'voluntarily agree to introduce certain compliance systems and to submit these to a form of external monitoring for an agreed period. (Phase 2 bis para. 91)

United Kingdom Administrative Order Reduced penalty United Kingdom (Scotland)

Civil Resolution As a financial penalty only disgorgement can be imposed.

United States Plea Agreement "None." United States DPA [DOJ] "None." United States NPA [DOJ] "None." United States Declination with

Disgorgement of Profits [DOJ]

Only disgorgement can be imposed

United States Civil Resolutions [SEC] "None." United States Administrative Resolutions

[SEC] "None."

United States DPA [SEC] "None." United States NPA [SEC] "None."


│ 135

Table 44. Differences with trial resolutions (Natural Persons)

Country Resolution name (NP) Existence of differences between resolution/ full trial as to the terms/sanctions that can be imposed


Argentina Cooperation Agreement

Australia Plea Agreement "A full trial could be conducted without an admission of guilt and without an agreed statement of facts. A full trial may also involve prosecution and conviction for additional and/or different offences and therefore a different sentence/penalty may be available."

Austria Diversion "Conviction can lead to prison sentence."


"Conviction can lead to prison sentence."


Brazil Conditional Suspension of the Procedure Procedure is suspended with no prison time imposed, subject to conditions.

Canada Alternative Measures Canada Plea Agreement




Resolution provides for exemption of penalty in certain cases if victims have received full compensation.

Colombia Preliminary agreement (Preacuerdo) Higher sanctions.



Costa Rica Shortened proceeding








Finland Plea Agreement Other than the fact that the sanctions for the charges will be reduced there does not seem to be any significant difference.


Germany Section 153a Only limited conditions can be imposed.

Germany Negotiated Agreement

"In practice, if a confession is intended to be made, the court will propose an upper and lower limit, between which the sentence it will subsequently impose will lie. It is not permissible to promise an exact sentence. There is no legal requirement to state what the upper limit of the sentence would be if no confession were made; in practice, however, this is frequently discussed. In this regard, care must be taken to prevent any impermissible gap between two penalties imposable under two different sets of circumstances (i.e. diverging legal consequences depending on whether a confession is made or not)." Phase 4 questionnaire p. 103-104

Germany Penal Order Limited sanctions available, existence of rules regarding max/min sanctions.


"In a full trial all of these elements have to be fully proved and scrutinized and the imposed sanctions are fully up to the deliberation of the judge."


Israel Plea Agreement "A resolution can include provisions that stem from the agreement between the parties. If the parties agree that the defendant will take upon him or herself a term that the court has no authority to impose in the specific situation, the defendant's commitment is before the prosecutor and not the court."

136 │

Country Resolution name (NP) Existence of differences between resolution/ full trial as to the terms/sanctions that can be imposed


Existence of express legal basis for reduction of sanction if suspect/accused enters into resolution (reduction of 1/3 of penalty handed out by court). "By virtue of art. 445, para 1 bis, of the Italian Code, the penalty is regarded as 'comparable to a judgment of guilty', but it does not have the same effects and the same significances as, e.g., it does not entail the payment of trial expenses or the application of accessory penalties or the registration of the sentence in the criminal record of the accused. Moreover, art. 445, para 1bis, provides that the sentence pronounced after 'patteggiamento' cannot be used in civil or administrative proceedings." Silvia D'Ascoli, Sentencing in International Criminal Law (Hart Publishing, 2011)

Japan Agreement Procedure No difference Latvia Prosecutor's Penal Order



“The conditional suspension of the process is the approach formulated by the Public Prosecutor's Office or by the accused, which will contain a detailed plan on the payment of compensation for the damage and submission of the accused to one or more of the conditions referred to in this Chapter, which ensure an effective protection of the rights of the victim or offended and that if fulfilled, may result in the extinction of the criminal action and the corresponding dismissal of the process.” (Answer to the Study Questionnaire)


“The sanctions to be imposed and the way in which the judge will solve a summary procedure has the same consequences that in an ordinary procedure, except that there is no oral trial and for the issuing of the sentence are taken as basis the evidence data that was obtained during the investigation stage. It should be noted that in the ordinary procedure the margin of punishability is the one provided by the criminal type, without decrease.” (Answer to the Study Questionnaire)

Netherlands Transaction No conditional sanctions available. Penalties cannot include custodial sentences, as these sanctions can only be imposed by a judge.

Netherlands Punitive Order No conditional sanctions available. Penalties cannot include custodial sentences, as these sanctions can only be imposed by a judge.

Netherlands Conditional dismissal

Norway Optional Penalty Writ "In a full trial the judge would have a wider range of sanctions than in the context of a penalty writ, and could for instance impose prison sanctions and loss of rights."

Slovenia Agreement on the Confession of Guilt [Waiting for input (translated legislation)]

South Africa Plea Agreement "No difference." Spain Conformidad No difference

Switzerland Accelerated Proceedings/ Simplified Procedure No difference, but prison sentence cannot be longer than 5 years.(See Answer to Question 28).

Switzerland Summary Punishment Order No difference for fines and monetary penalties, but prison sanctions are limited to no more than 6 months

United Kingdom Plea Agreement Reduced sentence United Kingdom Consent Order for Civil

Recovery As a financial penalty only disgorgement can be imposed.

United States Plea Agreement No difference United States DPA [DOJ] No difference United States NPA [DOJ] No difference United States Civil Resolutions [SEC] "None."

United States Administrative Resolutions [SEC] "None."

United States DPA [SEC] "None." United States NPA [SEC] "None."


│ 137

Table 45. Factors affecting determination of sanctions or terms of resolution (Legal Persons)

Country

Resolution name Self-report Admit guilt Admit facts Cooperate Information on

others Waiver of privilege

Pre-existing compliance

system

Remediate after discovery

Source of Factors used: Legal basis / Formal

Policy / Practice Argentina Penalty Exemption (Exención de

pena) N/A N/A N/A N/A N/A N/A N/A N/A Unknown

Argentina Effective cooperation agreement (Acuerdo de colaboración eficaz)

No No Yes Yes Yes No Yes Yes Legal basis

Australia Plea Agreement Yes Yes Yes Yes Yes Yes Yes Yes Mix of Legal basis and Formal policy

Austria Diversion No No No No No No No Yes Legal basis


Yes Yes Yes Yes Yes No No No Legal basis

Brazil Leniency agreement [CGU/AGU] Yes No No Yes Yes No Yes Yes Legal basis

Brazil Leniency agreement [Prosecution Service]

Yes No No Yes Yes No Yes Yes Practice

Canada Plea Agreement Yes Yes Yes Yes Yes Yes Yes Yes Practice

Canada Remediation Agreement Yes Yes Yes Yes Yes Yes Yes Yes Legal basis

Chile Conditional suspension of proceedings

Yes Yes Yes Yes Yes No No No Mix of Legal basis and Practice

Chile Expedited procedure/Summary procedure

Yes Yes Yes Yes Yes No No No Mix of Legal basis and Practice


Yes Yes Yes Yes Yes No No Yes Legal basis


No No No No No No No No Unknown


No No No No No No No No Unknown

Estonia Alternative proceedings No No No No No No No No Legal basis

Estonia Termination for cooperation No No No No No No No No Unknown

Estonia Summary proceedings No No No No No No No No Legal basis

138 │

Country




system



Policy / Practice Estonia Expedited procedure No No No No No No No No Legal basis


Yes Yes Yes Yes No No Yes Yes Formal policy


Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Legal basis

Germany Administrative Resolution Yes No Yes Yes No No Yes Yes Practice

Germany Forfeiture Order Yes No Yes Yes No No Yes Yes Practice

Israel Plea agreement Yes Yes Yes Yes Yes Yes Yes Yes Formal policy

Italy Patteggiamento No No No No No No No Yes Legal basis

Japan Agreement Procedure Unknown Unknown Unknown Yes Yes Unknown Unknown Unknown Practice

Latvia Plea agreement Yes Yes Yes Yes Yes Yes Yes Yes Mix of Legal basis and Practice

Latvia Prosecutor's penal order Yes Yes Yes Yes Yes Yes Yes Yes Mix of Legal basis and Practice


No No No No No No Yes Yes Legal basis

Mexico Summary Procedure No Yes Yes Yes Yes Yes No Yes Legal basis

Netherlands Transaction Yes Yes Yes Yes Yes No Yes Yes Practice

Netherlands Punitive Order Yes Yes Yes Yes Yes No Yes Yes Practice

Netherlands Conditional dismissal Yes Yes Yes Yes Yes No Yes Yes Practice

Norway Optional Penalty Writ Yes Yes Yes Yes Yes No Yes Yes Mix of Legal basis and Formal policy


No Yes No Yes Yes No No No Legal basis

South Africa Plea agreement Yes Yes Yes Yes Yes Yes Yes Yes Legal basis

│ 139

Country




system



Policy / Practice South Africa Consent Orders Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Spain Conformidad Yes Yes Yes Yes Yes No Yes Yes Mix of Legal basis and Practice


Yes Yes Yes Yes Yes No Yes Yes Mix of Legal basis and Practice

Switzerland Summary punishment order Yes Yes Yes Yes Yes No Yes Yes Mix of Legal basis and Practice

United Kingdom Deferred Prosecution Agreement Yes No Yes Yes Yes Yes Yes Yes Mix of Legal basis and Formal policy

United Kingdom Plea Agreement No No No Yes No No No No Mix of Legal basis and Formal Practice

United Kingdom Consent Order for Civil Recovery Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

United Kingdom Administrative Order No No No Yes No No No No Unknown


Civil resolution Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

United States Plea Agreement Yes Yes Yes Yes Yes No Yes Yes Mix of Legal basis and Formal policy

United States DPA (DOJ) Yes Yes Yes Yes Yes No Yes Yes Mix of Legal basis and Formal policy

United States NPA (DOJ) Yes Yes Yes Yes Yes No Yes Yes Mix of Legal basis and Formal policy

United States Declination with disgorgement of profits (DOJ)

Yes No Yes Yes Yes No Yes Yes Formal policy

United States Civil resolutions (SEC) Yes No Yes Yes Yes No Yes Yes Formal policy

United States Administrative resolutions (SEC) Yes No Yes Yes Yes No Yes Yes Formal policy

United States DPA (SEC) Yes No Yes Yes Yes No Yes Yes Mix of Legal basis and Formal policy

United States NPA (SEC) Yes No Yes Yes Yes No Yes Yes Mix of Legal basis and Formal policy


140 │

Table 46. Factors affecting determination of sanction or terms of resolution (Natural Persons)

Country (*) Resolution name Self-report Admit guilt Admit facts Cooperate Information on others

Waiver of privilege


Source of Factors used: Legal basis / Formal Policy /

Practice Argentina Abbreviated Procedure (Juicio

abreviado) No No Yes Yes Yes No No Legal basis

Argentina Reduction of sentence in cases of cooperation (Cooperation Agreement)

No No Yes Yes Yes No No Legal basis

Australia Plea Agreement Yes Yes Yes Yes Yes Yes Yes Mix of Legal basis and Formal policy

Austria Diversion Yes Yes Yes Yes Yes Yes Yes Practice


Yes Yes Yes Yes Yes No No Legal basis

Brazil Cooperation Agreement (“Acordo de Colaboração Premiada”)

Yes Yes Yes Yes Yes No No Mix of Legal basis and Practice

Brazil Plea Bargaining No No No No No No Yes Legal basis

Canada Alternative Measures Yes Yes Yes Yes Yes Yes Yes Mix of Legal basis and Practice

Canada Plea Agreement Yes Yes Yes Yes Yes Yes Yes Practice

Chile Conditional suspension of proceedings


Chile Expedited procedure/Summary procedure



No No Yes Yes Yes No No Legal basis

Colombia (*) Preliminary agreement (preacuerdo)

No Yes Yes Yes Yes No No Mix of Legal basis and Practice

Costa Rica Declination with Confiscation No Yes Yes Yes No No No Legal basis

Costa Rica Suspension of Proceedings No Yes Yes Yes No No No Unknown

Costa Rica Shortened proceeding No Yes Yes Yes No No No Unknown

Czech Republic Agreement on Guilt and Yes Yes Yes Yes Yes No Yes Legal basis

│ 141


Waiver of privilege



Practice Punishment (AGP)


No No No No No No No /Unknown


No No No No No No No Unknown

Estonia Termination for cooperation No No No No No No No Unknown

Estonia Alternative proceedings No No No No No No No Legal basis

Estonia Summary proceedings No No No No No No No Legal basis

Estonia Expedited procedure No No No No No No No Legal basis

Finland (*) Plea Agreement Yes Yes Yes Yes No No Yes Mix of Legal basis and Practice

France Guilty Plea (comparution sur reconnaissance préalable de culpabilité - CRPC)

Yes No No No No No No Legal basis

Germany Section 153a Yes Yes Yes Yes Yes No Yes Legal basis

Germany Negotiated agreement Yes Yes Yes Yes Yes No Yes Legal basis

Germany Penal Order Yes Yes Yes Yes Yes No Yes Practice

Hungary Possibility of avoidance of the criminal liability (Termination of the investigation without prosecution)

N/A N/A N/A N/A N/A N/A N/A N/A

Hungary (*) resolution about the admission of guilt

Yes Yes Yes Yes No No Yes Practice

Israel Plea agreement Yes Yes Yes Yes Yes Yes Yes Formal Policy

Italy Patteggiamento No No No No No No Yes Legal basis

Japan Agreement Procedure Unknown Unknown Unknown Yes Yes Unknown Unknown Practice

Latvia Prosecutor's penal order Yes Yes Yes Yes Yes Yes Yes Mix of Legal basis and Practice

Latvia Plea agreement Yes Yes Yes Yes Yes Yes Yes Mix of Legal basis and Practice


No No No No No No Yes Legal basis

142 │


Waiver of privilege



Practice Mexico Summary Procedure No Yes Yes Yes Yes Yes No Legal basis

Netherlands Transaction Yes Yes Yes Yes Yes No Yes Practice

Netherlands Punitive Order Yes Yes Yes Yes Yes No Yes Practice

Netherlands Conditional dismissal Yes Yes Yes Yes Yes No Yes Practice

Norway Optional Penalty Writ Yes Yes Yes Yes Yes No Yes Mix of Legal basis and Formal Policy


No Yes No Yes Yes No No Legal basis

South Africa Plea agreement Yes Yes Yes Yes Yes Yes Yes Legal basis

Spain Conformidad Yes Yes Yes Yes Yes No Yes Mix of Legal basis and Practice


Yes Yes Yes Yes Yes No Yes Mix of Legal basis and Practice

Switzerland Summary punishment order Yes Yes Yes Yes Yes No Yes Mix of Legal basis and Practice

United Kingdom Plea Agreement No Yes Yes Yes Yes No No Mix of Legal basis and Practice


Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

United States Plea Agreement Yes Yes Yes Yes Yes No Yes Mix of Legal basis and Formal Policy

United States DPA (DOJ) Yes Yes Yes Yes Yes No Yes Mix of Legal basis and Formal Policy

United States NPA (DOJ) Yes Yes Yes Yes Yes No Yes Mix of Legal basis and Formal Policy

United States Civil resolutions (SEC) Yes No Yes Yes Yes No Yes Formal Policy

United States Administrative resolutions (SEC)

Yes No Yes Yes Yes No Yes Formal Policy

United States DPA (SEC) Yes No Yes Yes Yes No Yes Mix of Legal basis and Formal Policy

United States NPA (SEC) Yes No Yes Yes Yes No Yes Mix of Legal basis and Formal Policy


│ 143

Table 47. Fine and confiscation (Legal Persons)

Country Resolution name (LP) Resolution can impose: Only fine, only confiscation,

both fine and confiscation, Either fine or confiscation

as alternative

Resolution can impose

confiscation without fine?

(Always / Sometimes / No)

Resolution can impose fine

without confiscation

(Always / Sometimes /

No)

Is confiscation amount clearly

specified ? (Yes / No /

Sometimes)

Additional Information


Confiscation Always No Yes Proceeding results in penalty exemption. The criteria need to be met simultaneously "a) It [the legal entity] spontaneously reports a crime punished under this law as a result of its own detection or internal investigation; b) It has implemented an appropriate control and surveillance system, as set forth in sections 22 and 23 hereof, before the prosecuted crime was committed, the breach of which would have required an effort by the perpetrators of the crime; c) It has returned any undue benefits obtained." Law 27.401, art. 9


Both No No No

Australia Plea Agreement Fine No Always N/A "Charge negotiations allow a resolution option for criminal matters. In Australia, mandatory confiscation or disgorgement of proceeds of crime occurs through civil (and not criminal) proceedings under the POC Act. Because these proceedings are civil in nature, they cannot be settled through charge negotiations." (Answer to Study Questionnaire)

Austria Diversion Confiscation Always No Yes Other: One of the forms of diversion is "the payment of a sum of money" VbVG para.19(1). This is not a fine (Verbandsgeldbuße) but a "sum of money" (Geldbetrag). "Independent procedure pursuant to CCP para. 445 and 445a: Apart from the final court judgment following the main trial against the accused persons, a court can decide on forfeiture (ACC art. 20), extended forfeiture (ACC art. 20b), redemption (ACC art. 26) or any other offence-related property order in an independent procedure if it is evident that the conditions for the offence-related property order are met but a decision cannot be in the course of criminal prosecutions (i.e. when diversional was applied)." (Answer to Study Questionnaire)


Confiscation Always No Yes


Both No Sometimes Sometimes "They are however concerned that these measures are not available in all cases and they recommend that Brazil review its legislation to ensure that the confiscation of the proceeds of

144 │



as alternative







No)



Sometimes)


foreign bribery is always available, including in the case of successor companies, companies held jointly liable, and when concluding leniency agreements with cooperative offenders."(WGB Phase 3 report, Commentary p. 31) "For leniency agreements under Law 12,846/2013 fines are mandatory." Amount confiscated can be distinguished but not always. (Answer to Study Questionnaire)


Both Sometimes Sometimes Sometimes A monitory penaly is mandatory. The amount confiscated can be distinguished but not always. Does this apply to leniency agreements or is a fine mandatory here as well? .

