Unintended Consequences of Disclosures

Disclosures may have unintended repercussions (Funk and Boutros Reference Markus, Boutros, Markus Funk and Andrew2019). The lack of cross-border coordination and the risk of carbon copy proceedings do not incentivize but deter MNCs from self-reporting instances of bribery. One occurrence of bribery will probably trigger parallel or multiple enforcement actions and duplicative penalties (Holtmeier Reference Holtmeier2015:498). Entering into a settlement with one jurisdiction, an MNC is likely to be subject to another investigation based on the agreement’s admissions (Colangelo Reference Colangelo2009). This would probably give rise to sequential liability to foreign sovereigns. After all, a prior conviction would not bar subsequent civil proceedings. ^{Footnote 3} Furthermore, duplicative prosecutions will have a chilling effect that causes over-deterrence, compromising the company’s self-disclosure and cooperation. The approach will chill firms’ entrepreneurship and adversely affect companies’ risk-taking and global competitiveness (Anonymous 1979). Too severe penalties will even inhibit companies from cross-listing in foreign stock exchanges. In this vein, successive prosecutions do not lead to expected deterrence but less self-disclosure.

Cost–benefit analysis

Given the ramifications, MNCs need to attenuate all the above risks meticulously (Boutros and Funk Reference Boutros and Markus Funk2012). It is imperative to perform a rigorous cost–benefit analysis and examine whether international double jeopardy is a viable tool to solve the problem (Richman Reference Richman1996). Careful consideration must be given to the possible enforcement by potential foreign authorities with extraterritorial jurisdictional reach (Funk and Boutros Reference Markus, Boutros, Markus Funk and Andrew2019). They should evaluate whether to simultaneously disclose other potential violations apart from the Foreign Corrupt Practices Act (FCPA) (Fisher Reference Fisher1961). Various costs are to be considered, such as reputational damage, possible settlement amount and compliance cost. Assume that an exclusive penalty by one jurisdiction is a basis of marginal cost; above it is the negative cost, and below it is the marginal benefit (Hessick and Hessick Reference Hessick and Andrew Hessick2011). Weighing the risks and benefits, a company would not voluntarily report the bribery if the negative cost considerably outweighs the benefit. As such, an affirmative policy is key to promoting equity and fairness for MNCs, where they face overlapping investigations by those authorities that do not recognize the doctrine of double jeopardy. Enforcement agencies need to assess collateral consequences and avoid defendants’ collapses due to prosecutions (Paulsen Reference Paulsen2007). Otherwise, the interests of some innocent stakeholders that rely upon the companies would be compromised.

Fifth Amendment to the US Constitution

Enshrined in the Double Jeopardy Clause of the US Constitution, the principle states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”. ^{Footnote 5} The US Supreme Court Justice Black once explained in Green v. United States the rationale that:

The Court held that this clause does not preclude the USA from prosecuting a defendant previously penalized by a foreign sovereign, but only proscribes multiple prosecutions by the same sovereign. ^{Footnote 7} The US position seems to contradict the Organisation for Economic Cooperation and Development (OECD) Anti-Bribery Convention (OECD Convention), which provides that member states must consult to determine the most appropriate jurisdiction for prosecution in a case where more than one country is competent to prosecute. ^{Footnote 8}

Piling-On in Duplicative/Multiple Cross-Border Actions

The FCPA is so far the most effective law to combat cross-border corporate bribery (Brewster Reference Brewster2017). The USA does not normally coordinate with foreign sovereigns in assessing prosecutions involving the same act (Michigan Law Review 1982). Protection against double jeopardy applies to corporations and individuals, although the rationales for its application are weaker in the former context (Khanna Reference Khanna1996:1517). As the most robust agencies pursuing transnational anti-bribery, the US authorities have been aggressively enforcing the FCPA against foreign MNCs for bribes that may have been committed overseas.

