Rachel Brewster (photograph courtesy of the creator)
One of many central structural issues in transnational company legal enforcement is the chance of multijurisdictional prosecutions. When a number of states have prescriptive and adjudicative jurisdiction over the identical conduct, firms typically concern that they are going to face overlapping prosecutions.
This concern is widespread within the International Corrupt Practices Act (FCPA) context. International bribery is nearly all the time transnational: the bribe is paid in a single nation, by a agency headquartered in one other, typically listed on an trade in a 3rd. Moreover, the FCPA’s extraterritorial attain, which incorporates any agency listed on a U.S. trade, signifies that most main multinationals face the specter of “piling on” prosecution for overseas bribery.[1]
From an institutional design standpoint, this poses critical enforcement considerations. If firms anticipate cumulative sanctions throughout a number of jurisdictions, they might turn out to be much less keen to self-report or cooperate in anyone jurisdiction. The specter of multijurisdictional prosecutions can undermine the very disclosure incentives the trendy FCPA enforcement regime is constructed upon.[2]
As I talk about in my latest article, The Rise of International FCPA Settlements, the US has developed an off-the-cuff institutional response to this downside: the worldwide FCPA settlement.[3] These coordinated resolutions, through which a number of states enter into simultaneous or consecutive agreements with a company defendant and allocate penalties amongst themselves, are a realistic design answer to multijurisdictional danger. International settlements have been utilized in most blockbuster FCPA resolutions, together with the Goldman Sachs, Odebrecht, and Airbus resolutions.
Though the way forward for world settlements is unsure underneath the second Trump administration, the mannequin has confirmed to be a robust instrument to resolve transnational instances.
International settlements are a method to handle overlapping jurisdiction between states. International governments need a seat on the negotiating desk, and the US advantages from the extra investigative and prosecutorial sources.
From the angle of overseas governments, world settlements present authority, legitimacy, and monetary advantages. Coordinated settlements permit dwelling states of multinational firms to take part in figuring out the destiny of their multinationals, fairly than ceding enforcement solely to Washington. International settlements present overseas governments with a voice in FCPA resolutions, permitting them to affect the extent of penalties, compliance reforms, and—in some instances—the choice of screens from the company’s dwelling state. International settlements moreover present for the sharing of legal and civil penalties, enabling host or dwelling states to obtain a portion of penalties—typically within the tons of of thousands and thousands of {dollars}—tied to the misconduct.
The US, for its half, needs to provide world settlements to increase enforcement capability whereas preserving disclosure incentives. International bribery investigations are resource-intensive and factually advanced, typically requiring entry to witnesses, monetary data, and regulatory authorities overseas. Cooperation with overseas enforcement businesses will increase investigatory attain, producing extra and higher proof.
On the identical time, world settlements mitigate the deterrent impact of cumulative litigation publicity. If firms concern duplicative penalties throughout jurisdictions, they might decline to self-report. By crediting penalties paid to overseas authorities and negotiating an built-in final result, U.S. prosecutors scale back uncertainty and maintain the voluntary disclosure framework on which FCPA enforcement relies upon. On this sense, world settlements are enforcement-enhancing: elevating the expectation of detection whereas decreasing the prices of disclosure.
Lastly, world settlements can improve the legitimacy of FCPA resolutions, representing a multilateral settlement on penalties and compliance reforms fairly than unilateral American actions.
In brief, world settlements symbolize a type of coordinated comity. As a substitute of competing to claim jurisdiction or imposing duplicative sanctions, sovereigns negotiate allocation and crediting. The mannequin strikes states away from jurisdictional battle and towards structured cooperation, reworking overlapping authority into an institutionalized mechanism of coordination.
A key turning level in enabling this mannequin was the DOJ’s 2018 “piling on” memorandum, which instructed prosecutors to coordinate with different enforcement authorities and keep away from duplicative penalties.[4]
The memo didn’t create the worldwide settlement mannequin. Coordinated resolutions had already begun to emerge a number of years prior underneath the Obama administration. However the memo formalized an inside DOJ coverage of crediting penalties paid to different home and overseas authorities and inspiring inter-sovereign coordination.