Canada Plea Agreement Both No Sometimes Yes “A financial penalty and confiscation is available after a plea agreement.”(Answer to Study Questionnaire)

Canada Remediation Agreement

Both No Sometimes Yes “A remediation agreement requires a fine in all cases.” (Answer to Study Questionnaire)


Fine No Always N/A


Fine No Always N/A


Alternative Sometimes Sometimes Yes "Where the criminal law stipulates multiple penalties for certain criminal offences, such penalties may be imposed consecutively or concurrently. However, the punishment of monetary penalty may not be imposed concurrently with the confiscation of assets. Section 15 para 3 of CLLE." (Answer to Study Questionnaire)


Both No Sometimes Yes







Estonia Summary proceedings Both No Sometimes Yes

│ 145



as alternative







No)



Sometimes)


Estonia Expedited procedure Both No Sometimes Yes


Both No No Yes


Fine No Always N/A

Germany Administrative Resolution

Both Unknown Sometimes Yes “The representatives of the LPs can provide a calculation but the last decision is up to the prosecutor or the court.”

Germany Forfeiture Order Confiscation Always No Yes

Israel Plea Agreement Both Sometimes Sometimes Yes

Italy Patteggiamento Both Sometimes Sometimes Yes "The law leaves the choice to prosecutors about the applicable sanction, but this has to be evaluated by the Judge as effective, proportionate and dissuasive."; "As concerns legal persons, under article 19.1 of LD 231/2001, “the confiscation of the price or the proceeds of the offence, apart from the portion which may be given back to the damaged person, shall always be ordered against the body” [emphasis added]. Thus, imposition of confiscation measures for foreign bribery offences is generally mandatory against legal persons. However, of the three legal persons that have been sanctioned in Italy, only one was subject to confiscation." (Phase 3 Report by the WGB, para.74)

Japan Agreement Procedure Both No Sometimes Unknown


Both Sometimes Sometimes Yes "According to section 70(11) of the Criminal Law the criminally acquired property, proceeds of crime which the person has obtained from the disposal of such property, and also the yield received as a result of the use of the criminally acquired property shall be confiscated, unless it must be returned to the owner or legal possessor. But it is not considered as a sanction. According to section 356 of the Criminal Procedure Law property (proceeds) may be recognised

Latvia Plea Agreement Both Sometimes Sometimes Yes

146 │



as alternative







No)



Sometimes)


as criminally acquired by a court ruling that has entered into effect (e.g. plea agreement), or by a decision of a public prosecutor to terminate criminal proceedings (e.g. prosecutor's penal order). According to section 42 of the Criminal Law confiscation of property (legally obtained property) is a criminal sanction but according to section 36 confiscation of property cannot be imposed by a prosecutor's penal order." (Answer to Study Questionnaire)


Confiscation Always No Yes The instrument, object or proceed of a crime can be forfeited.

Mexico Summary Procedure Both No Sometimes Yes The instrument, object or proceed of a crime can be forfeited.

Netherlands Transaction Both Sometimes Sometimes Yes "This can be done in the settlement under article 74 of the Dutch penal code but also the public prosecutor may on the basis of article 511c of the Criminal procedure code, as long as the court hearing has not been closed, enter into a written out-of-court settlement with the suspect or convicted offender for payment of a sum of money to the State or transfer of objects for deprivation, in whole or in part, of unlawfully obtained gains liable to special confiscation under section 36e of the Criminal Procedure Code. This is called the deprivation settlement. This settelment is limited to the deprivation and does not relate to the criminal case itself. It can be entered into with a suspect as well as with a (convicted) defendant." (Answer to Study Questionnaire)

Netherlands Punitive Order Both Sometimes Sometimes Yes

Netherlands Conditional dismissal Confiscation Always No Yes "It is also accepted that the condition that the proceeds of crime will be paid to the state is imposed." (Answer to Study Questionnaire)

Norway Optional Penalty Writ Both Sometimes Sometimes Yes Confiscation w/o fine: "For example if there has been a prior conviction without confiscation or if the confiscation is imposed on another person than the accused." (Answer to Study Questionnaire) "Concerning foreign bribery cases specifically, confiscation has not been sought by law enforcement authorities in their out-of-court resolutions […] law enforcement officials have not relied on the provisions available to them under the law to confiscate the proceeds of foreign bribery.” (Phase 3 Report by the WGB, para. 55)

│ 147



as alternative







No)



Sometimes)


"In 2012, ØKOKRIM issued a book called “Guide to effective confiscation” (Veileder til effektiv inndragning, ØKOKRIM’s skriftserie nr. 20, 2012). This is a comprehensive and practical guide to the legal framework as well as to the investigative tools and approach to confiscation. The book also has a specific chapter concerning the confiscation of proceeds abroad. The book has been give broad distribution to all police districts and Prosecution offices. Confiscation is being given significant attention in the foreign bribery cases that are currently under investigation." (Phase 3 Written Follow-up Report p.8)


Alternative Sometimes Sometimes Yes See Criminal Procedure Act, section 2 of art. 450.b. Subject of the Agreement may not be confiscation, only the method of it. This could be done only if fine is not prescribed.

South Africa Plea Agreement Both Sometimes Sometimes Yes Confiscation only “in instances where the accused has no means to afford payment of a fine.” (Answer to Study Questionnaire)

South Africa Consent Orders Both Sometimes Unknown Unknown

Spain Conformidad Both Sometimes Sometimes Yes


Both Sometimes Sometimes Yes


Both Sometimes Sometimes Yes These are the possibilities according to Art. 352 and 353 SCPC. However it seems that disgorgement and fine is sought in most cases: "OAG sought, in all cases judged since Phase 3, to confiscate the proceeds or profit obtained by companies following a bribery payment." (Phase 4 Report by the WGB, para. 109)



United Kingdom Plea Agreement Both No Sometimes Yes


Unknown Unknown Unknown Unknown "If the property [sought to be recovered] has been disposed of, the court cannot impose a fine against an individual in lieu of recovery." (Serious Crime Act 2007, section 74; POCA sections 241 and 304) (see Phase 3 Report by the WGB, para. 62; Phase 2 bis Report by the WGB, para. 92)

United Kingdom Administrative Order Fine No Always N/A

148 │



as alternative







No)



Sometimes)



Civil Resolution Confiscation Always No Yes

United States Plea Agreement Both Sometimes Sometimes Yes "Discretionary, but typically if a person did not have means to pay a fine, or if there were no ill-gotten gains to be disgorged." (Answer to Study Questionnaire)

United States DPA [DOJ] Both Sometimes Sometimes Yes As above

United States NPA [DOJ] Both Sometimes Sometimes Yes As above


Both Sometimes Sometimes N/A "Due to the unique issues presented in FCPA matters, including their inherently international character and other factors, the FCPA Corporate Enforcement Policy is aimed at providing additional benefits to companies based on their corporate behaviour once they learn of misconduct. When a company has voluntarily self-disclosed misconduct in an FCPA matter, fully cooperated, and timely and appropriately remediated, all in accordance with the standards set forth below, there will be a presumption that the company will receive a declination absent aggravating circumstances involving the seriousness of the offense or the nature of the offender. Aggravating circumstances that may warrant a criminal resolution include, but are not limited to, involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism." (U.S. Attorney's Manual, section 9-47.120)

United States Civil Resolutions [SEC] Both Sometimes Sometimes Yes "Discretionary, but typically if a person did not have means to pay a fine, or if there were no ill-gotten gains to be disgorged." (Answer to Study Questionnaire)


Both Sometimes Sometimes Yes As above

United States DPA [SEC] Both Sometimes Sometimes Yes As above

United States NPA [SEC] Both Sometimes Sometimes Yes As above


│ 149

Table 48. Fine and confiscation (Natural Persons)

Country Resolution name (NP) Resolution can impose Monetary Sanction and/or Confiscation (or either as

Alternative)

Resolution can impose confiscation without Monetary Sanction? (Always /

Sometimes / No)

Resolution can impose Monetary sanction without confiscation (Always / Sometimes / No)

If resolution can impose confiscation of the proceeds and a fine, is amount confiscated

distinguished from fine? (Yes/No/Sometimes)



Argentina Cooperation Agreement Both No Sometimes Yes

Australia Plea Agreement Monetary Sanction No Always N/A

Austria Diversion Confiscation Always No Yes




Both Sometimes Sometimes Sometimes


Both Sometimes Sometimes Sometimes

Canada Alternative Measures Confiscation Always No Yes

Canada Plea Agreement Both No Sometimes Yes


Monetary Sanction No Always N/A


Monetary Sanction No Always N/A





Costa Rica Declination with Confiscation Confiscation Always No Yes

Costa Rica Suspension of Proceedings Confiscation Always No Yes

Costa Rica Shortened proceeding Confiscation Always No Yes

150 │


Alternative)


Sometimes / No)





Alternative Sometimes Sometimes Yes





Estonia Termination for cooperation Both No Sometimes Yes

Estonia Alternative proceedings Both No Sometimes Yes

Estonia Summary proceedings Both No Sometimes Yes

Estonia Expedited procedure Both No Sometimes Yes

Finland Plea Agreement Unknown Unknown Unknown Unknown


Unknown Unknown Unknown Unknown

Germany Section 153a Monetary Sanction No Always N/A

Germany Negotiated Agreement Both Unknown Sometimes Unknown

Germany Penal Order Both Unknown Sometimes Unknown


Both Unknown Sometimes Yes



Israel Plea Agreement Both Sometimes Sometimes Yes

Italy Patteggiamento Both No Sometimes Yes

Japan Agreement Procedure Both No Sometimes Unknown

Latvia Prosecutor's Penal Order Both Sometimes Sometimes Yes

Latvia Plea Agreement Both Sometimes Sometimes Yes



│ 151


Alternative)


Sometimes / No)




Mexico Summary Procedure Both No Sometimes Yes

Netherlands Transaction Both Sometimes Sometimes Yes

Netherlands Punitive Order Both Sometimes Sometimes Yes

Netherlands Conditional dismissal Confiscation Always No N/A

Norway Optional Penalty Writ Both Sometimes Sometimes Yes


Unknown Unknown Unknown Unknown

South Africa Plea Agreement Both Sometimes Sometimes Yes

Spain Conformidad Both Sometimes Sometimes Yes



Switzerland Summary Punishment Order Both Sometimes Sometimes Yes

United Kingdom Plea Agreement Both Sometimes Sometimes Yes


Unknown Unknown Unknown Yes

United States Plea Agreement Both Sometimes Sometimes Yes

United States DPA [DOJ] Both Sometimes Sometimes Yes

United States NPA [DOJ] Both Sometimes Sometimes Yes

United States Civil Resolutions [SEC] Both Sometimes Sometimes Yes



United States DPA [SEC] Both Sometimes Sometimes Yes

United States NPA [SEC] Both Sometimes Sometimes Yes


152 │

Table 49. Do resolutions include a secrecy/muzzle clause? (Legal Persons)

Country Resolution name (LP) Yes always/ Yes sometimes/ No Additional information


No


No

Australia Plea Agreement Sometimes "A suppression order may be made if the circumstances justify it."



No


Always


Sometimes "Persons who concluded the resolution are not allowed to reveal its terms until they become public, but there is no specific clause that forbids public comments related to the resolution." However, orientation No. 07/2017 provides that Confidentiality agreements can be concluded and that secrecy clauses can be included in agreement.

Canada Plea Agreement Unknown Canada Remediation Agreement Unknown Chile Conditional Suspension of

Proceedings No


No


No


Sometimes "In some cases a secrecy clause is stipulated, by virtue of the protection of personal data or possible risk of disclosure of industrial secrets or intellectual property".


Unknown

Estonia Expedited procedure Unknown Estonia Alternative proceedings Unknown

Estonia Summary proceedings Unknown

│ 153


Estonia

Termination for cooperation Unknown


No


No

Germany Administrative Resolution No Germany Forfeiture Order No Israel Plea Agreement Sometimes

Italy Patteggiamento No

Japan Agreement Procedure No Latvia Prosecutor's Penal Order No



No


Netherlands Transaction No "In the past there have been those clauses in regards to the settlement agreement as such. This practice has been abandoned."



Norway Optional Penalty Writ No


No





No

154 │




Sometimes "It depends on whether there are other proceedings ongoing. this might mean there are reporting restrictions in place in order to avoid prejudicing other cases."

United Kingdom Plea Agreement Sometimes "For the foreign bribery cases concluded since Phase 3, the UK has not entered into confidentiality agreements with defendants that prevent the disclosure of information to the public about case resolutions." Phase 4 para. 156


Sometimes "In reply, the SFO explained that it is unable to disclose more information in some cases (such as Balfour Beatty) because the settlement agreement includes confidentiality clauses.39 The SFO stated that there may be insufficient evidence in these cases, or the cost of proceedings may outweigh the severity of the additional sanction. It must therefore choose between accepting the confidentiality clause, or not reaching a settlement at all, in which case "it is likely that no further action would be taken against the company." Phase 3 para. 71



Civil Resolution Sometimes

United States Plea Agreement Sometimes "Sometimes an individual plea agreement or corporate resolutions may be filed "under seal" which would restrict the parties from disclosure if it would impact the ongoing investigation or the life or security of a witness."

United States DPA [DOJ] Sometimes As above

United States NPA [DOJ] Sometimes As above


Sometimes As above



No

United States DPA [SEC] Sometimes As plea agreement

United States NPA [SEC] Sometimes As plea agreement


│ 155

Table 50. Do resolutions include a secrecy/muzzle clause? (Natural Persons)

Country Resolution name (NP) Yes always/ Yes sometimes/ No Additional information


No

Argentina Cooperation Agreement No

Australia Plea Agreement Sometimes "A suppression order may be made if the circumstances justify it."



No


No "Persons who concluded the resolution are not allowed to reveal its terms until they become public, but there is no specific clause that forbids public comments related to the resolution."


No

Canada Alternative Measures Unknown Canada Plea Agreement Unknown Chile Conditional Suspension of

Proceedings Sometimes


No


No


No

Costa Rica Declination with Confiscation No




No


Unknown

Estonia Termination for lack of Unknown

156 │


proportionality

Estonia Termination for cooperation Unknown

Estonia Alternative proceedings Unknown

Estonia Summary proceedings Unknown

Estonia Expedited procedure Unknown

Finland Plea Agreement No


No

Germany Section 153a No

Germany Negotiated Agreement No

Germany Penal Order No


No


No

Israel Plea Agreement Sometimes

Italy Patteggiamento No

Japan Agreement Procedure No Latvia Prosecutor's Penal Order No



No


Netherlands Transaction No "In the past there have been those clauses in regards to the settlement agreement as such. This practice has been abandoned."




│ 157



No




No


United Kingdom Plea Agreement Yes sometimes "For the foreign bribery cases concluded since Phase 3, the UK has not entered into confidentiality agreements with defendants that prevent the disclosure of information to the public about case resolutions." Phase 4 para. 156


Sometimes "In reply, the SFO explained that it is unable to disclose more information in some cases (such as Balfour Beatty) because the settlement agreement includes confidentiality clauses.39 The SFO stated that there may be insufficient evidence in these cases, or the cost of proceedings may outweigh the severity of the additional sanction. It must therefore choose between accepting the confidentiality clause, or not reaching a settlement at all, in which case "it is likely that no further action would be taken against the company." Phase 3 para. 71

United States Plea Agreement Yes sometimes "Sometimes an individual plea agreement or corporate resolutions may be filed "under seal" which would restrict the parties from disclosure if it would impact the ongoing investigation or the life or security of a witness."

United States DPA [DOJ] Sometimes As above

United States NPA [DOJ] Sometimes As above



No

United States DPA [SEC] Sometimes

United States NPA [SEC] Sometimes


158 │

Table 51. Appointment, powers and obligations of Compliance monitor

Country Can a compliance monitor be appointed? (Yes/No)

Who appoints the monitor?

To whom does the monitor

report?

Max length of monitor's

mandate (in years)

Is mandate renewable?

Powers or obligations of the monitor

Existence of differences between resolution/ full trial

as to the compliance monitor's appointment, mandate, powers and

obligations


Argentina No N/A N/A N/A N/A N/A N/A

Australia No N/A N/A N/A N/A N/A N/A

Austria No N/A N/A N/A N/A N/A N/A

Brazil (Leniency Agreement)

Yes Variable (Leniency Agreement with CGU/AGU: CGU; with FPS: Defendant)

Variable (Leniency Agreement with CGU/AGU: CGU; with FPS: Prosecution)

Variable Yes Depends on the terms of the terms of the agreement, but could include: verifying the implementation of the compliance program and evaluating internal controls regarding contracts, payments and books and records. To do so, the monitor has autonomy in order to gather any relevant information, through on-site inspections, analysis and interviews.

Variable (Leniency Agreement with CGU/AGU: No; with FPS: Yes, as no monitorship can imposed after conviction at trial)

Leniency Agreement with CGU/AGU: the CGU’s compliance department is responsible for the compliance monitoring, but an independent monitor could be required. Leniency Agreement with FPS: In practice, the prosecution will consider the defendant's proposed monitor, but has the right to veto; The mandate is usually for two years and may be renewed for one more year.

Canada Yes Variable (Plea Agreement: Court decides; Remediation Agreement: Agreed by parties and approved by court)

Variable (Plea Agreement: Probation officer or other court official; Remediation Agreement: Prosecution)

Variable Variable Variable (Remediation Agreement: as determined by agreement)

No Renewable: “The mandate of the monitor is not renewed unless the agreement calls for such a review”. (Answer to Study Questionnaire) Difference: “A compliance monitor could also be appointed by a court as part of a probation order. Reports would be submitted to a probation officer, or other official who would stand in place of a probation officer, as determined by the court.”(Answer to Study Questionnaire)

│ 159




report?


mandate (in years)





obligations


Chile (Conditional Suspension of Proceedings)

Yes Parties jointly Variable Variable Variable As agreed by the parties The conditions of the compliance monitor would be established by the Court.