In 2018, the Department of Justice issued a Policy on Coordination of Corporate Resolution Penalties, the No-Piling-On Policy. The Policy aims to eliminate “unfair duplicative penalties” on foreign bribery by deterring multiple authorities from “piling on” penalties (Levmore and Porat Reference Levmore and Porat2011). It seeks to facilitate coordination of enforcements between foreign sovereigns and the USA to mitigate carbon copy penalties for the same corporate crime. However, the Policy leaves the DoJ with discretion; whether imposing duplicative penalties serves “the interests of justice” remains a decisive element when the agency evaluates a number of factors (Garrett Reference Garrett2020). The US federal prosecutors would consider the potential impact of foreign prosecutions when exercising their discretion. The Policy allows the DoJ to credit the firm for any penalties previously imposed by a foreign sovereign (Tokar Reference Tokar2019). Notably, the agency retains wide latitude to determine whether a foreign penalty is too lenient. However, it remains unclear how the DoJ will assess the above factors due largely to the lack of guidance and objective criteria. A decision will be made on a case-by-case basis. It is noteworthy that the DoJ’s No-Piling-on Policy is consistent with the OECD Convention. Signatories with competent jurisdiction are required to decide the most suitable country to initiate the prosecution through consulting with each other. ^{Footnote 9} Furthermore, it has been incorporated into the FCPA Resource Guide of 2020 (U.S. Department of Justice and the Securities and Exchange Commission 2020:71).

Gamble v. United States, 139 S. Ct. 1960 (2019)

The doctrine of dual sovereignty allows two sovereigns to prosecute a company for the same act if it breaches the anti-bribery laws of both countries (Adler Reference Adler2015). There will be no constitutional violation, provided the sovereigns are different. The US Supreme Court held in Gamble that:

The Gamble decision reaffirmed the long-standing doctrine. A crime under one sovereign’s law is not “the same offence” as a crime under another sovereign’s laws (Principato Reference Principato2014). According to the Supreme Court’s reasoning, the text of the Double Jeopardy Clause does not bar prosecuting the same conduct but prohibits a defendant from being put in jeopardy twice for the same offence. ^{Footnote 11} As the Court stated: “a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate”. ^{Footnote 12} As such, the double jeopardy law does not prohibit multiple sovereigns from initiating duplicative prosecutions of the same conduct. It applies only when two offences are “the same”, but the standard for determining the sameness of offences is vague (Anonymous 1979:1344).

The Supreme Court’s conceptual reaffirmation paves the way for the USA to prosecute conduct that has been tried in a foreign court (King Reference King1995). Foreign judgments are not treated as barring trials in US law. When formulating its global defence strategies, an MNC facing multijurisdictional criminal enforcement should consider the implications of Gamble. Despite the DoJ’s Policy against “piling on”, its application is at the authority’s discretion, which neither creates a new private right of action nor becomes enforceable in Court (U.S. Department of Justice 2018b). The Court in Gamble has foreclosed potential legal challenges when US enforcement agencies seek to start duplicative prosecutions (New, Campbell, and Pollawit Reference New, Campbell and Pollawit2019). In this vein, the Supreme Court has given the green light to authorities “piling on” in enforcement against transnational corporate bribery. This substantially shrinks the latter’s room to exercise their No-Piling-on Policy discretion.

Total, S.A.

The French oil company Total, S.A. was prosecuted for alleged bribery in Iran (U.S. Department of Justice 2013). Its FCPA settlements preceded the French enforcement action. In May 2013, Total, S.A. reached a DPA with the USA and agreed to pay $398 million. ^{Footnote 14} The company has thus referred to the doctrine of double jeopardy as a defence in the French proceedings. In 2015, the Paris Criminal Court ruled that the double jeopardy principle applied to a US agreement, resulting in a US court conviction. ^{Footnote 15} The Court reasoned that the DPA had the essential qualities of a judgment, thus qualifying the firm for ne bis in idem protection. However, a French Court of Appeals found Total, S.A. guilty of paying bribes to foreign public officials in February 2016 after new criminal offences were charged in 2014. Total, S.A. challenged the decision of the Court of Appeals of Paris before the French Cour de Cassation (France’s Supreme Court). The Supreme Court held that the ICCPR only addresses the acts taking place in a single sovereign (Davis Reference Davis2016). This amounts to res judicata, recognized by French Courts and the DPA bars further prosecution. The judgment represents a milestone since it not only applies the double jeopardy or ne bis in idem principle to a DPA but also recognizes a res judicata effect regarding the decision of a foreign authority. Notably, the Court held that it was bound by the ICCPR about the protection issue against multiple prosecutions. ^{Footnote 16} It is the first time a European court has relied on the ICCPR to reject an otherwise procedurally appropriate prosecution based on a prior US prosecution (van Kempen and Bemelmans Reference Kempen, Hein and Bemelmans2018). Furthermore, the OECD has urged member states to bolster cross-border enforcement of corporate bribery, which may have contributed to the French courts’ judgment in Total, S.A. (Van Alstine Reference Van Alstine2012).

