The Potential Promise and Perils of Introducing Deferred Prosecution Agreements Outside the U.S.

34 Pages Posted: 30 Jul 2019 Last revised: 15 Aug 2019

See all articles by Jennifer Arlen

Jennifer Arlen

New York University School of Law; European Corporate Governance Institute (ECGI)

Date Written: July 29, 2019

Abstract

Countries around the world are reforming their corporate criminal liability regimes to introduce deferred prosecution agreements (DPAs). DPAs can help deter crime when properly structured. But otherwise they can increase the risk of corporate misconduct. This chapter identifies the steps countries need to take in order to use DPAs to deter corporate crime. It then evaluates the recent reforms adopted in the U.K. and France. Both reforms are a significant step forward, yet further reform is needed. Neither the U.K. nor France can effectively deters corporate crime because both countries have excessively restrictive corporate criminal liability laws that let companies to profit from many crimes. These laws also undermine efforts to use DPAs to induce firms to self-report or cooperate. France’s reforms raise particular concern because French law provide no genuine incentive to self-report and appears to let companies enter into DPA-like agreements without promptly and fully cooperating with authorities. In addition, concerns remain about whether France is committed to bringing the individuals responsible for corporate crimes to justice. As a result, French DPAs could be counter-productive if they operate primarily to reduce sanctions imposed on companies without enhancing French prosecutors’ ability to sanction those responsible for corporate misconduct.

Suggested Citation

Arlen, Jennifer, The Potential Promise and Perils of Introducing Deferred Prosecution Agreements Outside the U.S. (July 29, 2019). NYU School of Law, Public Law Research Paper No. 19-30, NYU Law and Economics Research Paper No. 19-29, Available at SSRN: https://ssrn.com/abstract=3428657 or http://dx.doi.org/10.2139/ssrn.3428657

Jennifer Arlen (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

HOME PAGE: http://https://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=20658

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

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