Colombia N/A N/A N/A N/A N/A N/A N/A No or N/A: There are no resolution procedures for LP in Colombia

Costa Rica N/A N/A N/A N/A N/A N/A N/A No or N/A: There are no resolution procedures for LP in Costa Rica

Czech Republic No N/A N/A N/A N/A N/A N/A

Estonia No N/A N/A N/A N/A N/A N/A

Finland No N/A N/A N/A N/A N/A N/A

France Public Interest Judicial Agreement (Convention Judiciaire d'Intérêt Public - CJIP)

Yes Independent Agency

Prosecution 3 No Power of Control: The AFA must report to the public prosecutor on the implementation of the compliance program by the legal entity and must submit a report to it at the end of the execution period of the measure. The AFA must also inform the public prosecutor of any difficulty.

The law of December 9th 2016, art.18, provides that, for certain offenses, legal persons may be sentenced to implement compliance programs (peine de mise en conformité), under the supervision of the French Anticorruption Agency for a period of maximum 5 years." Art. 22 provides that the same obligation [for 3 years maximum] may be imposed in the context of a CJIP.

Germany N/A N/A N/A N/A N/A N/A N/A Germany reports that a monitor cannot be appointed either through an Administrative Resolution or a Forfeiture Order

Hungary N/A N/A N/A N/A N/A N/A N/A No or N/A: There are no resolution procedures for LP in Hungary

160 │




report?


mandate (in years)





obligations


Israel Yes Variable Variable Variable Variable As agreed by the parties Unknown Who appoints: "The ability to appoint a monitor is not codified and there are no binding rules related to this. As part of a settlement the parties may agree on an appropriate monitor and the specific terms of his or her role. All details that are officially included in the settlement are agreed by the parties and must be approved by the court.

Italy (Patteggiamento)

Yes Court Court Variable Yes "The Judge defines the powers of the "judicial commissioner" for the prosecution of corporate business; the judicial commissioner must implement internal compliance programs."

Unknown Pursuant to art.15 of LD 231/2001, the Judge can appoint a judicial commissioner to monitor the company in lieu of suspending its activity when (i) the entity provides a public service or utility, or (ii) the suspension would negatively impact employment.

Japan No N/A N/A N/A N/A N/A N/A

Latvia No N/A N/A N/A N/A N/A N/A

Mexico No N/A N/A N/A N/A N/A N/A . In the case of the conditional suspension of process there is a supervisory authority of precautionary measures and conditional suspension of the process, who will inform the judicial urgency about compliance with the measures so that, in its case, the resolution that decrees the dismissal or failure to comply with the suspension and the consequent

│ 161




report?


mandate (in years)





obligations


continuation of the process.

Netherlands (Punitive Order and Conditional dismissal)

Unknown Unknown Unknown Unknown Unknown Unknown Unknown During Phase 3, Dutch prosecutors represented that monitors could, theoretically, be appointed through some forms of out-of-court resolution, but this has never been tested or confirmed in actual practice. Netherlands Phase 3 paras. 33 & 85.

Norway No N/A N/A N/A N/A N/A N/A

Slovenia No N/A N/A N/A N/A N/A N/A

South Africa No N/A N/A N/A N/A N/A N/A

Spain No N/A N/A N/A N/A N/A N/A

Switzerland No N/A N/A N/A N/A N/A N/A

United Kingdom Yes Defendant (approval of SFO and/or court required)

Parties jointly Variable Yes Conduct an anti-bribery and corruption compliance review, devise an implementation plan, complete the plan and report to the SFO in respect of its implementation as set out in the terms of the DPA

None "The prosecutor should ordinarily accept the company's preferred monitor. However where the prosecutor considers there to be a conflict of interest or that the monitor is inappropriate, or does not have the requisite experience and authority, they may reject the proposed appointment. Similarly the court may register its dissatisfaction with the selection by not approving the proposed term. (DPA Code of Practice art. 7.17); "[T]here is no external party to control compliance with the recommendations made by the monitor." Phase 4 para. 154; The monitor reports to the defendant

162 │




report?


mandate (in years)





obligations


company "and the prosecuting authority has sight of any reports." Answer 'N/A' to Q31f: does this mean that a monitor can only be imposed under a DPA and is not a power available to the Court after trial or guilty plea?

United States Yes Prosecution Prosecution Variable Yes Assess and monitor Company's compliance with the terms of the Agreement, evaluate the effectiveness of internal accounting controls, record-keeping, and financial reporting policies and procedures of the Company, assess Board of Director's and senior management's commitment to, and effective implementation of, the corporate compliance program. The monitor can take such reasonable steps as, in his or her view, may be necessary to fulfill his obligations and be fully informed about the Company's compliance program.

None The powers are typically set forth in attachment to a Plea, DPA or NPA with a monitor and for the SEC, in the party's consent and civil or administrative order. When both the DOJ and the SEC require a company to retain a monitor, the two agencies have been able to coordinate their requirements so that the company can retain one monitor to fulfill both sets of requirements.


│ 163

Table 52. Must the resolution be approved by a Court or other authority? (Legal Persons)

Country Resolution name Must resolution be approved by a court or any other authority?

(Yes/No)




Yes

Australia Plea Agreement Yes The Court does not approve the decision to resolve a case, but is responsible for setting the sanction

Austria Diversion Sometimes "It depends whether the diversional measures were applied by the public prosecutor (no indictment) or later by the court (after indictment) (please see VbVG para. 19(2) referring to CCP 199)."; "A grant of diversion by a prosecutor is not subject to review by the court." Phase 2 para. 79


No

Brazil Leniency Agreement [CGU-AGU]

No The Minister of CGU and the Attorney General both sign the agreement, and there is no mandatory judicial approval. The Court will only decide on agreements if there is a lawsuit pending that is affected, and only formal aspects of the agreement and the filling of the law requirements are analysed. There is no judicial overview on the merit of the agreement.

Brazil Leniency Agreement [Prosecution Service] Yes The CLL does not provide for a control or validation by a judge over the leniency agreement. Source: Phase 3 para. 104. An exception is when the resolution "has any kind of criminal clauses". Source: Answer to Questionnaire, Question 37.


Canada Remediation Agreement Yes

Chile Conditional Suspension of Proceedings Yes "A decision to seek a conditional suspension must be approved by a Regional Prosecutor (before it is solicited to the court), except in cases of 'flagrant low-complexity bribery'". Phase 3 para. 90








164 │


(Yes/No)




Yes


Yes

Germany Administrative Resolution No

Germany Forfeiture Order No

Israel Plea Agreement Yes



Latvia Prosecutor's Penal Order Yes "A penal order of the public prosecutor, if the person has committed a serious crime for which the punishment of deprivation of liberty of up to five years is provided for, may be drawn up, if a higher-ranking public prosecutor agrees thereto, making a note to this effect in the register of criminal proceedings." Source: Answer to Questionnaire (Question 5).


Mexico Conditional Suspension of the Process Yes “It is a procedure before a Control Judge.”

Mexico Summary Procedure Yes The sentence is issued by a judge and has the same effects as the one issued as a result of an ordindary procedure.

Netherlands Transaction Yes In certain cases, for intance if the monetary sanction exceeds EUR 50 000, the proposed “transaction”resolution has to be submitted by the Board of Procurators General to the Minister of Security and Justice and Security, who then has the discretion to accept approve the proposal …." See Netherlands Phase 3 para.86.





South Africa Plea Agreement Yes "Section 105A of the CPA states that a prosecutor authorized thereto in writing by the National Director of Public prosecutions and an accused who is legally represented may negotiate and enter into an agreement." Phase 2 para. 153; "The Director / Special Director / Deputy Director of Public Prosecutions may authorise a plea and sentence agreement where there is a deviation from any prescribed minimum sentence." Phase 2 para. 156; "A plea bargain must be approved by the court and be affirmed by a judgement". Phase 3 para. 79

│ 165


(Yes/No)


South Africa Consent Orders Yes



Yes Exceptionally, the prosecutor may issue a summary penalty order during an abbreviated procedure, if certain conditions are met. The order would not be approved by a court.


United Kingdom Deferred Prosecution Agreement Yes



United Kingdom Consent Order for Civil RecoveryConsent Order for Civil Recovery

Yes "Under this process, the SFO and the defendant agree on the order’s amount and other terms. The order is then drawn up, signed by a High Court Judge and entered in the court registry." Phase 3 para. 65



United States DPA [DOJ] Yes "At least one Deputy Chief and the Chief of the Fraud Section must review and approve all [resolution] decisions. The approval of a Deputy Assistant Attorney General and the Assistant Attorney General of the Criminal Division is sometimes also required. If a company does not agree with the [resolution] decision, it may informally appeal the decision to the Assistant Attorney General." Phase 3 para. 115.

United States NPA [DOJ] Yes See comment to US DPA above.

United States Declination with Disgorgement [DOJ] Yes See comment to US DPA above.

United States Civil Resolutions [SEC] Yes "SEC Commission has to approve enforcement dispositions and accept [resolution] offers."; "If both parties agree to a [resolution], the [resolution] is subject to judicial approval." Source: Material provided by US for study.

United States Administrative Resolutions [SEC] Yes See comment to "US Termination Letters and Declinations" above.

United States DPA [SEC] Yes See comment above.

United States NPA [SEC] Yes See comment above.

Source: Answers to Question 7d

166 │

Table 53. Must the resolution be approved by a Court or other authority? (Natural Persons)

Country Resolution name Must resolution be approved by a court or any other

authority? (Yes/No)


Argentina Abbreviated Procedure (Juicio Abreviado) Yes Argentina Cooperation Agreement Yes Australia Plea Agreement Yes The Court does not approve the decision to resolve a case, but is responsible for setting the sanction Austria Diversion Sometimes "It depends whether the diversional measures were applied by the public prosecutor (no indictment) or later

by the court (after indictment) (please see VbVG para. 19(2) referring to CCP 199)."; "A grant of diversion by a prosecutor is not subject to review by the court." Phase 2 para. 79


No


Yes

Brazil Conditional Suspension of the Procedure Yes Canada Alternative Measures Sometimes The need for court involvement would depend on the type of sanction imposed through the Alternative

Measures procedure. (Answer to Study Questionnaire - Question 26) Canada Plea Agreement Yes Chile Conditional Suspension of Proceedings Yes "A decision to seek a conditional suspension must be approved by a Regional Prosecutor (before it is

solicited to the court), except in cases of 'flagrant low-complexity bribery'". Phase 3 para. 90 Chile Expedited Procedure/Summary Procedure Yes Colombia Declination with confiscation (Code of

Criminal Procedure art. 324) Yes

Colombia Preliminary agreement (Preacuerdo) Yes Costa Rica Declination with Confiscation Yes Costa Rica Suspension of Proceedings Yes Costa Rica Shortened proceeding Yes Czech Republic Agreement on Guilt and Punishment (AGP) Yes Estonia Termination for lack of public interest Yes Estonia Termination for lack of proportionality Yes Estonia Termination for cooperation No Estonia Alternative proceedings Yes

│ 167


authority? (Yes/No)


Estonia Summary proceedings Yes Estonia Expedited procedure Yes Finland Plea Agreement Yes France Guilty Plea (Comparution sur


Yes

Germany Section 153a Yes Germany Negotiated Agreement Yes Germany Penal Order Yes Hungary Resolution about the Admission of Guilt Yes Hungary Possibility of Avoidance of criminal liability Yes The police can terminate an investigation without prosecution in the interest of a criminal investigation (CPA

para. 219), subject to approval by a prosecutor. Israel Plea Agreement Yes Italy Patteggiamento Yes Japan Agreement Procedure No Latvia Prosecutor's Penal Order Yes "A penal order of the public prosecutor, if the person has committed a serious crime for which the punishment

of deprivation of liberty of up to five years is provided for, may be drawn up, if a higher-ranking public prosecutor agrees thereto, making a note to this effect in the register of criminal proceedings." Source: Answer to Questionnaire (Question 5).

Latvia Plea Agreement Yes Mexico Conditional Suspension of the Process Yes “It is a procedure before a Control Judge.” Mexico Summary Procedure Yes The sentence is issued by a judge and has the same effects as the one issued as a result of an ordinary

procedure. Netherlands Transaction Yes In certain cases, for intance if the monetary sanction exceeds EUR 50 000, the proposed

“transaction”resolution has to be submitted by the Board of Procurators General to the Minister of Security and Justice and Security, who then has to discretion to accept approve the proposal or decide to submit the case to courtnot." See Netherlands Phase 3 para.86.

Netherlands Punitive Order No Netherlands Conditional dismissal No Norway Optional Penalty Writ No Slovenia Agreement on the Confession of Guilt Yes

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authority? (Yes/No)


South Africa Plea Agreement Yes "Section 105A of the CPA states that a prosecutor authorized thereto in writing by the National Director of Public prosecutions and an accused who is legally represented may negotiate and enter into an agreement." Phase 2 para. 153; "The Director / Special Director / Deputy Director of Public Prosecutions may authorise a plea and sentence agreement where there is a deviation from any prescribed minimum sentence." Phase 2 para. 156; "A plea bargain must be approved by the court and be affirmed by a judgement". Phase 3 para. 79

Spain Conformidad Yes Switzerland Accelerated Proceedings/ Simplified

Procedure Yes Exceptionally, the prosecutor may issue a summary penalty order during an abbreviated procedure, if certain

conditions are met. The order would not be approved by a court. Source: Answer to Questionnaire Switzerland Summary Punishment Order No United Kingdom Plea Agreement Yes United Kingdom Consent Order for Civil RecoveryConsent

Order for Civil Recovery Yes "Under this process, the SFO and the defendant agree on the order’s amount and other terms. The order is

then drawn up, signed by a High Court Judge and entered in the court registry." Phase 3 para. 65 United States Plea Agreement Yes United States DPA [DOJ] Yes "At least one Deputy Chief and the Chief of the Fraud Section must review and approve all settlement

decisions. The approval of a Deputy Assistant Attorney General and the Assistant Attorney General of the Criminal Division is sometimes also required. If a company does not agree with the settlement decision, it may informally appeal the decision to the Assistant Attorney General." Phase 3 para. 115

United States NPA [DOJ] Yes See comment above. United States Civil Resolutions [SEC] Yes "SEC Commission has to approve enforcement dispositions and accept [resolution] offers."; "If both parties

agree to a [resolution], the [resolution] is subject to judicial approval." Source: Answer to Questionnaire. United States Administrative Resolutions [SEC] Yes See comment to US "Termination Letters and Declinations" above. United States DPA [SEC] Yes See comment above. United States NPA [SEC] Yes See comment above.

Source: Answers to Question 7d

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Table 54. Extent of judicial oversight over resolution’s terms and conditions (Legal Persons)

Country Resolution name Court involved at all?

If yes, does court examine?: Resolution only filed in court (No review)

Terms and conditions before validation

Facts of case

Required substantive conditions

Required procedural conditions


Yes Yes No No No No


Yes Yes No No Yes No

Australia Plea Agreement No N/A N/A N/A N/A N/A

Austria Diversion Yes N/A N/A N/A N/A No


No N/A N/A N/A N/A N/A





Canada Plea Agreement Yes Yes No Yes Yes No

Canada Remediation Agreement Yes Yes No Yes Yes No




Yes Yes Yes No Yes No


Yes Yes No Yes Yes No





Estonia

Termination for cooperation No N/A N/A N/A N/A N/A

Estonia Alternative proceedings Yes Yes No Yes Yes No

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Facts of case



Estonia Summary proceedings Yes Yes No Yes Yes No

Estonia Expedited procedure Yes Yes No Yes Yes No


Yes Yes Yes Yes Yes No



Germany Administrative Resolution No N/A N/A N/A N/A N/A

Germany Forfeiture Order No N/A N/A N/A N/A N/A

Israel Plea Agreement Yes Yes Yes Yes Yes No

Italy Patteggiamento Yes Yes No Yes Yes No

Japan Agreement Procedure No N/A N/A N/A N/A N/A

Latvia Prosecutor's Penal Order No N/A N/A N/A N/A N/A

Latvia Plea Agreement Yes Yes Yes Yes Yes No



Mexico Summary Procedure Yes Yes Yes Yes Yes No

Netherlands Transaction No N/A N/A N/A N/A N/A

Netherlands Punitive Order No N/A N/A N/A N/A N/A

Netherlands Conditional dismissal No N/A N/A N/A N/A N/A

Norway Optional Penalty Writ No N/A N/A N/A N/A N/A



South Africa Plea Agreement Yes Yes No Yes Yes No

South Africa Consent Orders Yes Yes No Yes Yes No

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Facts of case



Spain Conformidad Yes Yes No No No No



Switzerland Summary Punishment Order No N/A N/A N/A N/A N/A



United Kingdom Plea Agreement Yes Yes Yes Yes Yes No


Yes N/A N/A N/A N/A Yes

United Kingdom Administrative Order No N/A N/A N/A N/A N/A


Civil Resolution No N/A N/A N/A N/A N/A

United States Plea Agreement Yes Yes Yes Yes Yes No

United States DPA [DOJ] Yes N/A N/A N/A N/A Yes

United States NPA [DOJ] No N/A N/A N/A N/A N/A



United States Civil Resolutions [SEC] Yes Yes No Yes No No



United States DPA [SEC] No N/A N/A N/A N/A N/A

United States NPA [SEC] No N/A N/A N/A N/A N/A


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Table 55. Extent of judicial oversight over resolution’s terms and conditions (Natural Persons)

Country Resolution name Court involved at all? If yes, does court examine?: Resolution only filed in court (No examination)


Facts of case Required substantive conditions Required procedural conditions



Argentina Cooperation Agreement Yes Yes No No Yes No

Australia Plea Agreement No N/A N/A N/A N/A N/A

Austria Diversion Yes No No No No No


No N/A N/A N/A N/A No





Canada Alternative Measures No N/A N/A N/A N/A N/A

Canada Plea Agreement Yes Yes No Yes Yes No








Yes No No Yes Yes No

Costa Rica Declination with Confiscation Yes Yes Yes Yes Yes No

Costa Rica Suspension of Proceedings Yes Yes Yes Yes Yes No

Costa Rica Shortened proceeding Yes Yes Yes Yes Yes No

Czech Republic Agreement on Guilt and Yes Yes No Yes Yes No

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Punishment (AGP)





Estonia Termination for cooperation No N/A N/A N/A N/A No

Estonia Alternative proceedings Yes Yes No Yes Yes No

Estonia Summary proceedings Yes Yes No Yes Yes No

Estonia Expedited procedure Yes Yes No Yes Yes No

Finland Plea Agreement Yes Yes Yes No Yes No



Germany Section 153a Yes Yes No No No No

Germany Negotiated Agreement Yes Yes Yes Yes Yes No

Germany Penal Order Yes Yes No No No No


Yes No Yes No Yes No



Israel Plea Agreement Yes Yes Yes Yes Yes No

Italy Patteggiamento Yes Yes No Yes Yes No

Japan Agreement Procedure No N/A N/A N/A N/A N/A

Latvia Prosecutor's Penal Order No N/A N/A N/A N/A No

Latvia Plea Agreement Yes Yes Yes Yes Yes No



174 │




Mexico Summary Procedure Yes Yes Yes Yes Yes No

Netherlands Transaction No N/A N/A N/A N/A N/A

Netherlands Punitive Order No N/A N/A N/A N/A N/A

Netherlands Conditional dismissal No N/A N/A N/A N/A N/A

Norway Optional Penalty Writ No N/A N/A N/A N/A No



South Africa Plea Agreement Yes Yes No Yes Yes No

Spain Conformidad Yes Yes No No No No



Switzerland Summary Punishment Order No N/A N/A N/A N/A No

United Kingdom Plea Agreement Yes Yes Yes Yes Yes No


Yes No No No No Yes

United States Plea Agreement Yes Yes Yes Yes Yes No

United States DPA [DOJ] Yes No No No No Yes

United States NPA [DOJ] No N/A N/A N/A N/A No

United States Civil Resolutions [SEC] Yes Yes No Yes No No



United States DPA [SEC] No N/A N/A N/A N/A No

United States NPA [SEC] No N/A N/A N/A N/A No


│ 175

Table 56. If a resolution is reviewed, what grounds could lead a court to invalidate or refuse to validate it (Legal Persons)

Country Resolution name (LP) Are there any mandatory grounds that

could lead to invalidation/ refusal?