Vitol: Same Act vis-à-vis Same Offence

In another case similar to Total, S.A., Swiss oil trader Vitol argued that it could not be tried again for the same offence in France, invoking the double jeopardy principle enshrined in the ICCPR. ^{Footnote 17} The first-instance Court had agreed with this premise, determining that the plea agreement would block French courts from hearing the case. It held that the ne bis in idem provision protected against a French prosecution, given that both France and the USA are signatories to the ICCPR (Colangelo Reference Colangelo2009). The Paris Criminal Court explicitly applied the ne bis in idem principle and dismissed all charges against the firm on 8 July 2013 (Neagu Reference Neagu2012). The Paris Court of Appeals overturned this dismissal and charged Vitol under French law (Davis Reference Davis2016). Plausibly, the French Code of Criminal Procedure provides that:

It was further reasoned that the ICCPR shields a firm from being multiply prosecuted for the same “offence”, but Vitol’s guilty plea in New York was not for the same “act” (Davis Reference Davis2018). It is inferred that the appellate Court would be barred from prosecuting Vitol for the same offence (Davis Reference Davis2018). This is consistent with the core “same-elements” protection afforded under the UK law against successive prosecution (Griffin Reference Griffin2002). In practice, an enforcement authority can get away with the “same act” test by distinguishing separate proceedings and showing non-identical offences (Rastan Reference Rastan2017). The Cour de Cassation ruled that Article 14(7) under the ICCPR was inapplicable to convictions of foreign sovereigns. It found that despite a 2007 plea agreement and subsequent $17 million fine by a New York court, Vitol could still be pursued in France on charges of foreign bribery stemming from its attempt to secure oil from Iraq under the United Nations’ Oil-for-Food programme which operated from 1996 to 2003. It explained that double jeopardy protection is an unviable defence to deter the authority from prosecuting the firm that had reached a plea agreement for convictions in a foreign sovereign (Davis Reference Davis2016).

This judgment paves the way for companies’ foreign bribery convictions in France. The cases highlight the risks that multinational jurisdictional enforcements generate for MNCs. The judgments will make an impact on MNCs’ defensive strategies that may involve French jurisdiction (Bulovsky Reference Bulovsky2019). The protection offered by one country’s law may afford no protection in another sovereign (Colangelo Reference Colangelo2009), because French criminal procedure does not recognize DPAs as a tool to deal with criminal investigations (Davis and Kirry Reference Davis and Kirry2015). Asymmetrically, the USA does not recognize that the ICCPR will preclude its prosecution because of a French criminal judgment, which has been systematically interpreted as a “non-self-executing treaty” (Mulligan Reference Mulligan2018). The two judgments demonstrate the French Supreme Court’s unwillingness to surrender its jurisdiction based on convictions rendered abroad with parts of the facts occurring in France (Bonifassi Reference Bonifassi2018). The French courts’ interpretations of double jeopardy protection were conducive to eliminating the asymmetry, which may encourage MNCs to forum shop foreign enforcement authorities to preclude French prosecutions (Davis Reference Davis2018). Some inquiries arise as to how the involved prosecutors can fill a gap to facilitate predictability and efficiency in multijurisdictional enforcement (Bulovsky Reference Bulovsky2019).

An optimum resolution would be for the US and French prosecutors to conduct joint investigations and share the fines.

Recognition of Foreign Courts’ Judgments

The case marks a landmark FCPA enforcement, whose sanction has been split with a foreign sovereign state (U.S. Department of the Treasury 2018). The DoJ acknowledged a resolution between the PNF and Société Générale. The agency has credited the firm $292.8 million, given the parallel resolution (U.S. Department of Justice 2018c). Furthermore, the PNF was responsible for assessing the quality and the effectiveness of Société Générale’s anticorruption measures for two years (Terret and Père Reference Terret and Père2018). The DoJ has taken proactive steps and given credit to the assessment by waiving the appointment of independent monitors (Knapp Reference Knapp2016). It is also noteworthy that the coordination makes more sense between the two unique legal systems of common law and civil law (Stuckenberg Reference Stuckenberg, Darryl, Iontcheva Turner and Weisser2019:§21). The exemption saved considerably on Société Générale’s compliance costs due to the waiving of the DoJ’s regular appointment of monitors. FCPA enforcement actions represent the first case in which the USA has credited the fines paid to a foreign sovereign for the same conduct. The case also marks the USA’s first coordinated resolution with another country in a transnational corporate crime (OECD 2019:17–42).

