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

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.