Are there any discretionary grounds that could lead to invalidation/

refusal?

Has a resolution been invalidated before in a foreign bribery case?

(Yes/No)



No Yes Yes


Yes Unknown No Mandatory: The court "will assess the lawfulness of the terms of the agreement and the cooperation offered before deciding whether to approve, state any objections to or dismiss it" ( Law 27.401 art. 19)

Australia Plea Agreement Unknown Unknown Unknown In certain circumstances, a legal or natural person may apply for leave to change the original plea.

Austria Diversion N/A N/A N/A No judicial oversight


N/A N/A N/A No judicial oversight


Yes No No Mandatory: Leniency agreements under Law 12,846/2013 have no judicial oversight. If there is a pending lawsuit affected by the agreement, the judge will verify that the legal requirements and procedures for a settlement were fulfilled.


Yes No No Mandatory: Leniency agreements under Law 12,846/2013 have no judicial oversight. If there is a pending lawsuit affected by the agreement, the judge will verify that the legal requirements and procedures for a settlement were fulfilled.

Canada Plea Agreement Yes Yes No Mandatory: “…the court must be satisfied that the terms are fair and reasonable and in the public interest. The court must also be satisfied that reasonable efforts were made to take into consideration the impact on victims.” Discretionary: “A Court could also review a breach of a probation order that is the result of a plea agreement.” (Answer to Study Questionnaire)

Canada Remediation Agreement Yes Unknown No Mandatory: “The court must, by order, approve the agreement if it is satisfied that:(a) the organization is charged with an offence to which the agreement applies; (b) the agreement is in the public interest; and (c) the terms of the agreement are fair, reasonable and proportionate to the gravity of the offence. The court must also take into consideration the impact on victims.” (Answer to Study Questionnaire)

Chile Conditional Suspension of Yes Unknown No Mandatory: Violation of procedural standards, conditions set forth in CCP

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refusal?


(Yes/No)


Proceedings art. 237 are not respected (penalty for offence committed is more than three years, recidivism, accused has benefited previously from conditional suspension)


Yes Unknown No Mandatory: Violation of substantial and/or procedural standards,judge can accept the demand of complainant (private party) and rule against use of procedure (CCP art. 410)


Yes Unknown No Mandatory: "The court will not approve the Agreement on Guilt and Punishment, if it is incorrect or inadequate in the view of compliance with the ascertained facts or in the view of the type and term of the proposed punishment or protective measure, or incorrect in the view of the extent and manner of compensation of damage or non-material harm or the surrender of unjust enrichment, or if it finds that the rights of the accused person were seriously breached in the course of negotiating the Agreement on Guilt and Punishment."


Yes Yes No


Yes Yes No

Estonia Termination for cooperation Yes Yes No

Estonia Alternative proceedings Yes Yes No

Estonia Summary proceedings Yes Yes No

Estonia Expedited procedure Yes Yes No


Yes Unknown No Mandatory: Non-conformity of the amount of the fine with the limits provided for in CCP art. 41-1-2(I)(1), non proportionality of the amount to the advantages derived from the breaches, violations of procedural standards


Yes Unknown Unknown Mandatory: No real consent of the accused, incorrect legal qualification of facts, unjustified penalties in the light of the circumstances of the offense and the personality of the offender (CCP art. 495-11) Resolution invalidated

Germany Administrative Resolution No No No

Germany Forfeiture Order No No No

Israel Plea Agreement Unknown Yes No Discretionary: The court evaluates the balance between the specific conviction and sanctions and the public interest.

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refusal?


(Yes/No)


Italy Patteggiamento Yes Unknown No Mandatory: "Compliance with legal conditions related to the amount of the sanction (i) the accused's consent, (ii) the lack of correspondence between demand and sanction and (iii) the incorrect qualification of facts."

Japan Agreement Procedure N/A N/A N/A

Latvia Prosecutor's Penal Order N/A N/A N/A No judicial oversight

Latvia Plea Agreement Yes Unknown No Mandatory: "Taking into account the circumstances of the case or if it contradicts the substantial provisions of the Criminal Law, court may return the case to the prosecution."


Yes No Unknown

Mexico Summary Procedure Yes No Unknown

Netherlands Transaction N/A N/A N/A No judicial oversight

Netherlands Punitive order N/A N/A N/A No judicial oversight

Netherlands Conditional Dismissal N/A N/A N/A No judicial oversight

Norway Optional Penalty Writ N/A N/A N/A No judicial oversight


Unknown Unknown No [Waiting for input (translated legislation)]

South Africa Plea Agreement Yes Unknown No Mandatory: "If the court is for the view that the sentence proposed in not just, it shall refuse to validate the plea and sentence agreement."

South Africa Consent Orders Unknown Unknown No

Spain Conformidad Yes Unknown Unknown Mandatory:Judge must verify the legal qualification of the facts and that the penalty is appropriate according to said qualification, that defendant's consent has been freely given and that he is aware of the consequences. (CCP art. 787(2)) Resolution invalidated


Yes No No Mandatory: SCPC art. 362 (1): the conduct of accelerated proceedings is unlawful and unreasonable; the charges do not correspond to the result of the main hearing and the files; and the requested sanctions is not equitable

Switzerland Summary Punishment Order N/A N/A N/A No judicial oversight


Yes Yes No Mandatory: "Terms fail to meet the interests of justice or if they are unfair or unreasonable." Discretionary: If company fails to comply with the terms of the DPA, the prosecutor may apply to the Crown Court to seek a remedy or to have the

178 │




refusal?


(Yes/No)


DPA terminated. See Crime & Courts Act 2013 Schedule 17 para. 9.

United Kingdom Plea Agreement Yes Yes No Mandatory: "Plea agreements are reasonable, fair and just. The charge must reflect the seriousness and extent of the offending; give the court adequate sentencing powers; and enable the court, the public and the victim to have confidence in the outcome. The facts described in the basis of plea must not be misleading or untrue. The procedure should command public and judicial confidence."; There should be safeguards to ensure that defendants are not improperly pressured.


N/A N/A N/A Filed with a court as a procedural step only.

United Kingdom Administrative Order N/A N/A N/A No judicial oversight.


Civil Resolution N/A N/A N/A No judicial oversight

United States Plea Agreement Yes Yes Unknown Mandatory: Plea agreement was not made voluntarily, with understanding of the nature of the charge and the consequences of the plea, there is no factual basis for the plea. (Federal Rule of Criminal Procedure 11c) Discretionary: Disagreement with the plea agreement and/or sentence, at least if the plea agreement contains an agreement to that effect.

United States DPA [DOJ] N/A N/A N/A Filed with a court as a procedural step only.

United States NPA [DOJ] N/A N/A N/A No judicial oversight



United States Civil Resolutions [SEC] Yes Unknown Unknown Mandatory: Court has to ensure that the agreement is fair, reasonable, and in the public interest. Resolution invalidated



United States DPA [SEC] N/A N/A N/A No judicial oversight

United States NPA [SEC] N/A N/A N/A No judicial oversight


│ 179

Table 57. If a resolution is reviewed, what grounds could lead a court to invalidate or refuse to validate it (Natural Persons)

Country Resolution name (NP) Are there any mandatory grounds that


Are there any discretionary grounds

that could lead to invalidation/ refusal?


(Yes/No)



Yes Yes No Mandatory: If it needs more information about the facts, or if it disagrees with the legal classification of the case (CPC article 431bis(3)). "The court cannot reject the resolution if it disagrees with the agreed sentence, or impose a more severe sentence than agreed (CPC article 431bis(5))." Phase 3 para. 80

Argentina Cooperation Agreement Yes Yes No Mandatory: If the judge believes that the offender did not enter voluntarily into the agreement or is not cooperating fully; or if the conditions of section 41 ter of the Criminal Code have not been met (section 10 Law 27.304) (Answer to Study Questionnaire – follow-up clarification)

Australia Plea Agreement Unknown Unknown Unknown In certain circumstances, a legal or natural person may apply for leave to change the original plea.

Austria Diversion N/A N/A N/A No judicial oversight




Yes Yes No Mandatory: "Review of procedural standards [accused consent, accused is represented by counsel, accused has been fully informed of rights and consequences of accepting decision] is mandatory." Discretionary: "[I]t is disputed whether a court can enter into substantive conditions of the resolution, but if that's the case, that would be discretionary."


Yes Yes Unknown The Court may refuse if there would be no basis to prosecute the matter.

Canada Alternative Measures N/A N/A N/A No judicial oversight

Canada Plea Agreement Yes Yes No Mandatory: “…the court must be satisfied that the terms are fair and reasonable and in the public interest. The court must also be satisfied that reasonable efforts were made to take into consideration the impact on victims.” Discretionary: “A Court could also review a breach of a probation order that is the result of a plea agreement.” (Answer to Study Questionnaire)


Yes Unknown No Mandatory: Violation of procedural standards, conditions set forth in CCP art. 237 are not respected (penalty for offence committed is more than three years, recidivism, accused has benefited previously from conditional suspension)

180 │






(Yes/No)



Yes Unknown No Mandatory:Violation of substantial and/or procedural standards, judge can accept the demand of complainant (private party) and rule against use of procedure (CCP art. 410)


Yes Unknown No Mandatory: If substantive and procedural legal conditions are not respected. If evidence is insufficient. If Compensation to victim is not enough.


Yes Unknown No Mandatory: If the agreement did not respect fundamental liberties. If effective reparation to the victim is not enough.

Costa Rica Declination with Confiscation Yes No No Mandatory: Resolution must comply with conditions set forth in law

Costa Rica Suspension of Proceedings Yes No No Mandatory: As above

Costa Rica Shortened proceeding Yes No No Mandatory: As above


Yes Unknown No Mandatory: "The court will not approve the Agreement on Guilt and Punishment, if it is incorrect or inadequate in the view of compliance with the ascertained facts or in the view of the type and term of the proposed punishment or protective measure, or incorrect in the view of the extent and manner of compensation of damage or non-material harm or the surrender of unjust enrichment, or if it finds that the rights of the accused person were seriously breached in the course of negotiating the Agreement on Guilt and Punishment."


Yes Yes No Mandatory: Estonia reports that court may refuse to validate resolution if unspecified grounds for resolution are not met. Discretionary: Court may also reject resolution if it determines the obligations imposed on accused are "not appropriate".


Yes Yes No Mandatory: As above

Estonia Termination for cooperation Yes Yes No Mandatory: As above

Estonia Alternative proceedings Yes Yes No Mandatory: As above

Estonia Summary proceedings Yes Yes No Mandatory: As above

Estonia Expedited procedure Yes Yes No Mandatory: As above

Finland Plea Agreement Yes Unknown Unknown Mandatory: "The court shall ensure that the case is dealt with appropriately. The proposal for a judgement also includes information on how the bargaining

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(Yes/No)


process has progressed before the court hearing. The court shall issue a judgement according with the proposal for judgement if: the defendant has made the admission and given the consent; no reasonable doubt remains regarding the voluntary and valid nature of the admission, taking into consideration also the criminal investigation material concerning the case; the court convicts in accordance with the proposal for judgement; and there is otherwise no bar to acceptance of the proposal. See Criminal Procedure Act Chapter 5(b)." Resolution Invalidated


Yes Unknown Unknown Mandatory: No real consent of the accused, incorrect legal qualification of facts, unjustified penalties in the light of the circumstances of the offense and the personality of the offender (CCP art. 495-11) Resolution invalidated

Germany Section 153a Yes Unknown Unknown Mandatory:"The court can only give its consent to the termination of the criminal proceeding if the imposed conditions and instructions upon the accused are of such nature that the public interest in criminal prosecution is eliminated and the degree of guilt does not present an obstacle." The court then examines, within the scope of its judicial independence, whether the requirements of section 153a CCP have been met. Where the court does not deem the requirements to have been met, it refuses to grant the approval and instead proposes, for example, that public charges be preferred. Resolution invalidated: Refusal to grant approval does occur in practice (see http://www.sueddeutsche.de/news/wirtschaft/boersen---frankfurt-am-main-staatsanwaltschaft-gegen-kengeter-wird-weiter-ermittelt-dpa.urn-newsml-dpa-com-20090101-171023-99-572116).

Germany Negotiated Agreement Yes Unknown Unknown Mandatory: CCP art. 257c (4) "The court shall cease to be bound by a negotiated agreement if legal or factually significant circumstances have been overlooked or have arisen and the court therefore becomes convinced that the prospective sentencing range is no longer appropriate to the gravity of the offence or the degree of guilt. The same shall apply if the further conduct of the defendant at the trial does not correspond to that upon which the court’s prediction was based. The defendant’s confession may not be used in such cases." Resolution invalidated

Germany Penal Order Yes Unknown Unknown Mandatory: Judge has reservation about deciding the case without a main hearing, the judge wished to deviate from the legal assessment in the application to issue the penal order, or if he wishes to impose legal consequences other

182 │






(Yes/No)


than those applied for (CCP art. 408) Resolution invalidated


Yes Unknown No Mandatory: "Consent and understanding of the accused; legal representation."



Israel Plea Agreement Unknown Yes No Discretionary: The court evaluates the balance between the specific conviction and sanctions and the public interest.

Italy Patteggiamento Yes Unknown No Mandatory: "Compliance with legal conditions related to the amount of the sanction (i) the accused's consent, (ii) the lack of correspondence between demand and sanction and (iii) the incorrect qualification of facts."

Japan Agreement Procedure N/A N/A N/A

Latvia Prosecutor's Penal Order N/A N/A N/A No judicial oversight

Latvia Plea Agreement Yes Unknown No Mandatory: "Taking into account the circumstances of the case or if it contradicts the substantial provisions of the Criminal Law, court may return the case to the prosecution."


Yes No Unknown

Mexico Summary Procedure Yes No Unknown

Netherlands Transaction N/A N/A N/A No judicial oversight

Netherlands Punitive order N/A N/A N/A No judicial oversight

Netherlands Conditional Dismissal N/A N/A N/A No judicial oversight

Norway Optional Penalty Writ N/A N/A N/A No judicial oversight


Unknown Unknown No No judicial oversight.

South Africa Plea Agreement Yes Unknown No Mandatory: "If the court is for the view that the sentence proposed in not just, it shall refuse to validate the plea and sentence agreement."

Spain Conformidad Yes Unknown Unknown Mandatory: Judge must verify the legal qualification of the facts and that the penalty is appropriate according to said qualification, that defendant's consent has been freely given and that he is aware of the consequences. (CCPart.

│ 183






(Yes/No)


787(2)) Resolution invalidated


Yes No No Mandatory: SCPC art. 362 (1): the conduct of accelerated proceedings is unlawful and unreasonable; the charges do not correspond to the result of the main hearing and the files; and the requested sanctions is not equitable

Switzerland Summary Punishment Order N/A N/A N/A No judicial oversight

United Kingdom Plea Agreement Yes Yes Unknown Mandatory: "Plea agreements are reasonable, fair and just. The charge must reflect the seriousness and extent of the offending; give the court adequate sentencing powers; and enable the court, the public and the victim to have confidence in the outcome. The facts described in the basis of plea must not be misleading or untrue. The procedure should command public and judicial confidence." Phase 3 para. 55; There should be safeguards to ensure that defendants are not improperly pressured.


Recovery N/A N/A N/A Filed with a court as a procedural step only.

United States Plea Agreement Yes Yes Unknown Mandatory: Plea agreement was not made voluntary, with understanding of the nature of the charge and the consequences of the plea, there is no factual basis for the plea. (Federal Rule of Criminal Procedure 11c) Discretionary: Disagreement with the plea agreement and/or sentence, at least if the plea agreement contains an agreement to that effect.