The innovative decision clarifies that cross-border corporate bribery can be efficiently addressed through coordinated law enforcement actions (U.S. Department of Justice 2018c). The DoJ’s recognition can be justified under comity, which is conceptualized as a doctrine of deference showing respect for the judicial decisions of a foreign sovereign. ^{Footnote 19} The coordinated approach is also in line with the OEDC Convention on Combating Bribery. ^{Footnote 20} For the sake of cost-effective responses to bribery, this flexible approach saves precious judiciary resources during cross-border investigations and in overseeing the implementation of DPAs (Boutros and Funk Reference Boutros and Markus Funk2012).

Will the Milestone Decision Reshape the Double Jeopardy Landscape?

In December 2017, France promulgated the Loi Sapin II, which permits French prosecutors to negotiate the equivalent of a DPA for the first time. ^{Footnote 21} It was designed to make France a major player in prosecuting foreign bribery (Arlen and Buell Reference Arlen and Buell2020). Sapin II requires that a court review DPAs during a public hearing, which mirrors the UK’s approach. ^{Footnote 22} In addition, the expanded jurisdictional reach enhances France’s position in global combat against bribery and enables French authorities to prosecute its domestic firms for their overseas offences. ^{Footnote 23} The current US principle on double jeopardy, in general, inhibits effective collaboration with other foreign enforcement authorities. In Société Générale, the USA has adjusted its settlement requirements to credit sanctions imposed by French enforcers (Johnson, Freifeld, and Landauro Reference Johnson, Freifeld and Landauro2018). It shows the potential for coordinated settlements and the advantages for both states and companies (OECD 2019). The case marks a significant FCPA resolution since the changes to the FCPA Corporate Enforcement Policy incentivize companies’ self-disclosures and investigative cooperation. ^{Footnote 24} In particular, the coordinated settlement is beneficial for MNCs facing multijurisdictional investigations (Davis Reference Davis2016). Nevertheless, joint settlements have not yet become a uniform approach to resolving transnational corporate bribery cases (Garrett Reference Garrett2011). As part of a global settlement, MNCs may petition US enforcement agencies for case-by-case credit for any penalties paid to local authorities (Boutros and Funk Reference Boutros and Markus Funk2012). They should not take it for granted that all involved authorities agree to the settlement because priorities and objectives vary from jurisdiction to jurisdiction (Stahn Reference Stahn and Stahn2018). These ad hoc decisions should not be overinterpreted since the DoJ and SEC still aggressively claim jurisdiction even if principal violations have occurred abroad. Whether foreign proceedings can have a preclusive effect on a US court depends upon whether they are compatible with US conceptions of due process of law (Funk Reference Funk2018). Otherwise, they would be unviable and unlikely to result in a joint settlement across jurisdictions. In this vein, it is similarly significant that the US enforcement agencies should articulate circumstances where they will defer to foreign sovereign prosecution (Brewster and Dryden Reference Brewster and Dryden2018).

The Implementation of Anti-Piling-On Policy Based on Diplomatic Relations

The efficacy in prosecuting corporate crime for FCPA violations depends on US diplomatic relations and the ability to get access to foreign firms (Colangelo Reference Colangelo2019). The No-Piling-On Policy advocates for the DoJ to defer to foreign authorities in some like-minded countries and can coordinate parallel proceedings. In contrast, poor diplomatic relations will limit information sharing and further compromise the DoJ’s ability for efficient coordination, which could lead to “pile-on” prosecutions (Bulovsky Reference Bulovsky2019). The Anti-Piling-On Policy could apply only to countries with which the USA has favourable relationships (Karp Reference Karp2018). The company’s fate in question will depend upon whether diplomatic relations could enable foreign prosecutors to make it to the US enforcement agencies. This diplomatic relations-based approach may result in counterproductive reactions. It makes it difficult for a firm to predict whether the USA applies the Policy, particularly in uncertain relations between the USA and a relevant foreign sovereign. Despite the positive signal, the USA must address the challenges for more efficient cooperation with foreign regulators and law enforcement (Colangelo Reference Colangelo2009).

