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Concurrent Jurisdiction and Parallel Investigations and Criminal Proceedings in Cases of Foreign Bribery

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Concurrent Jurisdiction and Parallel Investigations and Criminal Proceedings in Cases of Foreign Bribery Department of Law Spring Term 2016 Master’s Thesis in Anti-Corruption 30 ECTS Concurrent jurisdiction and parallel investigations and criminal proceedings in cases of foreign bribery With focus on global settlement agreements Author: Sara Olofsson Supervisor: Doctoral candidate Victoria Bui 1 Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organised crime, terrorism and other threats to human security to flourish. This evil phenomenon is found in all countries — big and small, rich and poor — but it is in the developing world that its effects are most destructive. Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a government's ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development. – Kofi Annan, the UN Secretary General from 1997 to 2006 2 List of abbreviations Anti-Bribery Convention OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions BrB Swedish Penal Code (SFS 1962:700) Code of Business Swedish Code of Gifts, Rewards and other Benefits in Conduct Business DOJ Department of Justice DPA Deferred prosecution agreement ECHR European Convention on Human Rights ECJ European Court of Justice FCPA Foreign Corrupt Practice Act 2010 FCPA Guidance A Resource Guide to the U.S. Foreign Corrupt Practice Act NPA Non-prosecution agreement OFAC Office of Foreign Assets Control RB Swedish Procedural Code (SFS 1942:740) RF Swedish Instrument of Government (SFS 1974:152) SEC Securities and Exchange Commission SFO Serious Fraud Office Recommendation OECD Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Working Group OECD Working Group on Bribery in International Business Transaction UNCAC United Nations Convention against Corruption Sentencing Guidelines US Federal Sentencing Guidelines Manual 3 1 INTRODUCTION .......................................................................................................... 6 1.1 THE STORY OF TELIASONERA ...................................................................................................... 6 1.2 THE LONG ARM OF UK AND US AUTHORITIES ......................................................................... 7 1.3 PURPOSE AND DELIMITATION ...................................................................................................... 9 1.4 METHOD AND MATERIAL ............................................................................................................. 10 1.5 DISPOSITION ................................................................................................................................... 11 2 TELIASONERA .............................................................................................................. 13 2.1 ABOUT TELIASONERA .................................................................................................................. 13 2.2 TELIASONERA’S AFFAIRS IN UZBEKISTAN ................................................................................ 13 2.3 THE SWEDISH ANTI-BRIBERY LEGISLATION APPLIED TO THE TELIASONERA CASE, BEFORE AND AFTER 2012 ........................................................................................................................ 14 3 THE SWEDISH ANTI-BRIBERY LEGISLATION ..................................................... 16 3.1 THE CRIMINAL OFFENCES ............................................................................................................ 16 3.1.1 Trading in influence and negligent financing of bribery .................................................................. 16 3.1.2 The Swedish Code of Gifts, Rewards and other Benefits in Business ............................................. 17 4 BRIBERY ACT 2010 ........................................................................................................ 18 4.1 THE CRIMINAL OFFENCES ............................................................................................................ 18 4.2 EXTRA TERRITORIAL APPLICATION ........................................................................................... 18 5 FOREIGN CORRUPT PRACTICES ACT 1977 ............................................................ 20 5.1 THE CRIMINAL OFFENCES ............................................................................................................ 20 5.2 EXTRA TERRITORIAL APPLICATION ........................................................................................... 20 5.3 IN SUMMARY .................................................................................................................................... 22 6 CONCURRENT JURISDICTION AND LIMITATIONS ........................................... 22 6.1 INTRODUCTION .............................................................................................................................. 22 6.2 INTERNATIONAL COMITY ............................................................................................................ 23 6.3 THE UK AND THE US COORDINATION ..................................................................................... 23 6.4 THE OECD ANTI-BRIBERY CONVENTION .............................................................................. 25 6.4.1 The members of the OECD Anti-Bribery convention .................................................................. 25 6.4.2 The preamble and articles of the OECD Anti-Bribery Convention .............................................. 25 6.4.3 The monitoring system of the OECD Anti-Bribery Convention ................................................... 27 6.4.4 The OECD Working Group and Sweden .................................................................................. 27 6.4.5 The OECD Working Group and the US .................................................................................. 29 6.5 THE UNITED NATIONS CONVENTION AGAINST CORRUPTION (UNCAC) ........................ 30 6.5.1 The preamble and articles of the UNCAC .................................................................................. 30 6.6 IN SUMMARY .................................................................................................................................... 31 4 7 GLOBAL SETTLEMENT AGREEMENTS ................................................................. 33 7.1 INTRODUCTION .............................................................................................................................. 33 7.2 AGREEMENTS BETWEEN PROSECUTOR AND DEFENDANT ................................................... 34 7.2.1 The UK and the US approach to negotiated settlement and plea bargain ...................................... 34 7.2.2 The UK and the US approach to settlement agreements in criminal proceedings ............................ 34 7.2.3 Current Swedish law and negotiated settlements/plea bargain ....................................................... 38 7.2.4 Current Swedish law and DPAs/NPAs .................................................................................... 40 7.2.5 Arguments in favour of a prosecution system based on agreements ................................................. 41 7.2.6 Arguments against a prosecution system based on agreements ........................................................ 41 7.3 IN SUMMARY .................................................................................................................................... 42 7.4 THE SWEDISH CRIMINAL JUSTICE SYSTEM ............................................................................... 43 7.4.1 In what way should Swedish prosecutors and Courts approach a global settlement agreement ......... 43 7.4.2 Basic principles and frame for discussion ...................................................................................... 43 7.4.3 International ne bis in idem ......................................................................................................... 44 7.4.4 The role of Swedish Prosecutors .................................................................................................... 51 7.4.4.1 Principle of legality and opportunity ............................................................................. 51 7.4.4.2 Mandatory prosecution ................................................................................................... 52 7.4.4.1 Special consideration of charges .................................................................................... 53 7.4.4.2 Waiver of prosecution ..................................................................................................... 53 7.4.5 Ch 2 s 6 BrB ............................................................................................................................. 56 7.4.6 Ch 36 s 10 BrB ......................................................................................................................... 57 7.5 IN SUMMARY .................................................................................................................................... 62 8 CASE STUDY .................................................................................................................
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