United States DPA [DOJ] N/A N/A N/A Filed with a court as a procedural step only.

United States NPA [DOJ] N/A N/A N/A No judicial oversight

United States Civil Resolutions [SEC] Yes Unknown Unknown Mandatory: "Court has to ensure that the agreement is fair, reasonable, and in the public interest." Resolution Invalidated



United States DPA [SEC] N/A N/A N/A No judicial oversight

United States NPA [SEC] N/A N/A N/A No judicial oversight


184 │

Table 58. Consequences of court’s refusal to validate a resolution (Legal Persons)

Country Resolution name The case has to go for a full trial

The parties have to review the

terms of resolution

Court will review second, revised

agreement

The court can review terms and conditions

of resolution

Parties get second, final chance to present deal



Yes Unknown Unknown Yes No “In case of a refusal of the resolution, it is even possible to do an Effective Cooperation Agreement” (Answer to Study Questionnaire – follow-up clarification)


Yes Yes Yes No No

Australia Plea Agreement N/A N/A N/A N/A N/A No judicial oversight.

Austria Diversion N/A N/A N/A N/A N/A No judicial oversight.


N/A N/A N/A N/A N/A No judicial oversight.


N/A N/A N/A N/A N/A Leniency agreements under Law 12,846/2013 have no judicial oversight. If there is a pending lawsuit affected by the agreement, the judge will verify that the legal requirements and procedures for a settlement were fulfilled.


Yes Yes Yes No No "Agreements may be taken to court if they have any kind of criminal clauses. Other than that, leniency agreements under Law 12,846/2013 have no judicial oversight."; Applicable answer "depends on the reasons why the court refuses to validate the resolution."

Canada Plea Agreement Yes Yes Yes Yes Yes “In some cases the case would proceed to trial at the prosecutor’s discretion. In the case of a plea agreement, the parties may have the opportunity to review the agreement and resubmit it for court

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terms of resolution


agreement


of resolution



approval. In rare case where there is an acceptance of guilt on the part of the accused, the court may overrule the parties and impose its own settlement. ” (Answer to Study Questionnaire)

Canada Remediation Agreement Yes Yes Yes Yes Yes “The parties may take the opportunity to review the agreement and resubmit it for court approval. Alternatively, the prosecutor may stay or amend the charge, or proceed to trial in the normal fashion.” (Answer to Study Questionnaire)


Yes No No No No


Yes No No No No


No No No No No Other: In such a case the court will return the case to pre-trial proceedings.


No Yes Yes No No Other: The prosecutor can also decide to bring the case to trial, if the pre-trial phase has been completed.


No Yes Yes No No Other: The prosecutor can also decide to bring the case to trial, if the pre-trial phase has been completed.

Estonia Termination for cooperation No Yes Yes No No Other: The prosecutor can also decide to bring the case to trial, if the pre-trial phase has been completed.

Estonia Alternative proceedings No Yes Yes No No

Estonia Summary proceedings No Yes Yes No No

Estonia Expedited procedure No Yes Yes No No

186 │



terms of resolution


agreement


of resolution




Yes No No No No


Yes No No No No "[E]xcept in case of a new element" CCP art. 495-12

Germany Administrative Resolution N/A N/A N/A N/A N/A

Germany Forfeiture Order N/A N/A N/A N/A N/A

Israel Plea Agreement Yes No No No No Other: "In a case where the court accepts the admission of guilt but not the agreement regarding sanctions, this results in a conviction and a different verdict, which can be appealed by the parties."; "If the court does not accept the admission of guilt, the case will go to court."

Italy Patteggiamento Yes Yes Yes Yes No

Japan Agreement Procedure N/A N/A N/A N/A N/A

Latvia Prosecutor's Penal Order N/A N/A N/A N/A N/A No judicial oversight.

Latvia Plea Agreement No Yes No No No


Yes Yes Yes Yes No “The appeal is filed by whoever is dissatisfied with the concession, refusal or revocation of the conditional suspension of the process.”

Mexico Summary Procedure No No No No No “Once that in the second instance the sentence is confirmed, the latter is definitive and an ordinary appeal is not allowed. Against said resolution can only

│ 187



terms of resolution


agreement


of resolution



be imposed an amparo proceeding.”

Netherlands Transaction N/A N/A N/A N/A

N/A No judicial oversight

Netherlands Punitive order N/A N/A N/A N/A


Netherlands Conditional Dismissal N/A N/A N/A N/A


Norway Optional Penalty Writ N/A N/A N/A N/A N/A No judicial oversight.


Yes No No No No

South Africa Plea Agreement Yes Yes No No No "Once rejected, it cannot be re-submitted, and the sentence may either be altered by the parties to such sentence as the presiding officer deem fit or the proceedings must resume their normal course of action." Phase 2 para. 153

South Africa Consent Orders Yes Yes Yes Yes No

Spain Conformidad No Yes Yes No No


Yes No No No No

Switzerland Summary Punishment Order N/A N/A N/A N/A N/A No judicial oversight.


No Yes Yes Yes No Full Trial: The UK reports that the prosecutor must decide whether or not to proceed with a full trial, if the DPA is refused.

United Kingdom Plea Agreement Yes Yes Unknown Unknown Yes Second chance: The UK reports that depending on the circumstances, a court may agree to an adjournment for agreement of facts & plea basis

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terms of resolution


agreement


of resolution




N/A N/A N/A N/A N/A Formal approval by a court only.

United Kingdom Administrative Order Unknown Unknown Unknown Unknown Unknown


Civil Resolution N/A N/A N/A N/A N/A No judicial oversight.

United States Plea Agreement Yes Yes Yes Yes No "The parties have to submit a new proposed settlement with settlement terms acceptable to the court."

United States DPA [DOJ] N/A N/A N/A N/A N/A No judicial oversight.

United States NPA [DOJ] N/A N/A N/A N/A N/A No judicial oversight.



United States Civil Resolutions [SEC] Yes Yes Yes No No



United States DPA [SEC] N/A N/A N/A N/A N/A No judicial oversight.

United States NPA [SEC] N/A N/A N/A N/A N/A No judicial oversight.


│ 189

Table 59. Consequences of court’s refusal to validate a resolution (Natural Persons)


The court can review terms and

conditions of resolution

The parties have to review the terms of

resolution


Court will review second, revised agreement



Yes No No No No

Argentina Cooperation Agreement Yes No Yes No No Rejection of the agreement by the court may be appealed by either party (section 10 Law 27.304)

Australia Plea Agreement N/A N/A N/A N/A N/A No judicial oversight.

Austria Diversion N/A N/A N/A N/A N/A No judicial oversight.




No Yes Yes No Yes


Yes No No No No

Canada Alternative Measures N/A N/A N/A N/A N/A No judicial oversight.

Canada Plea Agreement Yes Yes Yes Yes Yes “In some cases the case would proceed to trial at the prosecutor’s discretion. In the case of a plea agreement, the parties may have the opportunity to review the agreement and resubmit it for court approval. In rare case where there is an acceptance of guilt on the part of the accused, the court may overrule the parties and impose its own settlement. ” (Answer to Study Questionnaire)


Yes No No No No


Yes No No No No


Unknown Unknown Unknown Unknown Unknown


Unknown Unknown Unknown Unknown Unknown

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resolution




Costa Rica Declination with Confiscation Yes Yes No No Yes

Costa Rica Suspension of Proceedings Yes Yes No No Yes

Costa Rica Shortened proceeding Yes Yes No No Yes


No No No No No Other: "In such a case the court will return the case to pre-trial proceedings."


No No Yes No Yes Other: The prosecutor can also decide to bring the case to trial, if the pre-trial phase has been completed.


No No Yes No Yes Other: As above

Estonia Termination for cooperation No No Yes No Yes Other: As above

Estonia Alternative proceedings No No Yes No Yes Other: As above

Estonia Summary proceedings No No Yes No Yes Other: As above

Estonia Expedited procedure No No Yes No Yes Other: As above

Finland Plea Agreement No No No No No Other: If the court does not issue the judgement the case is withdrawn (Criminal Procedure Act Chapter 5(b) section 5(1)). However, it seems that there could be another attempt at a criminal trial if additional evidence is found ( see Criminal Procedure Act Chapter 5(b) section 5(2)).


Yes No No No No "[E]xcept in case of a new element" CCP art. 495-12

Germany Section 153a No No No No No Other: "If the requirements set forth in section 153a CCP are not met (i.e. if the degree of guilt precludes the termination of proceedings and/or the application of conditions and instructions cannot eliminate the public interest in criminal prosecution), then the public prosecutor's office shall prefer charges or apply for the issuance of a penal order." Phase 4 questionnaire p. 53

│ 191





resolution




Germany Negotiated Agreement No Yes Yes No No

Germany Penal Order Yes No No No No Other: If the judge does not consider that there are sufficient grounds for suspecting the indicted accused, he refuses to issue a penal order. (CCP art. 408 (2))


Yes No No No No



Israel Plea Agreement Yes No No No No Other: "In a case where the court accepts the admission of guilt but not the agreement regarding sanctions, this results in a conviction and a different verdict, which can be appealed by the parties."; "If the court does not accept the admission of guilt, the case will go to court."

Italy Patteggiamento Yes Yes Yes No Yes

Japan Agreement Procedure N/A N/A N/A N/A N/A Latvia Prosecutor's Penal Order N/A N/A N/A N/A N/A No judicial oversight.

Latvia Plea Agreement No No Yes No No


Yes Yes Yes No No “The appeal is filed by whoever is dissatisfied with the concession, refusal or revocation of the conditional suspension of the process.”

Mexico Summary Procedure No No No No No “Once that in the second instance the sentence is confirmed, the latter is definitive and an ordinary appeal is not allowed. Against said resolution can only be imposed an amparo proceeding.”

Netherlands Transaction N/A N/A N/A N/A N/A No judicial oversight

Netherlands Punitive order N/A N/A N/A N/A N/A No judicial oversight

Netherlands Conditional Dismissal N/A N/A N/A N/A N/A No judicial oversight

Norway Optional Penalty Writ N/A N/A N/A N/A N/A No judicial oversight.

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resolution





Yes No No No No

South Africa Plea Agreement Yes No Yes No No "Once rejected, it cannot be re-submitted, and the sentence may either be altered by the parties to such sentence as the presiding officer deem fit or the proceedings must resume their normal course of action." Phase 2 para. 153

Spain Conformidad No No Yes No Yes


Yes No No No No

Switzerland Summary Punishment Order N/A N/A N/A N/A N/A No judicial oversight.

United Kingdom Plea Agreement Yes Unknown Unknown Unknown Possibly Second chance: Depending on the circumstances a court may agree to an adjourment to allow a plea to be agreed


N/A N/A N/A N/A N/A Formal approval by a court only.

United States Plea Agreement Yes Yes Yes No Yes "The parties have to submit a new proposed settlement with settlement terms acceptable to the court."

United States DPA [DOJ] N/A N/A N/A N/A N/A No judicial oversight.

United States NPA [DOJ] N/A N/A N/A N/A N/A No judicial oversight.

United States Civil Resolutions [SEC] Yes No Yes No Yes



United States DPA [SEC] N/A N/A N/A N/A N/A No judicial oversight.

United States NPA [SEC] N/A N/A N/A N/A N/A No judicial oversight.


│ 193

Table 60. Authority determining compliance with terms of resolution (Legal Persons)

Country Resolution name (LP) Prosecution Authority Agency acting as law enforcement

body

Court Agency acting as administrative

court

Mixed Additional information


N/A N/A N/A N/A N/A “Control is only ex ante” (Answer to Study Questionnaire – follow-up clarification)


Yes No Yes No Yes

Australia Plea Agreement N/A N/A N/A N/A N/A

Austria Diversion Yes No Yes No Yes "It depends whether the diversional measures were applied by the public prosecutor (no indictment) or later by the court (after indictment). (See VbVG para. 19(2) referring to CCP 199)."


Yes No Yes No Yes "It depends whether the diversional measures were applied by the public prosecutor (no indictment) or later by the court (after indictment). (See CCP para. 209a referring to CCP 199) ."


No Yes No No No "Agreements carried out by the Office of the Comptroller General are monitored by CGU’s Auditors. Monitoring of implementation/ development of compliance programs can be systematically carried out for up to 3 years, though it can be verified until the agreement if fully implemented. The legal persons’ ability to pay is monitored during the whole payment period, since the period can be reduced according to possibilities verified."


Yes No No No No

Canada Plea Agreement No No Yes No No

Canada Remediation Agreement No No Yes No No


No No Yes No No


N/A N/A N/A N/A N/A


No No Yes No No

194 │


body


court



Yes No No No No


Yes No No No No

Estonia Termination for cooperation Yes No No No No

Estonia Alternative proceedings Unknown Unknown Unknown Unknown Unknown

Estonia Summary proceedings Unknown Unknown Unknown Unknown Unknown

Estonia Expedited procedure Unknown Unknown Unknown Unknown Unknown


Yes Yes No No Yes


N/A N/A N/A N/A N/A

Germany Administrative Resolution N/A N/A N/A N/A N/A

Germany Forfeiture Order N/A N/A N/A N/A N/A

Israel Plea Agreement Yes No Yes No Yes "When the terms are defined as a prerequisite to bringing the resolution before the court, the prosecution is responsible for determining whether or not the suspect has complied. Alternatively, when the terms cannot be completely filled prior to the court's approval and verdict, the prosecution would bring a claim before the court regarding the failure to comply, and the court has the authority to approve."

Italy Patteggiamento N/A N/A N/A N/A N/A "Control is only ex ante." Settlements consist in a reduction of sanctions plus other benefits; they do not regulate any future behaviour of the accused.

Japan Agreement Procedure Yes No Yes No Yes “Prosecutor may invalidate the Agreement where: (i) the suspect/defendant breaches the agreement; (ii) statements made by the suspect/defendant during the consultation before the Agreement turn out to be false; (iii) statements made by the suspect/defendant based on the Agreement turn out to be

│ 195


body


court


false; and (iv) evidence submitted by the suspect/defendant based on the Agreement turn out to be counterfieted or altered. For example, prosecutor may invalidate the agreement for suspension of indictment if one of the (i)-(iv) above is found. When prosecutor indicts the suspect after invalidating the agreement committing to suspension of the indictment, the suspect may assert at the trial that he/she has not breached the agreement, and that the indictment is invalid because the prosecutor's coduct is unlawful. In this case, the court shall decide on whether the suspect/defendant violated the Agreement unlawfully. If the court finds that the prosecutor indicted the suspect violaing the Agreement, the indictment will be dismissed.” (Answer to Study Questionnaire – Question 35)

Latvia Prosecutor's Penal Order Yes No Yes No Yes

Latvia Plea Agreement No No Yes No No


No No Yes No No

Mexico Summary Procedure Yes No Yes No No

Netherlands Transaction Yes No No No No

Netherlands Punitive Order Yes No No No No

Netherlands Conditional Dismissal Yes No No No No

Norway Optional Penalty Writ N/A N/A N/A N/A N/A "The National Collection Agency is responsible for following up on pecuniary sanctions. Other terms are not relevant."


No No Yes No No

South Africa Plea Agreement N/A N/A N/A N/A N/A

South Africa Consent Orders No Yes No No No

Spain Conformidad No No Yes No No

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body


court



N/A N/A N/A N/A N/A

Switzerland Summary Punishment Order N/A N/A N/A N/A N/A


No No Yes No No

United Kingdom Plea Agreement N/A N/A N/A N/A N/A


N/A N/A N/A N/A N/A

United Kingdom Administrative Order N/A N/A N/A N/A N/A Only financial penalties can be imposed. No need to control a posteriori.


Civil Resolution N/A N/A N/A N/A N/A Only disgorgement of profits is imposed. No need to control a posteriori.

United States Plea Agreement Yes No Yes No Yes

United States DPA [DOJ] Yes No Yes No Yes

United States NPA [DOJ] Yes No Yes No Yes


N/A N/A N/A N/A N/A Only disgorgement of profits is imposed. No need to control a posteriori.

United States Civil Resolutions [SEC] No Yes Yes No No


No No Yes Yes No

United States DPA [SEC] No Yes Yes Yes No

United States NPA [SEC] No Yes Yes Yes No


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Table 61. Authority determining compliance with terms of resolution (Natural Persons)

Country Resolution name Prosecution Authority Agency acting as law enforcement

body


court



N/A N/A N/A N/A N/A “Control is only ex ante” (Answer to Study Questionnaire – follow-up clarification)

Argentina Cooperation Agreement Yes No Yes No Yes

Australia Plea Agreement N/A N/A N/A N/A N/A

Austria Diversion Yes No Yes No Yes "It depends whether the diversional measures were applied by the public prosecutor (no indictment) or later by the court (after indictment)." (See CCP para. 199)


Yes No Yes No Yes "It depends whether the diversional measures were applied by the public prosecutor (no indictment) or later by the court (after indictment). (See CCP para. 209a referring to CCP 199) ."


Yes No Yes No Yes


Yes No Yes No Yes

Canada Alternative Measures Yes No No No No Canada Plea Agreement No No Yes No No Chile Conditional Suspension of

Proceedings No No Yes No No


N/A N/A N/A N/A N/A


Yes No No No No


Yes No No No No

Costa Rica Declination with Confiscation No No Yes No No

Costa Rica Suspension of Proceedings No No Yes No No

198 │


body


court


Costa Rica Shortened proceeding No No Yes No No


No No Yes No No


Yes No No No No


Yes No No No No

Estonia Termination for cooperation Yes No No No No

Estonia Alternative proceedings Unknown Unknown Unknown Unknown Unknown

Estonia Summary proceedings Unknown Unknown Unknown Unknown Unknown

Estonia Expedited procedure Unknown Unknown Unknown Unknown Unknown

Finland Plea Agreement N/A N/A N/A N/A N/A


N/A N/A N/A N/A N/A

Germany Section 153a Yes No Yes No Yes "The public prosecution office monitors compliance with the conditions imposed. The accused must demonstrate compliance, in particular by submitting written evidence of compliance for inclusion in the files. If the accused has already been indicted, the court may, with the consent of both the public prosecution office and the defendant, provisionally discontinue the proceedings and, upon compliance with the conditions imposed, terminate the proceedings with final effect."