Asymmetry of Divergences in the International Double Jeopardy Doctrine

As discussed above, the USA is not bound by resolutions in a foreign country but can initiate FCPA prosecutions against a foreign firm convicted for the same underlying conduct (Colangelo Reference Colangelo2019). This inevitably creates an asymmetry concerning jurisdictions constrained by a double jeopardy bar, which forbids them from prosecuting a firm whose bribery has been resolved in the USA (Levmore and Porat Reference Levmore and Porat2011). From an equitable perspective, it is imperative to address which country should take the lead and how the involved states should coordinate in cases where they all can claim jurisdictions (Brewster Reference Brewster2017). Given their current dominant position in global anti-bribery, the US enforcement authorities may evaluate whether prosecutions in a foreign sovereign were adequate. Suppose a prior proceeding follows laws compatible with US laws and sentences. In that case, the prosecution may vindicate US interests and justify not applying the dual sovereignty doctrine. A challenge is how the US enforcement agencies evaluate the adequacy of non-US prosecutions and penalties and the circumstances where they should make a deference. In particular, China is short of the capacity to proceed with complex transnational anti-bribery. Although recognizing the principle of double jeopardy could considerably make an impact on a country’s capacity to combat bribery, the institutional void and deficiencies manifest the challenges facing China’s law enforcement agencies.

Coordination of Jurisdiction Under UNCAC and the OECD Convention

Not only does coordination help avoid duplicative enforcement, but it also leads to more consistent resolutions (Boutros and Funk Reference Boutros and Markus Funk2012). UNCAC provides that:

This applies to proceeds of corruption from offences covered in Article 16 on foreign bribery (Ivory Reference Ivory and Ivory2014). In principle, UNCAC could allow a country like France to seek split compensation in a US court from an American company that has committed bribery in France (Funk and Boutros Reference Markus, Boutros, Markus Funk and Andrew2019). Alternatively, UNCAC could require the US enforcement agencies to recognize France as the legitimate owner of fines paid to the USA resulting from an FCPA violation. ^{Footnote 31} The OECD Convention requires signatory nations to criminalize bribery of foreign public officials in their domestic law. ^{Footnote 32} Each signatory country must “take measures necessary to establish its jurisdiction over the bribery when the offense is committed”. ^{Footnote 33} Little progress has been made to enhance cooperation between signatories in order to settle issues relating to concurrent proceedings (Boutros and Funk Reference Boutros and Markus Funk2012). The nature of transnational bribery renders it common for multiple authorities to claim jurisdiction over the same underlying bribery (Ashe Reference Ashe2005).

Competing jurisdictional claims can arise as to which country has primacy to prosecute (Brown Reference Brown1998). The OECD Convention explicitly advocates that only one country prosecute a firm for the same underlying bribery. ^{Footnote 34} To attenuate the likelihood of parallel or multiple enforcement (Davis Reference Davis2016), the OECD requires signatories to consult to identify the most appropriate state for prosecution, which provides that:

Respect for the spirit of the above provision suggests in favour of deference (Colangelo Reference Colangelo2009). Signatories need to reach a consensus that alleviates adverse consequences due to duplicative proceedings (OECD 2019). It, however, does not require member states to surrender their sovereign power while determining whether to prosecute particular instances of corporate crime (Rastan Reference Rastan2017). The Convention advocates that states consult in identifying the primary jurisdictional claim. ^{Footnote 36} However, there is no international rule governing how to determine primacy (OECD 2017).

The Policy underlying the OECD and UNCAC articles is that multiple actions should be avoided. In practice, a sensible remedy only arises if either state recognizes the principle of double jeopardy or if credit can be given for leniency in other states. The European Union takes a similar stance. A European version of the ne bis in idem principle has come into being via conventions, treaties and court decisions. The Convention Implementing the Schengen Agreement provides that: “[a] person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another … for the same acts”. ^{Footnote 37} Similarly, the Charter of Fundamental Rights of the European Union also provides: “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union.”Footnote ³⁸

Companies are reasonably assured to be shielded from further prosecution in other member states if they are prosecuted in one European jurisdiction (Van Den Wyngaert and Stessens 1999).