This coverage transfer was institutionally important. It diminished uncertainty for company defendants about cumulative sanctions and signaled to overseas regulators that coordination, not competitors, was the popular mannequin. It additionally allowed worldwide motion to be a drive multiplier: the specter of a number of governments cooperating on a corruption investigation will increase firms’ incentive to self-report if there may be better assurance of a single decision.[5] In whole, the coverage of crediting overseas penalties displays a recognition that extreme penalties could undermine enforcement targets and generate diplomatic friction that doesn’t produce proportionate compliance positive factors.
The Trump Administration’s retrenchment from sturdy FCPA enforcement complicates the way forward for world settlements. There are fewer sources devoted to FCPA instances, so there are fewer alternatives for world settlements. As well as, this administration seems to have little urge for food for world cooperation, significantly the sharing of penalties, that’s the hallmark of world settlements. Nonetheless, for firms which can be targets of FCPA enforcement, this raises the specter of extra multijurisdictional danger.
Going ahead, the institutional foundations to revive world settlements exist. International governments have strengthened their home anti-bribery legal guidelines and procedural instruments partly to have interaction in coordinated enforcement. Casual channels of cooperation and penalty crediting practices have been established. The normative expectation of session amongst regulators has turn out to be embedded in apply.
Thus, whereas world settlements could decline in frequency within the close to time period, the mannequin stays viable. Future administrations may readily reactivate and increase coordinated enforcement methods.
The worldwide settlement mannequin additionally provides a framework for casual transnational cooperation past overseas bribery legislation.
Different regulatory areas—corresponding to export management violations, sanctions enforcement, and sure types of monetary misconduct—current comparable multijurisdictional publicity dangers. Companies working globally could face overlapping jurisdiction from the US, the European Union, the UK, and different sovereigns.
In these areas, as in anti-corruption enforcement, the specter of cumulative prosecution could discourage voluntary disclosure. A coordinated settlement framework—the place regulators conform to share info, credit score penalties, and negotiate parallel resolutions—may mitigate disclosure disincentives whereas preserving deterrence.
[1] See Andrew S. Boutros & T. Markus Funk, “Carbon Copy” Prosecutions: A Rising Anticorruption Phenomenon in a Shrinking World, 2012 U. CHI. LEGAL F. 259 (2012); Jay Holtmeier, Cross-Border Corruption Enforcement: A Case for Measured Coordination Amongst A number of Enforcement Authorities, 84 FORDHAM L. REV. 493, 498 (2015).
[2] Jennifer Arlen, Prosecuting Past the Rule of Legislation: Company Mandates Imposed By way of Deferred Prosecution Agreements, 8 J. LEG. ANALYSIS 191 (2016).
[3] Rachel Brewster, The Rise of International FCPA Settlements, 104 TEX L. REV. 299 (2025).
[4] Memorandum from Rod Rosenstein, Deputy Att’y Gen., U.S. Dep’t of Simply., on Coverage on Coordination of Corp. Decision Penalties to Heads of Dep’t Parts, U.S. Att’ys (Could 9, 2018). Piling on is (in fact) a sports activities metaphor, however it’s a uncommon instance of legal professionals utilizing soccer fairly than baseball metaphors.
[5] Rod Rosenstein, Deputy Att’y Gen., U.S. Dep’t of Simply., Remarks to the New York Metropolis Bar White Collar Crime Institute (Could 9, 2018) (referring to cooperation with overseas counterparts as a “drive multiplier”).
Rachel Brewster is the Jeffrey and Bettysue Hughes Professor of Legislation at Duke Legislation College. Her analysis focuses on worldwide financial legislation, overseas funding regulation, and anti-corruption enforcement.
The views, opinions and positions expressed inside all posts are these of the creator(s) alone and don’t symbolize these of the Program on Company Compliance and Enforcement (PCCE) or of the New York College College of Legislation. PCCE makes no representations as to the accuracy, completeness and validity or any statements made on this website and won’t be liable any errors, omissions or representations. The copyright of this content material belongs to the creator(s) and any legal responsibility almost about infringement of mental property rights stays with the creator(s).