Germany Negotiated Agreement N/A N/A N/A N/A N/A

Germany Penal Order N/A N/A N/A N/A N/A


No No Yes No No


Yes No No No No This procedure imposes confiscation and compensation charges, and obligations to co-operate are imposed.

Israel Plea Agreement Yes No Yes No Yes "When the terms are defined as a prerequisite to bringing the resolution before the court, the prosecution

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body


court


is responsible for determining whether or not the suspect has complied. Alternatively, when the terms cannot be completely filled prior to the court's approval and verdict, the prosecution would bring a claim before the court regarding the failure to comply, and the court has the authority to approve."

Italy Patteggiamento N/A N/A N/A N/A N/A "Control is only ex ante." Settlements consist in a reduction of sanctions plus other benefits; they do not regulate any future behaviour of the accused.

Japan Agreement Procedure Yes No Yes No Yes “Prosecutor may invalidate the Agreement where: (i) the suspect/defendant breaches the agreement; (ii) statements made by the suspect/defendant during the consultation before the Agreement turn out to be false; (iii) statements made by the suspect/defendant based on the Agreement turn out to be false; and (iv) evidence submitted by the suspect/defendant based on the Agreement turn out to be counterfieted or altered. For example, prosecutor may invalidate the agreement for suspension of indictment if one of the (i)-(iv) above is found. When prosecutor indicts the suspect after invalidating the agreement committing to suspension of the indictment, the suspect may assert at the trial that he/she has not breached the agreement, and that the indictment is invalid because the prosecutor's coduct is unlawful. In this case, the court shall decide on whether the suspect/defendant violated the Agreement unlawfully. If the court finds that the prosecutor indicted the suspect violaing the Agreement, the indictment will be dismissed.” (Answer to Study Questionnaire – Question 35)

Latvia Prosecutor's Penal Order Yes No Yes No Yes

Latvia Plea agreement No No Yes No No


No No Yes No No

Mexico Summary Procedure Yes No Yes No No

200 │


body


court


Netherlands Transaction Yes No No No No

Netherlands Punitive Order Yes No No No No

Netherlands Conditional dismissal Yes No No No No

Norway Optional Penalty Writ N/A N/A N/A N/A N/A "The National Collection Agency is responsible for following up on pecuniary sanctions. Other terms are not relevant."


No No Yes No No

South Africa Plea Agreement N/A N/A N/A N/A N/A

Spain Conformidad No No Yes No No


N/A Yes N/A N/A No In case of a custodial sentence, conduct orders may be imposed on the offender for the duration of the probationary period (SCC art. 94).

Switzerland Summary Punishment Order N/A Yes N/A N/A No In case of a custodial sentence, conduct orders may be imposed on the offender for the duration of the probationary period (SCC art. 94).

United Kingdom Plea Agreement N/A Yes Yes N/A Yes Agency: The Probation Service can exercise control if sentence is continued after the end of custodial term.


N/A N/A N/A N/A N/A

United States Plea Agreement Yes No Yes No Yes

United States DPA [DOJ] Yes No Yes No Yes

United States NPA [DOJ] Yes No Yes No Yes

United States Civil Resolutions [SEC] No Yes Yes No Yes


No No Yes Yes Yes

United States DPA [SEC] No Yes Yes Yes Yes

United States NPA [SEC] No Yes Yes Yes Yes


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Table 62. If the terms of a resolution are not properly respected, can it be repealed? (Legal Persons)

Country Resolution name Can resolution be repealed? (Yes/No)

If answer is "yes" - repeal of resolution leads to indictment/prosecution of accused: (Automatically/ At discretion of prosecution or other law enforcement authority/ Does

not lead to indictment or prosecution)



No N/A “Control is only ex ante” (Answer to Study Questionnaire – follow-up clarification)


Yes Automatic "If the authenticity and usefulness [of the information provided by the legal entity in compliance with the effective cooperation agreement] is confirmed, the sentence shall comply with the requirements set forth in the agreement, and no other sanction may be imposed. Otherwise, the judges shall nullify the agreement and the proceedings will continue in accordance with the general rules." see Law 27.401 art. 21 (unofficial translation) Note: Either the Court or Prosecution can make this determination

Australia Plea Agreement N/A N/A

Austria Diversion Yes Discretionary The resolution can be repealed under the circumstances provided for in CCP, para. 205. If the accused does not comply with the terms of the resolution, for

instance if they do not pay fully and in time the amount of money, the prosecutor can continue the criminal proceedings. However, the prosecutor may refrain in

consideration of special circumstances (for instance, if demanding to fulfil a certain obligation would cause undue hardship). (Answer to Study Questionnaire – follow-up

clarification)


Yes Discretionary CCP para. 209a(5) "If 1. The obligation to cooperate in the investigation has been violated or 2. the documents and information provided were incorrect, did not make a material contribution within the meaning of paragraph (1), or were merely given to disguise one's own leading activity in a conspiracy, association or organization referred to in paragraph (1) (3), may the persecution provided under paragraph 4 be resumed, unless the public prosecutor has not made the orders necessary for readmission within a period of fourteen days from the date of service of the decision terminating the proceedings […]."


Yes Automatic


Yes Automatic

Canada Plea Agreement Unknown N/A

202 │





Canada Remediation Agreement Yes Discretionary “Remediation Orders: 715.39 (1) On application by the prosecutor, the court must, by order, terminate the agreement if it is satisfied that the organization has breached a term of the agreement. Recommencement of proceedings (2) As soon as the order

is made, proceedings stayed in accordance with subsection

715.37(7) may be recommenced, without a new information

or a new indictment, as the case may be, by the prosecutor

giving notice of the recommencement to the clerk of the

court in which the stay of the proceedings was entered.”

(Answer to Study Questionnaire) Chile Conditional Suspension of

Proceedings Yes Automatic Column C: Prosecutor or victim need to request the revocation of the conditional

suspension (CCP art. 239) Chile Expedited


No N/A Only ex ante control.


No N/A


Yes Discretionary


Yes Discretionary

Estonia Termination for cooperation Yes Discretionary

Estonia Alternative proceedings Unknown Unknown

Estonia Summary proceedings Unknown Unknown

Estonia Expedited procedure Unknown Unknown

France Public Interest Judicial Agreement (Convention Judiciaire d’Intérêt Public -

Yes Automatic The law provides that repeal of resolution leads automatically to prosecution "except if there are new elements" (CCP art. 41-1-2 (III))

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CJIP)



Germany Administrative Resolution No N/A

Germany Forfeiture Order No N/A

Israel Plea Agreement Yes Discretionary "This depends on the content of the agreement. If the agreement requires the suspect to comply with terms as a prerequisite to submitting the resolution for court approval, the prosecution will determine whether or not to prosecute depending on the circumstances. If the agreement was approved by court, and a verdict was issued, the prosecution could bring a claim before the court to repeal the agreement or to alter it, depending on the specific circumstances."

Italy Patteggiamento No N/A "Only ex ante control."

Japan Agreement Procedure Yes Discretionary “Prosecutor may invalidate the Agreement where: (i) the suspect/defendant breaches the agreement; (ii) statements made by the suspect/defendant during the consultation before the Agreement turn out to be false; (iii) statements made by the suspect/defendant based on the Agreement turn out to be false; and (iv) evidence submitted by the suspect/defendant based on the Agreement turn out to be counterfieted or altered. For example, prosecutor may invalidate the agreement for suspension of indictment if one of the (i)-(iv) above is found. When prosecutor indicts the suspect after invalidating the agreement committing to suspension of the indictment, the suspect may assert at the trial that he/she has not breached the agreement, and that the indictment is invalid because the prosecutor's coduct is unlawful. (…)” (Answer to Study Questionnaire – Question 35)

Latvia Prosecutor's Penal Order Yes Discretionary "According to section 423(2) of the Criminal Procedure Law if a person has agreed to a penal order, yet does not execute such punishment, the authority responsible for the execution of the punishment shall propose, in accordance with the procedures laid down in this Law, a matter regarding the replacement of the punishment in accordance with procedures provided for by law."

204 │





Latvia Plea Agreement Yes Discretionary


Yes Discretionnary “In case the terms of the conditional suspension of the process are not met, a judge decides in a hearing if the ordinary procedure is to be continued.”

Mexico Summary Procedure No N/A

Netherlands Transaction Yes Discretionary

Netherlands Punitive Order Yes Discretionary "If the conditions are not met the prosecutor can decide (and normally will decide) to prosecute the defendant and go to court." However, see also answer provided to question 6 " The prosecutor has the authority to find the accused guilty of a crime, and impose a punishment, ranging from a fine to community sentence or a restraining order. No judge is involved, and if the accused does not ‘appeal’ within fourteen days, the punitive order becomes executable and the accused receives a criminal record equal to a criminal conviction by a judge in a criminal trial."

Netherlands Conditional dismissal Yes Discretionary "If the conditions of the settlement are not met the prosecutor can decide (and normally will decide) to prosecute the defendand and go to court."

Norway Optional Penalty Writ No N/A "The National Collection Agency is responsible for following up on pecuniary sanctions. Other terms are not relevant."


Yes Automatic

South Africa Plea Agreement No N/A Only ex ante control.

South Africa Consent Orders Yes Discretionary

Spain Conformidad No N/A



Switzerland Summary Punishment Order No N/A Only ex ante control.


Yes Discretionary "Gravity of the breach. Before re-opening proceedings, the prosecutor must be satisfied that the Full Code Test under the Code for Crown Prosecutors is met in relation to each charge. The court will have been informed at the final hearing if the

│ 205





original charge was pursuant to the second limb of the evidential stage at in which case the prosecutor will now need to be satisfied that the more stringent evidential stage of the Full Code Test is met. Furthermore the public interest position will need reassessing in light of the breach."

United Kingdom Plea Agreement No N/A Only ex ante control.


Yes Discretionary "There are no sanctions for the company if it fails to comply with these voluntary undertakings. The Director of the SFO, however, indicated that the SFO could re-open its investigation." Phase 2 bis para.91

United Kingdom Administrative Order No N/A Only financial penalties can be imposed.


Civil Resolution No N/A Only disgorgement of profits is imposed.

United States Plea Agreement No N/A

United States DPA [DOJ] Yes Discretionary "Same factors that would always factor into whether to prosecute, including the ability to prove the case beyond a reasonable doubt."

United States NPA [DOJ] Yes Discretionary As above


Yes Discretionary

United States Civil Resolutions [SEC] Yes Discretionary


Yes Discretionary

United States DPA [SEC] Yes Discretionary

United States NPA [SEC] Yes Discretionary


206 │

Table 63. If the terms of a resolution are not properly respected, can it be repealed? (Natural Persons)

Country Resolution name Yes/No If answer is "yes" - repeal of resolution leads to indictment/prosecution of accused:

(Automatic/Discretionary/ Does not lead to indictment or prosecution)



No N/A “Control is only ex ante” (Answer to Study Questionnaire – follow-up clarification)

Argentina Cooperation Agreement Yes Automatic "Within a maximum term of one (1) year, the judge or prosecutor shall control compliance with the obligations undertaken by the repentant offender under the agreement, especially the truthfulness and usefulness, either in full or in part, of the information supplied. During such term, the statute of limitations on the criminal action shall be suspended". Law on Repentant Offenders, section 13.

Australia Plea Agreement N/A N/A

Austria Diversion Yes Discretionary


Yes Discretionary


Yes Discretionary "The repeal of a resolution with a NP will lead to serving the full penalty. Prosecution for other crimes may resume as well."


Yes Automatic

Canada Alternative Measures Yes Discretionary “If the offender fails to complete the alternative measure, criminal proceedings should ordinarily be continued. However, before doing so, Crown counsel should determine why the measure was not completed and determine whether it could be completed. Crown counsel should assess the appropriateness of proceeding with a prosecution in light of those facts, as exceptional circumstances may exist that would make proceeding against the offender unfair.” (Answer to Study Questoinnaire)

Canada Plea Agreement Unknown N/A Chile Conditional Suspension of

Proceedings Yes Discretionary Column C: Prosecutor or victim need to request the revocation of the conditional

suspension (CCP art. 239); Chile Expedited


N/A N/A Only ex ante control.


Yes Automatic

│ 207





Yes Automatic

Costa Rica Declination with Confiscation Yes Automatic Costa Rica Suspension of Proceedings Yes Automatic Costa Rica Shortened proceeding Yes Automatic Czech Republic Agreement on Guilt and

Punishment (AGP) No N/A


Yes Discretionary


Yes Discretionary

Estonia Termination for cooperation Yes Discretionary Estonia Alternative proceedings Unknown Unknown Estonia Summary proceedings Unknown Unknown Estonia Expedited procedure Unknown Unknown Finland Plea Agreement No N/A Only ex ante control. France Guilty Plea (Comparution sur



Germany Section 153a Yes Discretionary "The main question is whether the investigations offer sufficient reason for preferring public charges."

Germany Negotiated Agreement No N/A Only ex ante control. Germany Penal Order Unknown Unknown


Unknown Unknown


Yes Automatic

Israel Plea Agreement Yes Discretionary "This depends on the content of the agreement. If the agreement requires the suspect to comply with terms as a prerequisite to submitting the resolution for court approval, the prosecution will determine whether or not to prosecute depending on the circumstances. If the agreement was approved by court, and a verdict was issued, the prosecution could bring a claim before the court to repeal the agreement or to alter it, depending on the specific circumstances."

208 │




Italy Patteggiamento No N/A "Only ex ante control." Japan Agreement Procedure Yes Discretionary “Prosecutor may invalidate the Agreement where: (i) the suspect/defendant breaches

the agreement; (ii) statements made by the suspect/defendant during the consultation before the Agreement turn out to be false; (iii) statements made by the suspect/defendant based on the Agreement turn out to be false; and (iv) evidence submitted by the suspect/defendant based on the Agreement turn out to be counterfieted or altered. For example, prosecutor may invalidate the agreement for suspension of indictment if one of the (i)-(iv) above is found. When prosecutor indicts the suspect after invalidating the agreement committing to suspension of the indictment, the suspect may assert at the trial that he/she has not breached the agreement, and that the indictment is invalid because the prosecutor's coduct is unlawful. (…)” (Answer to Study Questionnaire – Question 35)

Latvia Prosecutor's Penal Order Yes Discretionary "According to section 423(2) of the Criminal Procedure Law if a person has agreed to a penal order, yet does not execute such punishment, the authority responsible for the execution of the punishment shall propose, in accordance with the procedures laid down in this Law, a matter regarding the replacement of the punishment in accordance with procedures provided for by law."

Latvia Plea Agreement N/A N/A


Yes Discretionnary “In case the terms of the conditional suspension of the process are not met, a judge decides in a hearing if the ordinary procedure is to be continued.”

Mexico Summary Procedure No N/A Netherlands Transaction Yes Discretionary Netherlands Punitive Order Yes Discretionary "If the conditions are not met the prosecutor can decide (and normally will decide) to

prosecute the defendant and go to court." However, see also answer provided to question 6 " The prosecutor has the authority to find the accused guilty of a crime, and impose a punishment, ranging from a fine to community sentence or a restraining order. No judge is involved, and if the accused does not ‘appeal’ within fourteen days, the punitive order becomes executable and the accused receives a criminal record equal to a criminal conviction by a judge in a criminal trial."

Netherlands Conditional dismissal Yes Discretionary "If the conditions are not met the prosecutor can decide (and normally will decide) to prosecute the defendand and go to court."

Norway Optional Penalty Writ No N/A Slovenia Agreement on the Confession

of Guilt Yes Automatic

│ 209




South Africa Plea Agreement No N/A Only ex ante control. Spain Conformidad No N/A


Yes Discretionary If the offender commits a felony or misdemeanour during the probationary period, the court shall revoke the suspended sentence if it expects the accused will commit further offences If there is no such expectation, the court shall not revoke suspended sentence. See SCC, art. 46 (1) and (2). Additionally, if the offender fails to comply with the conditions of probation or the any conduct orders, the court or the executive authority may: (a) extend the probationary period by one half; (b) revoke or reorganise the probation; (c) modify or revoke the conduct orders or issue new conduct orders. See SCC art. 95(3) and (4).

Switzerland Summary Punishment Order Yes Discretionary If the offender commits a felony or misdemeanour during the probationary period, the court shall revoke the suspended sentence if it expects the accused will commit further offences If there is no such expectation, the court shall not revoke suspended sentence. See SCC, art. 46 (1) and (2). Additionally, if the offender fails to comply with the conditions of probation or the any conduct orders, the court or the executive authority may: (a) extend the probationary period by one half; (b) revoke or reorganise the probation; (c) modify or revoke the conduct orders or issue new conduct orders. See SCC art. 95(3) and (4).

United Kingdom Plea Agreement No N/A Only ex ante control. United Kingdom Consent Order for Civil

Recovery Yes Discretionary "There are no sanctions for the company if it fails to comply with these voluntary

undertakings. The Director of the SFO, however, indicated that the SFO could re-open its investigation." Phase 2 bis para.91

United States Plea Agreement No N/A

United States DPA [DOJ] Yes Discretionary "Same factors that would always factor into whether to prosecute, including the ability to prove the case beyond a reasonable doubt."

United States NPA [DOJ] Yes Discretionary "Same factors that would always factor into whether to prosecute, including the ability to prove the case beyond a reasonable doubt."

United States Civil Resolutions [SEC] Yes Discretionary "Preponderance of the evidence." United States Administrative Resolutions

[SEC] Yes Discretionary "Preponderance of the evidence."

United States DPA [SEC] Yes Discretionary "Preponderance of the evidence." United States NPA [SEC] Yes Discretionary "Preponderance of the evidence."


210 │

Table 64. Public availability of resolutions (Legal Persons)

Country Resolution name (LP) Resolution made

available?