Toothless Soft Law

The non-legally binding, soft law would ideally result in only one signatory country actually prosecuting (Brewster Reference Brewster2017). This was well explained in United States v. Jeong, where the Court held that:

It further reasoned: “Double jeopardy thus does not attach when separate sovereigns prosecute the same offense, as here.” ^{Footnote 40} The judgment creates tension with the OECD Convention, in which Article 4.3 constraint has turned out to be virtually unenforceable. Notably, the Court has conceptually differentiated “act” from “offence”, discussed above in the landmark case of Gamble v. United States. ^{Footnote 41} The soft law only goes as far as to advocate coordination between sovereign states (Brewster and Dryden Reference Brewster and Dryden2018). Without a legally binding treaty, recognizing the principle of double jeopardy is only at national discretion. This demonstrates the urgent need for an internationally recognized framework that applies the principle of avoiding multiple proceedings (Colangelo Reference Colangelo2009). A new Article 4-style instrument needs to be in place, which would more efficiently confer involved states’ obligations for pursuits of cross-border bribery. It is more sensible to explore a uniform recognition that the principle applies to foreign resolutions. Establishing a working group to determine a state that should be given a prioritized position for prosecution is also institutionally important.

A Challenge to the USA’s Hegemony of an “Ultimate Arbiter”?

The US resolutions have either become an integral part of a global settlement, like Société Générale or preceded a foreign prosecution, like Total, S.A. Given its prosecutors’ considerable leverage, the US authorities are plausibly considered the ultimate arbiter of the sufficiency of global anti-bribery enforcement (Davis Reference Davis2017). Based on such prosecutions, billions of dollars of fines are paid to the US treasuries (Garrett Reference Garrett2011). Given the pecuniary scale, those FCPA counterparts would be inclined to contemplate alternative schemes if they lost out on potential recoveries (Mathews Reference Mathews1997). On 2 June 2020, the French Minister of Justice issued a Guide on Criminal Policy Related to International Bribery (from now on, referred to as Sapin II Guide 2020) (French Ministry of Justice 2020), which reflects the proactive French attitude toward robust anti-bribery enforcement. It also represents another milestone after the enactment of Sapin II in 2016. The Guide 2020 encourages France to conduct more aggressive extraterritorial enforcement against transnational bribery committed by non-French companies. This would inevitably challenge the US position. As Davis (Reference Davis2017:344) pointed out:

There have been, so far, no uniform guidelines for the distribution of recoveries among jurisdictions (Doyle Reference Doyle2013). In practice, the lack of proof of concrete and measurable harm compromises the efficiencies of certain mechanisms established by supply-side jurisdictions (Stephenson Reference Stephenson2014b).

Redistribution of Recoveries

The US DoJ can channel some of the criminal penalty monies in FCPA cases into funding anticorruption initiatives in developing countries (Stephenson Reference Stephenson2014a). In May 2018, the No-Piling-On Policy set out principles to help enforcement agencies avoid punishing a company for the same underlying misconduct (U.S. Department of Justice 2018a). The 2020 FCPA Guide explicitly provides that US prosecutors should endeavour to coordinate with international counterparts. This approach helps avoid imposing duplicative penalties for the same conduct (U.S. Department of Justice and the Securities and Exchange Commission 2020:71). It is noteworthy that the authorities do not ensure that they will necessarily give credit for resolutions in other jurisdictions. The 2020 FCPA Guide also references some factors that enforcement agencies should consider in deciding whether and how much to consider penalties imposed by other authorities. They exercise discretion by weighing the factors during their decision-making. Some variables encompass the egregiousness of the crime and the adequacy of an MNC’s compliance (U.S. Department of Justice and the Securities and Exchange Commission 2020:71). The approach sometimes raises other issues related to the level of judicial review of settlements (Makinwa and Søreide Reference Makinwa and Søreide2018). Repatriation may depend upon whether the demand-side government has proactively prosecuted the bribe receiver (Sung Reference Sung2005).

It would be equitable to create mechanisms that make it viable for both demand- and supply-side states to address the redistributive recoveries. The former state may secure separate recoveries based on a firm’s settlement with the supply-side country. Whether the recoveries secured in a supply-side state should be transferred to the demand-side country remains a highly contentious issue (Holtmeier Reference Holtmeier2015). A more complex issue arises regarding how sovereigns will allocate those proceeds when more than one jurisdiction has the legitimacy to claim the assets. Complex as it is, the case of Airbus epitomizes such a general trend, culminating in the firm entering into a global settlement of €3.6 billion due to a joint investigation between France’s PNF, the UK’s SFO and the US DoJ (Moiseienko Reference Moiseienko2020). It represents a second significant step for France to become a major anticorruption enforcer. Airbus reflects a new variation in the burgeoning trend of coordinated global settlements. A mutual understanding at a strategic level manifests the developed relationships between the SFO, DoJ and PNF.