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Structured Settlements for Corruption Offences Towards Global Standards? IBA Anti-Corruption Committee: Structured Criminal Settlements Subcommittee

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Structured Settlements for Corruption Offences Towards Global Standards? IBA Anti-Corruption Committee: Structured Criminal Settlements Subcommittee Structured Settlements for Corruption Offences Towards Global Standards? IBA Anti-Corruption Committee: Structured Criminal Settlements Subcommittee Editors: Abiola Makinwa and Tina Søreide December 2018 Material contained in this report may be freely quoted or reprinted, provided credit is given to the International Bar Association The Anti-Corruption Committee of the International Bar Association Structured Criminal Settlements Subcommittee Editorial Board Editors Committee Officers Abiola Makinwa Abiola Makinwa Tina Søreide Tina Søreide Alison Levitt QC Sub-Editors Andrew Levine Elisabeth Danon Stéphane Bonifassi Elif Erdemoglu Elisabeth Danon Assistants to Editorial Team Lindsay Sykes Lina Schmid David Gurfinkel Harry Ritte Adriana Dantas Alina Carrozzini Wendell Wong Emmanuel Akomaye Elif Erdemoglu Matthew Getz Ceren Aral Desnos Copyright Information ISBN 978-1-5272-3690-5 Not to be reproduced without the permission of the Editors. Copyright of the individual chapters remains with the authors. Contents I. Introduction 6 II. SCSS Biographies 7 III. Mapping the State of Play of Structured Settlements for Corruption offences 14 IV. Structured Settlements for Corruption Offences: Towards Common Standards? 24 V. The SCSS Questionnaire 39 VI. Country Reports 45 Europe 1. ALBANIA 45 2. AUSTRIA 49 3. AZERBAIJAN 55 4. BELARUS 60 5. BELGIUM 66 6. BOSNIA AND HERZEGOVINA 73 7. BULGARIA 78 8. CROATIA 84 9. CZECH REPUBLIC 94 10. DENMARK 102 11. ENGLAND AND WALES 106 12. ESTONIA 119 13. FINLAND 129 14. FRANCE 137 15. GERMANY 155 16. GREECE 163 17. HUNGARY 169 18. IRELAND 178 19. ITALY 185 20. KAZAKHSTAN 190 21. LATVIA 198 22. LITHUANIA 216 23. LUXEMBOURG 227 24. MACEDONIA 237 25. MONTENEGRO 243 26. NETHERLANDS 254 27. NORWAY 264 28. POLAND 269 29. PORTUGAL 284 30. ROMANIA 289 31. RUSSIA 295 32. SERBIA 306 33. SLOVAK REPUBLIC 317 34. SLOVENIA 328 35. SPAIN 335 36. SWEDEN 343 37. SWITZERLAND 349 38. TURKEY 361 39. UKRAINE 368 North America 40. CANADA 378 41. MEXICO 389 42. UNITED STATES 404 Central America 43. COSTA RICA 415 44. EL SALVADOR 423 45. GUATEMALA 428 46. HONDURAS 439 47. NICARAGUA 446 South America 48. ARGENTINA 450 49. BOLIVIA 461 50. BRAZIL 469 51. CHILE 478 52. COLOMBIA 492 53. ECUADOR 503 54. PARAGUAY 508 55. PERU 516 56. URUGUAY 530 Asia 57. INDONESIA 536 58. JAPAN 545 59. MALAYSIA 553 60. SINGAPORE 559 61. SOUTH KOREA 567 62. TAIWAN 571 Africa 63. NIGERIA 580 Middle East 64. EGYPT 591 65. ISRAEL 596 66. UNITED ARAB EMIRATES 607 Index of Country Reporters 611 I. Introduction In 2016, the Structured Criminal Settlements Subcommittee (SCSS) of the IBA Anti-Corruption Committee commenced a two-year project entitled, ‘Towards Global Standards in Structured Settlements for Corruption Offences.’ The objective of this project was to map the evolving settlement practices for corruption cases of countries across the globe. The project hopes to add to the growing discussion on whether, and to what extent, there is a need for global standards. Reports based on a distributed questionnaire have been submitted by country researchers from 66 countries from Africa, the Far East, the Middle East, North, Central and South America, and Western and Eastern Europe. While we have not been able to achieve full global coverage, these reports provide an up-to-date and comparative overview of salient issues relating to structured settlements for corruption offences. We would like to thank most sincerely our global community of country researchers who contributed their valuable time to map the state-of-play of structured settlements in their jurisdictions. We are deeply grateful to our regional officers, Elisabeth Danon, Wendell Wong, David Gurfinkel, Adriana Dantas, Lindsay Sykes, Ceres Aral DesNos and Emmanuel Akomaye, as well as the officers of our key countries, Alison Levitt QC, Andrew Levine and Stéphane Bonifassi, for their indefatigable spirit over the last 24 months. Our sincere thanks also go to our project researchers Elif Kiesow Cortez and Matthew Getz for their contributions in shaping the questionnaire used in the project. We thank Jessica Berrada for her administrative support, and our research assistants, Lina Schmid, Kasper Vagle, Harry Ritte and Alina Carrozzini, who have done an incredible job of marshalling the mountain of documentation. Finally, our very special thanks to Robert Wlyd, Pascale Dubois, Bruno Cova, Leah Ambler and other members of the IBA Anti-Corruption Committee for this opportunity and much appreciated support. Dr Abiola Makinwa (Chair) Prof Tina Søreide (Vice Chair) Ms Alison Levitt QC (Vice Chair) 6 Structured Settlements for Corruption Offences Towards Global Standards? II. SCSS biographies Dr Abiola Makinwa (Chair) Abiola Makinwa (née Falase) is a Senior Lecturer in Commercial Law with a special focus on Anti- Corruption Law and Policy at The Hague University of Applied Sciences in The Netherlands. She is a professional