Rachel Brewster (photograph courtesy of the creator)
One of many central structural issues in transnational company legal enforcement is the chance of multijurisdictional prosecutions. When a number of states have prescriptive and adjudicative jurisdiction over the identical conduct, firms typically concern that they are going to face overlapping prosecutions.
This concern is widespread within the International Corrupt Practices Act (FCPA) context. International bribery is nearly all the time transnational: the bribe is paid in a single nation, by a agency headquartered in one other, typically listed on an trade in a 3rd. Moreover, the FCPA’s extraterritorial attain, which incorporates any agency listed on a U.S. trade, signifies that most main multinationals face the specter of “piling on” prosecution for overseas bribery.[1]
From an institutional design standpoint, this poses critical enforcement considerations. If firms anticipate cumulative sanctions throughout a number of jurisdictions, they might turn out to be much less keen to self-report or cooperate in anyone jurisdiction. The specter of multijurisdictional prosecutions can undermine the very disclosure incentives the trendy FCPA enforcement regime is constructed upon.[2]
As I talk about in my latest article, The Rise of International FCPA Settlements, the US has developed an off-the-cuff institutional response to this downside: the worldwide FCPA settlement.[3] These coordinated resolutions, through which a number of states enter into simultaneous or consecutive agreements with a company defendant and allocate penalties amongst themselves, are a realistic design answer to multijurisdictional danger. International settlements have been utilized in most blockbuster FCPA resolutions, together with the Goldman Sachs, Odebrecht, and Airbus resolutions.
Though the way forward for world settlements is unsure underneath the second Trump administration, the mannequin has confirmed to be a robust instrument to resolve transnational instances.
International settlements are a method to handle overlapping jurisdiction between states. International governments need a seat on the negotiating desk, and the US advantages from the extra investigative and prosecutorial sources.
From the angle of overseas governments, world settlements present authority, legitimacy, and monetary advantages. Coordinated settlements permit dwelling states of multinational firms to take part in figuring out the destiny of their multinationals, fairly than ceding enforcement solely to Washington. International settlements present overseas governments with a voice in FCPA resolutions, permitting them to affect the extent of penalties, compliance reforms, and—in some instances—the choice of screens from the company’s dwelling state. International settlements moreover present for the sharing of legal and civil penalties, enabling host or dwelling states to obtain a portion of penalties—typically within the tons of of thousands and thousands of {dollars}—tied to the misconduct.
The US, for its half, needs to provide world settlements to increase enforcement capability whereas preserving disclosure incentives. International bribery investigations are resource-intensive and factually advanced, typically requiring entry to witnesses, monetary data, and regulatory authorities overseas. Cooperation with overseas enforcement businesses will increase investigatory attain, producing extra and higher proof.
On the identical time, world settlements mitigate the deterrent impact of cumulative litigation publicity. If firms concern duplicative penalties throughout jurisdictions, they might decline to self-report. By crediting penalties paid to overseas authorities and negotiating an built-in final result, U.S. prosecutors scale back uncertainty and maintain the voluntary disclosure framework on which FCPA enforcement relies upon. On this sense, world settlements are enforcement-enhancing: elevating the expectation of detection whereas decreasing the prices of disclosure.
Lastly, world settlements can improve the legitimacy of FCPA resolutions, representing a multilateral settlement on penalties and compliance reforms fairly than unilateral American actions.
In brief, world settlements symbolize a type of coordinated comity. As a substitute of competing to claim jurisdiction or imposing duplicative sanctions, sovereigns negotiate allocation and crediting. The mannequin strikes states away from jurisdictional battle and towards structured cooperation, reworking overlapping authority into an institutionalized mechanism of coordination.
A key turning level in enabling this mannequin was the DOJ’s 2018 “piling on” memorandum, which instructed prosecutors to coordinate with different enforcement authorities and keep away from duplicative penalties.[4]
The memo didn’t create the worldwide settlement mannequin. Coordinated resolutions had already begun to emerge a number of years prior underneath the Obama administration. However the memo formalized an inside DOJ coverage of crediting penalties paid to different home and overseas authorities and inspiring inter-sovereign coordination.
