The approach includes the possibility of negotiated settlement in “appropriate cases” rather than criminal prosecution.
There was a time when people said there was no place for negotiated settlement (mediation) in cases of corruption. I disagreed. I am glad to see a change.
There is a holistic approach to the guidance which seeks to establish a number of things as precursors to civil settlement and they include
- is the Board of the corporate genuinely committed to resolving the issue and moving to a better corporate culture?
- will the corporate want us, where possible, to work with regulators and criminal enforcement authorities, both in the UK and abroad, in order to reach a global settlement?
- is the corporate prepared to work with us on the scope and handling of any additional investigation we consider to be necessary?
- at the end of the investigation (and assuming acknowledgement of a problem) will the corporate be prepared to discuss resolution of the issue on the basis, for example, of restitution through civil recovery, a programme of training and culture change, appropriate action where necessary against individuals and at least in some cases external monitoring in a proportionate manner?
- does the corporate understand that any resolution must satisfy the public interest and must be transparent? This will almost invariably involve a public statement although the terms of this will be discussed and agreed by the corporate and us.
It raises some interesting questions but on first reading, it seems to be progress.
Thanks to CMS Cameron McKenna – Law-Now for the alert