member of the International Compliance Association and Chair of the Structured Criminal Settlements subcommittee of the IBA Anti-Corruption Committee from (2016 – 2018). Dr Makinwa holds a PhD from Erasmus University Rotterdam. Her teaching and research focuses on the role of private actors and the importance of public/private dialogue in the fight against corruption. Her PhD thesis, Private Remedies for Corruption: Towards an International Framework (Eleven International Publishing, 2013) focuses on the role of private actors and strategies in the fight against corruption. In 2010, Dr Makinwa’s essay, Future Thinking through the Prism of International Corruption, won The Hague Institute for the Internationalization of Law (HiiL) Future Thinking Essay award. In 2013, Dr Makinwa was awarded an EU OLAF Hercule II Grant to research European Perspectives on Negotiated Settlements for Corruption Offences. This resulted in a book, A Makinwa (Eds) Negotiated Settlements for Corruption Offences: A European Perspective (Eleven, 2015). In 2014, Dr Makinwa was appointed as the Dutch National Reporter together with Professor X Kramer to report on ‘Civil Law Consequences of Corruption in International Commercial Contracts’ for the 19th Congress of the International Academy of Comparative Law (Vienna, 2014). More recently, in April 2018, Dr Makinwa won a Comenius Senior Fellow Grant to develop an Anti-Corruption Integrity Digital Training Module from the Netherlands Initiative for Educational Research. From May 2018, she has also become a Senior Fellow of the Comenius Network of the Royal Dutch Academy of Arts and Sciences (KNAW). Email: [email protected], Telephone: +31 70 445 7149 Prof Tina Søreide (Vice Chair) Tina Søreide is Professor of Law and Economics at the Norwegian School of Economics (NHH), at the Department of Accounting, Auditing and Law. At NHH she is part of the Norwegian Centre of Taxation (NoCeT), the Economics, Ethics and Law research group, and she teaches a master course on the law and economics of corruption. Prof Søreide has published broadly on corruption, governance, markets and development, recently with an emphasis on law enforcement. Her latest book is Corruption and Criminal Justice: Bridging Legal and Economic Perspectives, (Elgar, 2016), and in 2011 she co-edited with Susan Rose-Ackerman the International Handbook on the Economics of Corruption Vol 2. Among her recent journal articles is, An Economic Analysis of Debarment, published spring 2017 in the International Review of Law and Economics, co-authored by Emmanuelle Auriol. Prof Søreide has been engaged in policy work for the Norwegian Government and internationally, including for the Organisation for Economic Co-operation and Development (OECD), the EU, the World Bank, development agencies and governments, and is a member of the High Level Advisory Group on Anticorruption and Integrity (HLAG) to the Secretary General of the OECD. Her former employers include the University of Bergen (UiB), the Chr Michelsen Institute (CMI) and the World Bank. Email: Tina.Sø[email protected]. Telephone: +47 55959522 Structured Settlements for Corruption Offences Towards Global Standards? 7 Ms Alison Levitt QC (Vice Chair, Country Officer – UK) Ms Levitt is a Partner and Head of the Business Crime group. She specialises in criminal, regulatory and related matters. Ms Levitt was called to the Bar by Inner Temple in 1988 and was appointed Queen’s Counsel in 2008. After twenty years in private practice at leading London defence chambers, she was head-hunted to become the Principal Legal Advisor to the Director of Public Prosecutions. There she advised on some of the most significant cases of the time, as well as appearing as counsel in the Court of Appeal. She is an expert in private prosecutions and immunities from prosecution. Throughout her career as a barrister Ms Levitt has appeared in key cases in the Court of Appeal and has written many reports, including the Crown Prosecution Service’s highly praised in-depth review of their previous conduct of allegations against the entertainer Jimmy Savile. As an advocate, Ms Levitt has conducted lengthy and complex trials and appeals involving bank instrument fraud, proceedings against company directors and fraud on a massive scale connected with international metal trading. She is familiar with the transactional aspects of many different types of fraudulent and corrupt activity, and has been praised in the Court of Appeal for her knowledge of the law and capacity to master the most complex detail. Ms Levitt has a profound understanding of the UK governmental and political system, and international matters. She has been a Recorder of the Crown Court since 2006 and is a Master of the Bench of the Inner Temple. She is a former Chair of the Young Bar and has also been Secretary of the Criminal Bar Association of England and Wales. Ms Levitt is a Certified Fraud Examiner (CFE). Email: [email protected]. Telephone: +44 20 3321 7450 Mr Andrew Levine (Country Officer – United States) Andrew Levine is a litigation partner at Debevoise & Plimpton LLP and focuses his practice on white collar and regulatory defence, internal investigations and a broad range of complex commercial litigation.
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