This coverage transfer was institutionally important. It diminished uncertainty for company defendants about cumulative sanctions and signaled to overseas regulators that coordination, not competitors, was the popular mannequin. It additionally allowed worldwide motion to be a drive multiplier: the specter of a number of governments cooperating on a corruption investigation will increase firms’ incentive to self-report if there may be better assurance of a single decision.[5] In whole, the coverage of crediting overseas penalties displays a recognition that extreme penalties could undermine enforcement targets and generate diplomatic friction that doesn’t produce proportionate compliance positive factors.
The Trump Administration’s retrenchment from sturdy FCPA enforcement complicates the way forward for world settlements. There are fewer sources devoted to FCPA instances, so there are fewer alternatives for world settlements. As well as, this administration seems to have little urge for food for world cooperation, significantly the sharing of penalties, that’s the hallmark of world settlements. Nonetheless, for firms which can be targets of FCPA enforcement, this raises the specter of extra multijurisdictional danger.
Going ahead, the institutional foundations to revive world settlements exist. International governments have strengthened their home anti-bribery legal guidelines and procedural instruments partly to have interaction in coordinated enforcement. Casual channels of cooperation and penalty crediting practices have been established. The normative expectation of session amongst regulators has turn out to be embedded in apply.
Thus, whereas world settlements could decline in frequency within the close to time period, the mannequin stays viable. Future administrations may readily reactivate and increase coordinated enforcement methods.
The worldwide settlement mannequin additionally provides a framework for casual transnational cooperation past overseas bribery legislation.
Different regulatory areas—corresponding to export management violations, sanctions enforcement, and sure types of monetary misconduct—current comparable multijurisdictional publicity dangers. Companies working globally could face overlapping jurisdiction from the US, the European Union, the UK, and different sovereigns.
In these areas, as in anti-corruption enforcement, the specter of cumulative prosecution could discourage voluntary disclosure. A coordinated settlement framework—the place regulators conform to share info, credit score penalties, and negotiate parallel resolutions—may mitigate disclosure disincentives whereas preserving deterrence.
[1] See Andrew S. Boutros & T. Markus Funk, “Carbon Copy” Prosecutions: A Rising Anticorruption Phenomenon in a Shrinking World, 2012 U. CHI. LEGAL F. 259 (2012); Jay Holtmeier, Cross-Border Corruption Enforcement: A Case for Measured Coordination Amongst A number of Enforcement Authorities, 84 FORDHAM L. REV. 493, 498 (2015).
[2] Jennifer Arlen, Prosecuting Past the Rule of Legislation: Company Mandates Imposed By way of Deferred Prosecution Agreements, 8 J. LEG. ANALYSIS 191 (2016).
[3] Rachel Brewster, The Rise of International FCPA Settlements, 104 TEX L. REV. 299 (2025).
[4] Memorandum from Rod Rosenstein, Deputy Att’y Gen., U.S. Dep’t of Simply., on Coverage on Coordination of Corp. Decision Penalties to Heads of Dep’t Parts, U.S. Att’ys (Could 9, 2018). Piling on is (in fact) a sports activities metaphor, however it’s a uncommon instance of legal professionals utilizing soccer fairly than baseball metaphors.
[5] Rod Rosenstein, Deputy Att’y Gen., U.S. Dep’t of Simply., Remarks to the New York Metropolis Bar White Collar Crime Institute (Could 9, 2018) (referring to cooperation with overseas counterparts as a “drive multiplier”).
Rachel Brewster is the Jeffrey and Bettysue Hughes Professor of Legislation at Duke Legislation College. Her analysis focuses on worldwide financial legislation, overseas funding regulation, and anti-corruption enforcement.
The views, opinions and positions expressed inside all posts are these of the creator(s) alone and don’t symbolize these of the Program on Company Compliance and Enforcement (PCCE) or of the New York College College of Legislation. PCCE makes no representations as to the accuracy, completeness and validity or any statements made on this website and won’t be liable any errors, omissions or representations. The copyright of this content material belongs to the creator(s) and any legal responsibility almost about infringement of mental property rights stays with the creator(s).
