Alternatives to prosecution in an age of global enforcement
When pursuing alternatives to prosecution, multinationals need global strategies to navigate potential enforcement actions from multiple national authorities.
When an investigation finds wrongdoing, the options companies have to avoid full-blown prosecution depend in part on which country is threatening it. But for multinationals, the options may also depend on whether multiple countries could prosecute.
In the UK or the United States, companies may have two or three possible routes: civil settlements, non‑prosecution agreements (only available in the US) and deferred prosecution agreements (DPAs). Civil settlements and DPAs work differently in the UK and US.
France and the Czech Republic have their own versions of DPAs. Switzerland and Belgium have a range of other settlement options. In Germany, there is no concept of corporate criminal liability, but German companies may face administrative fines if their directors, officers or managerial staff are accused of wrongdoing. In Poland, there is no alternative to prosecution for economic crimes.
Multinationals must take care to avoid resolving a matter in one jurisdiction in a way that could leave them exposed or even open the door to further charges in another jurisdiction. To do this, companies should develop global strategies before approaching any authority. Since there is no general protection against double jeopardy internationally, avoiding punishment by multiple national authorities may come down to negotiation and prosecutorial discretion.
To start, multinationals should determine the likely scope of the alleged wrongdoing, the areas of the business that are potentially exposed, the jurisdictions that may be affected and the law enforcement agencies that could ultimately have an interest in the case. They should also determine where any relevant data are located so they can identify applicable requirements for preserving data and understand whether it is legal to share data across national borders. Companies should also consider whether they need to suspend operations and/or employees to avoid additional violations pending resolution of the investigation.
Law enforcement agencies will expect companies to have considered all of these steps before making any meaningful attempt to engage with them.