How is it available?

If online, the address Press release?



It depends Online https://www.cij.gov.ar/inicio.html No [Source: Response to the Cross Country tables]


It depends Online https://www.cij.gov.ar/inicio.html No Not as a rule. "It may be published as a whole or partially as part of the agreement." [Source: Response to the Cross Country tables]

Australia Plea Agreement No N/A N/A No "Concluded resolutions are generally not available, however the charges to which the accused plead guilty following the charge negotiations are, in most cases, a matter of public record." Source: Answer to Questionnaire - Question 42

Austria Diversion No N/A N/A No


No N/A N/A No


It depends Online http://www.portaltransparencia.gov.br/sancoes/acordos-leniencia?ordenarPor=dataInicioAcordo&direcao=asc

Yes Agreements will be made public as long as it does not affect the interest of ongoing investigations and civil or administrative measures against others involved..


Yes Online Unknown Yes Agreements will be made public as long as it does not affect the interest of ongoing investigations. Source: Phase 3 follow-up Report p.32

Canada Plea Agreement Yes Unknown No Canada Remediation Agreement Yes Unknown No Remediation agreements are published, unless it is necessary for the administration

of justice not to publish a settlement. (Answer to Study Questionnaire) Chile Conditional Suspension of

Proceedings It depends Unknown N/A No [Please specify where and to whom the resolution would be made available.]


Yes Upon request

N/A No

Czech Republic


No N/A N/A No "The decision to publish AGPs concerning natural and legal persons is discretionary." Source: Phase 4 para. 81


No N/A N/A No


No N/A N/A No

https://www.cij.gov.ar/inicio.html

https://www.cij.gov.ar/inicio.html

│ 211


available?




Estonia Termination for cooperation No N/A N/A No

Estonia Alternative proceedings No N/A N/A No

Estonia Summary proceedings No N/A N/A No

Estonia Expedited procedure No N/A N/A No


Yes Online https://www.economie.gouv.fr/afa Yes France confirmed in its answers to the Cross-Country tables that a press release is issued. (Penal Code art. 41-1-2)


No N/A N/A No

Germany Administrative Resolution No N/A N/A Yes Germany Forfeiture Order No N/A N/A Yes Israel Plea Agreement Yes Online https://www.gov.il/he/

Departments/the_judicial_authority

No "Since the agreement must be approved and decided by the court, the judgement is available as are all court decisions." Source: Answer to Questionnaire - Question 42. Israel wishes to clarify (response to Cross-Country tables) that the resolution itself is not publicly available but the judgment is.

Italy Patteggiamento It depends Only persons with interest

N/A No Legislative Decree n. 196/2003 art. 51 (Personal Data Protection Code): "[A]ny entity interested in judgements and other decisions of judicial authorities that have been deposited with the court’s clerk’s office shall have access to them, also by means of the information systems and institutional sites of said authorities on the Internet, in compliance with the respect of personal data guarantees."

Japan Agreement Procedure Yes Upon request

N/A Unknown “[Concluded settlements] can only be viewed and copied at the court where they were filed” (Answer to Study Questionnaire)

Latvia Prosecutor's Penal Order No N/A N/A Yes

Latvia Plea Agreement Yes Online https://manas.tiesas.lv/eTiesasMvc/nolemumi

Yes


No N/A N/A No

Mexico Summary Procedure It depends N/A N/A No “As a penalty is possible to specifically establish the publication of the sentence, in case of legal persons.”

https://www.gov.il/he/%20Departments/the_judicial_authority


212 │


available?




Netherlands Transaction Yes Online https://www.om.nl Yes "The rules for out-of-court settlements involving a “high level” of financial sanctions are set out in the Directive. These include cases where the “high fixed penalty” exceeds EUR 50 000. In such cases, a press release is mandatory, including information on the offence, the name of the natural and/or legal persons involved, and the amount of the fine." Phase 3 para. 86. In recent cases, the prosecution has made the resolution itslef publicly available on its website.

Netherlands Punitive Order Yes Upon request

N/A Unknown "Article 257h Criminal Procedure Code 2. The public prosecutor shall provide, on request, a copy of a punitive order to any person other than the suspect or his defence counsel, unless the public prosecutor considers that provision of said copy should be refused, in whole or part, for the protection of the interests of the person against whom the punitive order has been issued or of the third parties whose names are mentioned in the punitive order. In the latter case the public prosecutor may provide an anonymised copy of the punitive order. 3. If a copy or an anonymised copy is not provided within fourteen days, the applicant may file a written complaint with the public prosecutor, who shall promptly bring the written complaint and the case documents to the cognisance of the District Court. In derogation of section 23(4), the participants in the criminal proceedings shall not have the right to inspect the case documents other than to the extent permitted by the District Court."

Netherlands Conditional dismissal No N/A N/A Sometimes

Norway Optional Penalty Writ Yes Upon request

N/A Yes Press releases available on Økokrim's website.


Yes Only at court N/A No

South Africa Plea Agreement Yes Only at court N/A No

South Africa Consent Orders No N/A N/A No

Spain Conformidad Yes Online http://www.poderjudicial.es/search/indexAN.jsp

No Anonymised full judgement available online.


Yes Online https://bstger.weblaw.ch/index.php?method=news&ul=de

Sometimes "Press release will be issued if it is a case of higher public interest." Source: Answer to Questionnaire - Question 43

Switzerland Summary Punishment Order Yes Only persons with interest

N/A Sometimes CPC art. 69(2): "only accessible to “interested persons”. FCC case law: access to interested persons, where “the requesting party proves an interest in the information which is worthy of protection and no overriding public or private interest precludes the consultation requested”. If this is the case, the orders can be consulted viewed on-site and by request (including the complete order for 30 days after it is adopted).

http://www.poderjudicial.es/search/indexAN.jsp

http://www.poderjudicial.es/search/indexAN.jsp

https://bstger.weblaw.ch/index.php?method=news&ul=de


│ 213


available?




United Kingdom


Yes Online https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/deferred-prosecution-agreements/

Yes

United Kingdom

Plea Agreement Yes Upon request

N/A Yes "Sentencing remarks and judgments are not routinely published and would generally only be available for a significant transcription fee." Source: Phase 4 para.159

United Kingdom


No N/A N/A Yes

United Kingdom

Administrative Order Yes Online https://www.fca.org.uk/ (under press releases for procedure against specific company)

Yes


Civil Resolution Yes Unknown N/A Unknown

United States Plea Agreement Yes Online https://www.justice.gov/criminal-fraud/related-enforcement-actions

Yes "In addition to being publicly filed, the DOJ places all of its plea agreements on its website, unless such agreements were filed confidentially (under seal) to protect the safety of cooperating witnesses or the integrity of the investigation. Once the plea agreement is unsealed, it is then posted on the DOJ’s website." Source: Answer to Questionnaire - Question 42

United States DPA [DOJ] Yes Online https://www.justice.gov/criminal-fraud/related-enforcement-actions

Yes

United States NPA [DOJ] Yes Online https://www.justice.gov/criminal-fraud/related-enforcement-actions

Yes


Yes Online https://www.justice.gov/criminal-fraud/pilot-program/declinations

No

United States Civil Resolutions [SEC] Yes Online https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml

Yes


Yes Online https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml

Yes

United States DPA [SEC] Yes Online https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml

Yes

United States NPA [SEC] Yes Online https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml

Yes


https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/deferred-prosecution-agreements/



214 │

Table 65. Public availability of resolutions (Natural Persons)

Country Resolution name (NP) Resolution made

available?





No N/A N/A No

Argentina Cooperation Agreement

No N/A N/A No

Australia Plea Agreement No N/A N/A No "Concluded resolutions are generally not available, however the charges to which the accused plead guilty following the charge negotiations are, in most cases, a matter of public record." Source: Answer to Questionnaire - Question 42

Austria Diversion No N/A N/A No


No N/A N/A No


No N/A N/A No Agreements will be made public as long as it does not affect the interest of ongoing investigations. Source: Phase 3 follow-up Report p.34


No N/A N/A No

Canada Alternative Measures Yes Unknown N/A No

Canada Plea Agreement Yes Unknown N/A No


Yes Upon request N/A No



Colombia Declination with confiscation (Code of Criminal Procedure art.


│ 215


available?




324)


Yes Online Unknown No





Costa Rica Shortened proceeding Yes Upon request N/A No

Czech Republic


No N/A N/A No "The decision to publish AGPs concerning natural and legal persons is discretionary." Source: Phase 4 para. 81


No N/A N/A


No N/A N/A No


No N/A N/A No

Estonia Alternative proceedings No N/A N/A No

Estonia Summary proceedings No N/A N/A No

Estonia Expedited procedure No N/A N/A No

Finland Plea Agreement Yes Upon request N/A No "Finland specified that anyone can ask the court to provide the decision against a small fee and that Finnish media have reported plea bargaining decisions in a number of instances." Phase 4 para. 97


No N/A N/A No

Germany Section 153a No N/A N/A Sometimes

Germany Negotiated Agreement No N/A N/A Sometimes

216 │


available?




Germany Penal Order No N/A N/A Unknown




No N/A N/A No

Israel Plea Agreement Yes Online https://www.gov.il/he/ Departments/the_judicial_authority No "Since the agreement must be approved and decided by the court, the judgement is available as are all court decisions." Source: Answer to Questionnaire - Question 42. Israel wishes to clarify (response to Cross-Country tables) that the resolution itself is not publicly available but the judgment is.

Italy Patteggiamento Yes Only persons with interest

N/A No Legislative Decree n. 196/2003 art. 51 (Personal Data Protection Code): "[A]ny entity interested in judgements and other decisions of judicial authorities that have been deposited with the court’s clerk’s office shall have access to them, also by means of the information systems and institutional sites of said authorities on the Internet, in compliance with the respect of personal data guarantees."

Japan Agreement Procedure Yes Upon request N/A Unknown “[Concluded settlements] can only be viewed and copied at the court where they were filed” (Answer to Study Questionnaire)


No N/A N/A Yes

Latvia Plea Agreement Yes Online https://manas.tiesas.lv/eTiesasMvc/nolemumi No


No N/A N/A No

Mexico Summary Procedure No N/A N/A No

Netherlands Transaction Yes Online https://www.om.nl Yes "The rules for out-of-court settlements involving a “high level” of financial sanctions are set out in the Directive. These include cases where the “high fixed penalty” exceeds EUR 50 000. In such cases, a press release is mandatory, including information on the offence, the name of the natural and/or legal persons involved, and the amount of the fine." Phase 3 para.86. In recent cases, the prosecution has made the resolution i publicaly available on its website.


│ 217


available?




Netherlands Punitive Order Yes Upon request N/A Unknown "Article 257h Criminal Procedure Code:2. The public prosecutor shall provide, on request, a copy of a punitive order to any person other than the suspect or his defence counsel, unless the public prosecutor considers that provision of said copy should be refused, in whole or part, for the protection of the interests of the person against whom the punitive order has been issued or of the third parties whose names are mentioned in the punitive order. In the latter case the public prosecutor may provide an anonymised copy of the punitive order. 3. If a copy or an anonymised copy is not provided within fourteen days, the applicant may file a written complaint with the public prosecutor, who shall promptly bring the written complaint and the case documents to the cognisance of the District Court. In derogation of section 23(4), the participants in the criminal proceedings shall not have the right to inspect the case documents other than to the extent permitted by the District Court."

Netherlands Conditional dismissal No N/A N/A Sometimes

Norway Optional Penalty Writ Yes Upon request N/A Yes Press releases available on Økokrim's website.



South Africa Plea Agreement Yes Only at court N/A No

Spain Conformidad Yes Online http://www.poderjudicial.es/search/indexAN.jsp No Sentences, once anonymized, are publicly available at the CENDOJ. A full judgement (anonymized) is available online (see judgement 3/2017 sent as attachment). However, without having some specific knowledge, it is practically very difficult to find information on plea agreements.


Yes Online https://bstger.weblaw.ch/index.php?method=news&ul=de Sometimes


Yes Only persons with interest

N/A Sometimes CPC art. 69(2): "only accessible to “interested persons”. FCC case law: access to interested persons, where “the requesting party proves an interest in the information which is worthy of protection and no overriding public or private interest precludes the consultation requested”. If this is the case, the orders can be consulted viewed on-


218 │


available?




site and by request (including the complete order for 30 days after it is adopted).

United Kingdom

Plea Agreement Yes Upon request N/A Yes "Sentencing remarks and judgments are not routinely published and would generally only be available for a significant transcription fee." Source: Phase 4 para.159

United Kingdom


No N/A N/A Yes

United States

Plea Agreement Yes Online https://www.justice.gov/criminal-fraud/related-enforcement-actions

Yes "In addition to being publicly filed, the DOJ places all of its plea agreements on its website, unless such agreements were filed confidentially (under seal) to protect the safety of cooperating witnesses or the integrity of the investigation. Once the plea agreement is unsealed, it is then posted on the DOJ’s website." Source: Answer to Questionnaire - Question 42

United States

DPA [DOJ] Yes Online https://www.justice.gov/criminal-fraud/related-enforcement-actions

Yes

United States

NPA [DOJ] Yes Online https://www.justice.gov/criminal-fraud/related-enforcement-actions

Yes

United States

Civil Resolutions [SEC] Yes Online https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml Yes

United States

Administrative Resolutions [SEC]

Yes Online https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml Yes

United States

DPA [SEC] Yes Online https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml Yes

United States

NPA [SEC] Yes Online https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml Yes


https://www.justice.gov/criminal-fraud/related-enforcement-actions




https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml

https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml

│ 219

Table 66. What terms / information of the resolution are published? (Legal Persons)

This table should be read in connection with Figure 64. Currently, all countries with resolutions are listed in this table for verification purposes. If in Figure

66, a country was marked as “No”, then all the entries in Figure 66 are marked with “N/A”. Once countries have verified this information, countries with only

N/As will ultimately be removed from this table.

Country Resolution name (LP) Offender's name Facts Bribe amount Bribetaker

details NPs involved Relevant

offence(s) Fines Confiscated

sums Remedial measures

undertaken Argentina Penalty Exemption (Exención

de Pena) Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown


Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Australia Plea Agreement N/A N/A N/A N/A N/A N/A N/A N/A N/A

Austria Diversion N/A N/A N/A N/A N/A N/A N/A N/A N/A


N/A N/A N/A N/A N/A N/A N/A N/A N/A


Yes No Yes No No Yes Yes Yes Yes


Yes No No No No Yes Yes No Yes

Canada Plea Agreement Yes Yes Yes Yes Yes Yes Yes Yes Yes

Canada Remediation Agreement Yes Yes Yes Yes Yes Yes Yes Yes Yes











220 │

Country Resolution name (LP) Offender's name Facts Bribe amount Bribetaker details

NPs involved Relevant offence(s)

Fines Confiscated sums

Remedial measures undertaken

Estonia Termination for cooperation N/A N/A N/A N/A N/A N/A N/A N/A N/A

Estonia Alternative proceedings N/A N/A N/A N/A N/A N/A N/A N/A N/A

Estonia Summary proceedings N/A N/A N/A N/A N/A N/A N/A N/A N/A

Estonia Expedited procedure N/A N/A N/A N/A N/A N/A N/A N/A N/A


Yes Yes Yes Yes No Yes Yes Yes Yes



Germany Administrative Resolution Yes Yes No No No Yes Yes Yes Unknown

Germany Forfeiture Order Yes Yes No No No Yes Yes Yes Unknown

Israel Plea Agreement Yes Yes Yes No No Yes Yes Yes Yes

Italy Patteggiamento Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Japan Agreement Procedure N/A N/A N/A N/A N/A N/A N/A N/A N/A

Latvia Prosecutor's Penal Order Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Latvia Plea Agreement No Yes Yes Yes No Yes Yes Yes Yes



Mexico Summary Procedure N/A N/A N/A N/A N/A N/A N/A N/A N/A

Netherlands Transaction Yes Yes Yes Yes No Yes Yes Yes Yes

Netherlands Punitive Order Unknown Yes Yes Yes No Yes Yes Yes Yes

Netherlands Conditional dismissal Unknown Yes Yes Yes No Yes Yes Yes Yes

Norway Optional Penalty Writ Yes Yes Yes Yes No Yes Yes Yes No

│ 221

Country Resolution name (LP) Offender's name Facts Bribe amount Bribetaker details

NPs involved Relevant offence(s)

Fines Confiscated sums

Remedial measures undertaken



South Africa Plea Agreement Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

South Africa Consent Orders N/A N/A N/A N/A N/A N/A N/A N/A N/A

Spain Conformidad Yes Yes Yes Yes No Yes Yes No No


No Yes Yes Yes No Yes Yes Yes Yes

Switzerland Summary Punishment Order Yes Yes Yes Yes No Yes Yes Yes Yes


Yes Yes Yes Yes Yes Yes Yes Yes Yes

United Kingdom Plea Agreement Yes Yes Yes No No No Yes Yes No


Yes Yes No No No Yes Yes No No

United Kingdom Administrative Order Yes Yes No No No Yes Yes No Yes


Civil Resolution Yes Yes No No No Yes Yes No No

United States Plea Agreement Yes Yes Yes Yes Yes Yes Yes Yes Yes

United States DPA [DOJ] Yes Yes Yes Yes Yes Yes Yes Yes Yes

United States NPA [DOJ] Yes Yes Yes Yes Yes Yes Yes Yes Yes


Yes Yes Yes Yes Yes Yes No Yes Yes

United States Civil Resolutions [SEC] Yes Yes Yes Yes Yes Yes Yes Yes Yes



United States DPA [SEC] Yes Yes Yes Yes Yes Yes Yes Yes Yes

United States NPA [SEC] Yes Yes Yes Yes Yes Yes Yes Yes Yes


222 │

Table 67. What terms/information of the resolution are published? (Natural Persons)

This table should be read in connection with Figure 65. Currently, all countries with resolutions are listed in this table for verification purposes. If in Figure

67, a country was marked as “No”, then all the entries in Figure 67 are marked with “N/A”. Once countries have verified this information, countries with only

N/As will ultimately be removed from this table.

