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Chicago Journal of International Law

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367

Abstract

A handful of nations spearhead the global anti-corruption regime through the transnational enforcement of foreign bribery laws. These laws prohibit corporations with a connection to the enforcing nation from paying or offering bribes to the officials of a foreign nation. Enforcement agencies construe the extraterritorial application of these laws broadly, establishing their global prominence. The most notable example is the United States Department of Justice’s enforcement of the Foreign Corrupt Practices Act of 1977 (FCPA). Enforcement agencies typically resolve investigations against corporations through deferred prosecution agreements and other consensual settlement mechanisms known generally as non-trial resolutions. Fines and penalties paid pursuant to these agreements can extend beyond the billion-dollar mark. In most cases, money paid in fines and penalties goes to the treasury of the enforcing nation. However, a movement has emerged that advocates for the sharing of proceeds of non-trial resolutions with the victims of foreign bribery, namely, citizens and governments in the developing world. This movement is complemented by a small number of instances in which non-trial resolutions have been used to provide remediation in this manner. However, these cases do not reveal a coherent approach to remediation, and enforcement agencies do not have the benefit of any kind of conceptual or practical framework to guide the provision of remediation. The extant literature also fails to consider the many political and practical difficulties of coupling transnational foreign bribery enforcement with a remedial agenda. The purpose of this Article is to address the practicalities of when and how remediation might be written into the terms of non-trial resolutions. To achieve this goal, this Article assumes two functions. First, it offers a conceptual framework to underpin remediation by defining elusive notions such as harm, victimhood, and remediation itself. Second, it presents a list of factors to guide the provision of remediation in foreign bribery cases. The shared benefit of these conceptual and practical frameworks is that they allow remediation in foreign bribery settlements to be approached with newfound precision. These frameworks are ultimately geared toward moving practice forward in this fledging field by improving the consistency of outcomes and developing a body of precedent and best practices.

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