Negotiating Non-Contention: Civil Recovery and Deferred Prosecution in Response to Transnational Corporate Bribery

While corporate bribery is a serious crime, that seriousness is often not reflected in the state’s criminal justice response. Due to a variety of reasons, it is rare that companies are prosecuted in England and Wales for bribery. Over the past decade, two alternative approaches have been relied upon to respond to such crime, reflecting a strategic preference for negotiation, rather than contention, and a sanctioning preference characterised by deferred or non-prosecution. The chapter explores this negotiation of non-contention, seeking to understand its nature and purpose by detailing the use of two non-prosecution based approaches – specifically civil recovery and deferred prosecution agreements (DPAs) – towards corporate bribery. For each of these, the chapter will examine how these tools came to the fore of tackling corporate bribery, the advantages/disadvantages of each, and how they are used in practice with reference to leading cases. We conclude by raising the question of whether negotiated non-contention is emerging as the ‘new’ accommodation of corporate bribery.