Country Resolution name (NP) Offender's name Facts Bribe amount Bribetaker details

Name LPs involved

Relevant offence(s)

Fine amount Confiscated amount

Remedial measures

undertaken Argentina Abbreviated Procedure (Juicio

Abreviado) N/A N/A N/A N/A N/A N/A N/A N/A N/A

Argentina Cooperation Agreement N/A N/A N/A N/A N/A N/A N/A N/A N/A

Australia Plea Agreement N/A N/A N/A N/A N/A N/A N/A N/A N/A

Austria Diversion N/A N/A N/A N/A N/A N/A N/A N/A N/A







Canada Alternative Measures Yes Yes Yes Yes Yes Yes N/A Yes Yes

Canada Plea Agreement Yes Yes Yes Yes Yes Yes Yes Yes Yes









Costa Rica Declination with Confiscation N/A N/A N/A N/A N/A N/A N/A N/A N/A

Costa Rica Suspension of Proceedings N/A N/A N/A N/A N/A N/A N/A N/A N/A

│ 223


Name LPs involved

Relevant offence(s)


Remedial measures

undertaken Costa Rica Shortened proceeding N/A N/A N/A N/A N/A N/A N/A N/A N/A







Estonia Termination for cooperation N/A N/A N/A N/A N/A N/A N/A N/A N/A

Estonia Alternative proceedings N/A N/A N/A N/A N/A N/A N/A N/A N/A

Estonia Summary proceedings N/A N/A N/A N/A N/A N/A N/A N/A N/A

Estonia Expedited procedure N/A N/A N/A N/A N/A N/A N/A N/A N/A

Finland Plea Agreement Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown



Germany Diversion N/A N/A N/A N/A N/A N/A N/A N/A N/A

Germany Negotiated Agreement N/A N/A N/A N/A N/A N/A N/A N/A N/A

Germany Penal Order N/A N/A N/A N/A N/A N/A N/A N/A N/A





Israel Plea Agreement Yes Yes Yes Yes Yes Yes Yes

Italy Patteggiamento Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Japan Agreement Procedure N/A N/A N/A N/A N/A N/A N/A N/A N/A

Latvia Prosecutor's Penal Order Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Latvia Plea Agreement No Yes Yes Yes No Yes Yes Yes Yes



224 │


Name LPs involved

Relevant offence(s)


Remedial measures

undertaken Mexico Summary Procedure N/A N/A N/A N/A N/A N/A N/A N/A N/A

Netherlands Transaction Yes Yes Yes Yes No Yes Yes Yes Yes

Netherlands Punitive Order Unknown Yes Yes Yes No Yes Yes Yes Yes

Netherlands Conditional dismissal Unknown Yes Yes Yes No Yes Yes Yes Yes

Norway Optional Penalty Writ Yes Yes Yes Yes No Yes Yes Yes No



South Africa Plea Agreement Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

Spain Conformidad No Yes Yes Yes No Yes Yes No No


No Yes Yes Yes No Yes Yes Yes Yes

Switzerland Summary Punishment Order Yes Yes Yes Yes Yes Yes Yes Yes Yes

United Kingdom Plea Agreement Yes Yes Yes No No No Yes Yes No



United States Plea Agreement Yes Yes Yes Yes Yes Yes Yes Yes Yes

United States DPA [DOJ] Yes Yes Yes Yes Yes Yes Yes Yes Yes

United States NPA [DOJ] Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown

United States Civil Resolutions [SEC] Yes Yes Yes Yes Yes Yes Yes Yes Yes



United States DPA [SEC] Yes Yes Yes Yes Yes Yes Yes Yes Yes

United States NPA [SEC] Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown


│ 225

Table 68. Impact of resolution on other parties (Legal Persons)

Country

Resolution name

Can refusal of one defendant to

accept resolution impact resolution process for other

defendants?

Does a resolution (or resolution proceedings) against LP trigger proceedings against NP who

allegedly committed underlying offence? -- Automatically/ Under certain conditions/ No

Can admission of accused person be used against other NP/LP (LP)?


Unknown Unknown Yes


No No Yes

Australia Plea Agreement Unknown No No

Austria Diversion No Under certain conditions Yes


No Under certain conditions Yes


No Automatically Yes


No Under certain condition Yes

Canada Plea Agreement No Under certain conditions Yes

Canada Remediation Agreement No Under certain conditions Yes


No No No


No No No




Yes Under certain conditions Yes



Estonia Termination for cooperation Yes Under certain conditions Yes

Estonia Alternative proceedings Yes Under certain conditions Yes

226 │

Country

Resolution name



defendants?




Estonia Summary proceedings Yes Under certain conditions Yes

Estonia Expedited procedure Yes Under certain conditions Yes


No Under certain conditions No


No Unknown No

Germany Administrative Resolution Unknown Automatically Unknown

Germany Forfeiture Order Unknown Automatically Unknown

Israel Plea Agreement No No No

Italy Patteggiamento No No No

Japan Agreement Procedure No Under certain conditions Yes

Latvia Prosecutor's Penal Order Yes Under certain conditions Yes

Latvia Plea Agreement Yes Under certain conditions Yes


No No No

Mexico Summary Procedure No Automatically Yes

Netherlands Transaction No Under certain conditions Yes

Netherlands Punitive Order No Under certain conditions Yes

Netherlands Conditional dismissal No Under certain conditions Yes

Norway Optional Penalty Writ No No No


No Automatically No

South Africa Plea Agreement No Under certain conditions No

South Africa Consent Orders No Unknown No

│ 227

Country

Resolution name



defendants?




Spain Conformidad No Unknown Unknown



Switzerland Summary Punishment Order No Under certain conditions Yes


No Under certain conditions Yes, subject to evidential requirements and fairness

United Kingdom Plea Agreement Yes Under certain conditions Yes


Unknown Unknown Yes

United Kingdom Administrative Order Unknown Unknown Unknown


Civil Resolution Unknown Unknown Yes

United States Plea Agreement No Under certain conditions Yes

United States DPA [DOJ] No Under certain conditions Yes

United States NPA [DOJ] No Under certain conditions Yes


Unknown Under certain conditions Yes

United States Civil Resolutions [SEC] No Unknown Yes


No Unknown Yes

United States DPA [SEC] No Under certain conditions Yes

United States NPA [SEC] No Under certain conditions Yes

Source: Answers to Questions 46, 47 and 49

228 │

Table 69. Impact of resolution on other parties (Natural Persons)

Country Resolution name Can refusal of one defendant to accept resolution impact

resolution process for other defendants?

Does a resolution (or resolution proceedings) against NP trigger proceedings against LP who

allegedly committed underlying offence? -- Automatically/ Under certain conditions / No

Can admission of accused person be used against other NP/LP?


Yes No No

Argentina Cooperation Agreement No No Yes

Australia Plea Agreement No No No

Austria Diversion No Under certain conditions Yes






No No Unknown

Canada Alternative Measures No Under certain conditions Yes

Canada Plea Agreement No Under certain conditions Yes


No Unknown No


No Unknown No





Costa Rica Declination with Confiscation Yes Under certain conditions Yes

Costa Rica Suspension of Proceedings Yes Under certain conditions Yes

Costa Rica Shortened proceeding Yes Under certain conditions Yes



│ 229










Estonia Termination for cooperation Yes Under certain conditions Yes

Estonia Alternative proceedings Yes Under certain conditions Yes

Estonia Summary proceedings Yes Under certain conditions Yes

Estonia Expedited procedure Yes Under certain conditions Yes

Finland Plea Agreement Yes Under certain conditions No


Unknown Unknown No

Germany Section 153a No Under certain conditions Yes

Germany Negotiated Agreement Yes Under certain conditions Yes

Germany Penal Order No Under certain conditions Unknown





Israel Plea Agreement No No No

Italy Patteggiamento No Under certain conditions No

Japan Agreement Procedure No Under certain conditions Yes

Latvia Prosecutor's Penal Order No Under certain conditions Yes

Latvia Plea Agreement Yes Under certain conditions Yes


No No No

Mexico Summary Procedure No Automatically Yes

Netherlands Transaction No Under certain conditions Yes

230 │






Netherlands Punitive Order No Under certain conditions Yes

Netherlands Conditional dismissal No Under certain conditions Yes

Norway Optional Penalty Writ No No No



South Africa Plea Agreement No Under certain conditions No

Spain Conformidad Yes Unknown Unknown



Switzerland Summary Punishment Order No Under certain conditions Yes

United Kingdom Plea Agreement Yes No Yes


Unknown Unknown Yes

United States Plea Agreement Yes Under certain conditions Yes

United States DPA [DOJ] Yes Under certain conditions Yes

United States NPA [DOJ] Yes Under certain conditions Yes

United States Civil Resolutions [SEC] No Unknown Yes


No Unknown Yes

United States DPA [SEC] Yes Under certain conditions Yes

United States NPA [SEC] Yes Under certain conditions Yes

Source: Answers to Questions 46, 47 and 48

│ 231

Table 70. Application of double jeopardy/ne bis in idem to domestic resolutions

Country Does a domestic resolution with a NP prevent subsequent

investigation/prosecution based on the same facts? (Yes/No)

Does a domestic resolution with a LP prevent subsequent



Argentina Yes Yes

Australia Yes Yes

Austria Yes Yes

Brazil No No

Canada Yes Yes

Chile No No

Colombia No No

Costa Rica Yes No

Czech Republic Yes Yes

Estonia Yes Yes NP/LP: Estonia reports that only certain resolutions, which require a court decisoin, will give rise to ne bis in idem considerations. These resolutions are (1) Alternative Proceedings; (2) Summary Proceedings; and (3) Expedited procedure. All result in a criminal conviction.

Finland Yes N/A

France Yes Yes

Germany Yes Yes

Hungary Yes N/A NP: Yes, provided that the resolution is equivalent to a court decision or or, even if it results from the prosecutor's decision, it recognises criminal liability and imposes sanctions. (Source: See Answer to Questionnaire - Question 51).

Israel Yes Yes

232 │

Country Does a domestic resolution with a NP prevent subsequent


Does a domestic resolution with a LP prevent subsequent



Italy Yes Yes

Japan Yes Yes “The double jeopardy rule would apply if the NP/LP has been convicted and the judicial decision has become final and biding.” (Answer to Study Questionnaire – follow-up clarification)

Latvia Yes Yes

Mexico Yes Yes

Netherlands Yes Yes

Norway Yes Yes

Slovenia Yes Yes

South Africa Yes Yes

Spain Yes Yes

Switzerland Yes Yes

United Kingdom Yes Yes

United States Unknown Unknown


│ 233

Table 71. Application of double jeopardy/ne bis in idem to foreign resolutions

Country Does a foreign resolution with a NP prevent subsequent investigation/prosecution based on the same facts?

No foreign ne bis in idem / Same extent / Different extent

Does a foreign resolution with a LP prevent subsequent investigation/prosecution based on the same facts?

No foreign ne bis in idem / Same extent / Different extent

Argentina Same extent Same extent Australia Different extent Different extent Austria Different extent Different extent Brazil No foreign ne bis in idem No foreign ne bis in idem Canada No foreign ne bis in idem No foreign ne bis in idem Chile No foreign ne bis in idem No foreign ne bis in idem Colombia No foreign ne bis in idem No foreign ne bis in idem Costa Rica Same extent Same extent Czech Republic Different extent Different extent Estonia Same extent Same extent Finland Unknown Unknown France No foreign ne bis in idem No foreign ne bis in idem Germany No foreign ne bis in idem No foreign ne bis in idem Hungary Different extent Unknown Israel No foreign ne bis in idem No foreign ne bis in idem Italy Different extent Different extent Japan No foreign ne bis in idem No foreign ne bis in idem Latvia Same extent Same extent Mexico Same extent Same extent Netherlands Same extent Same extent Norway Same extent Same extent Slovenia Same extent Same extent South Africa Same extent Same extent Spain Different extent Different extent Switzerland Different extent Different extent United Kingdom Different extent Different extent United States No foreign ne bis in idem No foreign ne bis in idem


234 │

Table 72. Impact of resolutions on decision to grant mutual legal assistance

Country EU / Schengen country

Could impact MLA

Would only impact MLA to EU/Schengen

countries

Would impact MLA to any country


Argentina No No N/A N/A

Australia No Yes No Yes "The Mutual Assistance in Criminal Matters Act 1987 provides discretionary grounds for refusal to provide mutual legal assistance. In particular, paragraphs 8(2)(c) and 8(2)(g) could likely be relevant to a determination of whether to provide assistance in connection with a concluded settlement. These grounds of refusal are replicated in many of Australia's bilateral mutual assistance treaties." Paragraphs 8(2)(c) and (g): "(2) A request by a foreign country for assistance under this Act may be refused if, in the opinion of the Attorney-General: [...] (c) the request relates to the prosecution or punishment of a person in respect of an act or omission where, if it had occurred in Australia at the same time and had constituted an offence against Australian law, the person responsible could no longer be prosecuted by reason of lapse of time or any other reason; or [...] (g) it is appropriate, in all the circumstances of the case, that the assistance requested should not be granted."

Austria Yes Yes Yes No "Member States of the European Union grant mutual legal assistance on basis of the Directive 2014/41/EU regarding the European Investigation Order in criminal matters. According to Article 11 (1) (d) of the Directive 2014/41/EU regarding the European Investigation Order in criminal matters the execution of an European Investigation Order can be refused if the execution of the EIO would be contrary to the principle of ne bis in idem. The principle of ne bis in idem also applies to States Parties to the Schengen Agreement (Article 54). Apart from these legal instruments there are no treaties concluded by Austria stipulating the principle of ne bis in idem with regard to requests for mutual legal assistance in criminal matters."

Brazil No Yes No Yes "For both NPs and LPs, evidence produced by the accused persons can be shared with foreign jurisdictions for use against third parties (for instance, the corrupt official). The evidence is however shared with a speciality clause that refrains it from being used against the persons who entered into settlements, which is in line with Article 37 of the United Nations Convention Against Corruption. This is a consequence of the fact that these persons waived their right not to produce evidence against themselves in exchange for a limitation of their liabilities, which are pre-established in the settlements. Any evidence against the same persons that was not gathered as a consequence of their settlements can be shared without restrictions."

Canada No Unknown No Unknown

Chile No No N/A N/A

Colombia No No N/A N/A

│ 235


Could impact MLA


countries



Costa Rica No Unknown No Unknown

Czech Republic Yes Unknown Unknown Unknown

Estonia Yes Unknown Unknown Unknown

Finland Yes Unknown Unknown Unknown

France Yes Unknown Unknown Unknown

Germany Yes Yes Yes No "Granting mutual legal assistance remains possible even if a final conviction for the same facts has already been handed down in Germany, see e.g. Higher Regional Court of Stuttgart, Decision of 30 July 2015, case no. 1 Ausl 218/15 (taking of statement from suspect). Mutual legal assistance may be refused, however, on a discretionary basis (see section 91e, sub-section (1), no. 2 of the German Act on International Cooperation in Criminal Matters, for the European Investigation Order), which can reflect the type and intrusiveness of the requested assistance (see Bundestagsdrucksache 18/9757, p. 68)."

Hungary Yes Yes Yes No "No obstacle in principle, although the ne bis in idem issue has to be raised if it was a settlement about the admission of guilt."

Israel No No N/A N/A "A concluded settlement does not in and of itself impact or prevent Israel from providing mutual legal assistance."

Italy Yes Yes Yes No

Japan No No N/A N/A “Even though prosecutors reach Agreement with suspects/defendants, we may grant mutual legal assistance in accordance with the Act on International Assistance in Investigation and Other Matters.” (Answer to Study Questionnaire)

Latvia Yes Yes Yes No

Mexico No No No No

Netherlands Yes Unknown Unknown Unknown

Norway Yes Yes No Yes "To the same extent as a it would prevent prosecutions in Norway (if the settlement regards the same facts, same person etc)."

Slovenia Yes Yes Yes No

236 │


Could impact MLA


countries



South Africa No No N/A N/A

Spain Yes Yes Yes No

Switzerland Yes Yes No Yes As the decisions rendered by Punishment Orders and the Simplified Procedure have a status equivalent to court decisions, Switzerland applies the general conditions foreseen for mutual legal assistance after these non-trial resolutions in the same way as they apply to court decisions. Thus, nothing prevents Switzerland from transmitting evidence, party admissions or other materials to foreign counterparts, with two exceptions. First, a MLA request may be denied if the accused resides in Switzerland and proceedings against the accused have already commenced concerning the same offence giving rise to the request for MLA. Switzerland, however, may still provide MLA in such circumstances, if the the foreign proceedings are not directed exclusively against the Swiss resident. (See MLA Act, art. 66). Second, no material provided by MLA can be used for investigation or trial in connection with an offence for which MLA is not admissible without concent of Swiss authorities unless certain special conditions apply. (MLA Act, art. 67).

United Kingdom Yes Yes Yes No "The UK’s ability to provide MLA after settling a foreign bribery enforcement action has come into question. The SFO stated that the settlepment agreements in M.W. Kellogg and Macmillan specifically provided that the SFO could conduct further investigations if it receives requests under MLA treaties. There was no corresponding provision in the plea agreement in BAE Tanzania. The agreement allowed the SFO to further prosecute 'any person' in connection with conduct in the Czech Republic or Hungary. However, it also stated that the SFO ―shall forthwith terminate all its investigations into the BAE Systems Group‖. Since the settlement, the Czech Republic has complained of difficulties with receiving MLA from the UK to investigate BAE. The SFO has since stated that the plea agreement in BAE Tanzania does not preclude MLA. After the on-site visit, the SFO stated that it has provided the requested assistance to the Czech Republic, and that it was also willing and able to assist Tanzanian authorities." Phase 3 para. 174

United States No No N/A N/A "Little to no impact"


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Resolving Foreign Bribery Cases with Non-Trial …...7 Country Resolution name Legal basis...

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