Negotiating without the victim state: the exclusiveness of anticorruption settlements

Purpose Corporate foreign bribery can have devastating consequences on communities and states. Over the past decade, there have been several promising developments, both national and international, that might increase the chances of victim states to receive remediation for the harm they suffered from foreign bribery. In particular, awareness has risen that victim states must be considered and new innovative items have been added to the toolbox of prosecutors in the fight against corruption that is assumed to also improve victim states’ standing in these procedures. This study aims to assess whether indeed victim states receive compensation through these novel procedures. Design/methodology/approach This study uses the three case studies of Switzerland, France and England and Wales for a comprehensive empirical and normative analysis of settlement agreements between defendants and prosecution authorities and of court jurisprudence. Findings This study shows that although de jure, it seems warranted to order the payment of remedies to victim states within domestic criminal proceedings, in practice, this rarely happens. A number of legal and practical obstacles account for this situation. This study, therefore, calls for the formulation of international guidelines containing the obligation to inform victim states of ongoing criminal proceedings on corporate foreign bribery, and guidance on how to identify the victim of this crime, as well as the damage caused. Originality/value This is the first contribution to verify whether claims that settlement agreements, recently introduced in England and Wales and France (and similar procedures are available in Switzerland), are beneficial for victim states in their quest to receive compensation. As this study shows that this is – not yet – the case in practice, this study proposes solutions that could lead the way for remediation of the harm caused by corporate corruption – and thereby, ultimately, to a more just outcome.

Multi-Tier Approaches to the Resolution of International Disputes

Multi-tier dispute resolution (MDR) entails an early attempt at mediation followed by arbitration or litigation if mediation is unsuccessful. Seemingly, everyone acknowledges MDR's attractiveness as a means of resolving disputes due to its combination of the flexibility and informality of mediation with the rigour and formality of arbitration or litigation. Yet, the question is why, except in China and some Asian jurisdictions, MDR is not resorted to around the world and MDR clauses in commercial contracts remain relatively uncommon. This book responds to that question by (1) surveying global regulatory approaches frameworks for MDR, (2) comparing MDR trends in Asia and the wider world, (3) identifying MDR's strengths and weaknesses, and (4) prescribing ways to address MDR's weaknesses (the enforceability of MDR clauses, the difficulties arising when the same person acts as mediator and decision-maker in the same dispute, and the enforcement of mediated settlement agreements resulting from MDR).

Singapore Convention on Mediation and Its Ratification in China

China has signed the United Nations Convention on International Settlement Agreements Resulting from Mediation, namely the Singapore Convention on Mediation, on August 7, 2019, making it possible for China’s domestic courts to resolve international commercial disputes by implementing settlement agreements resulting from international commercial mediation. Relying on the Belt and Road Initiative (BRI), numerous commercial mediation organizations have successively established and integrated mediation into the international commercial dispute resolution mechanism in making effort for the internationalization of China’s commercial mediation system under the background of improving diversified dispute resolution mechanisms. Based on the status quo of commercial mediation in China, this article focuses on the connection and convergence between China’s practice and the principle of the Convention, as well as discusses the rationality for its ratification.

The Albanian Enforcement System

This article presents an overview of the Albanian legal system of enforcement in the civil and commercial area. Its purpose is not only to identify the enforcement system in Albania and the characteristics of each enforcement title but also to compare it with that of the Brussels IA Regulation. The article concludes that the Albanian enforcement system is built on the spirit of the European system and is very similar to several European countries. However, the range of foreign enforcement titles that can be recognized and enforced in Albania is narrower than that provided in the European Union countries. Therefore, it should be expanded to include, in addition to irreversible judgments, other European enforcement acts, such as European Payment Order, Settlement Agreements, Authentic instruments, etc.

EBITDA and DACF multipliers as an indicator of investment attractiveness of domestic vertically integrated companies

Subject. The article addresses the EV/EBITDA and EV/DACF ratios of the twenty five largest public oil and gas corporations from 2008 to 2018. Objectives. The purpose is to identify key trends in the value of EV/EBITDA and EV/DACF ratios of biggest public oil and gas corporations, determine factors resulted in the changes over the studied period, and establish the applicability of these multipliers for assessing the business value within the industry. Methods. I apply methods of comparative and financial-economic analysis, and generalization of consolidated financial statements data. Results. The study revealed that EV/EBITDA and EV/DACF multiples are acceptable for valuing oil and gas companies. The EV level depends on profitability, proved reserves, and a country factor. It is required to adjust EBITDA for information on impairment, revaluation and write-off for assets that are reported separately from depreciation, depletion and amortization costs, as well as for income or expenses arising after the sale of fixed assets and as a result of effective court decisions or settlement agreements. It is advisable to adjust DACF for income, expenses and changes in assets and liabilities, which are caused by events that are unusual for oil and gas companies. Conclusions. The application of EV/EBITDA and EV/DACF multiples requires a detailed analysis and, if necessary, adjustments of their constituent components. However, they are quite relevant in the context of declining profitability and growing debt burden in the stock exchange sector of the global oil and gas industry.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 35 Singapore: Singaporean Perspectives on the Hague Principles

This chapter describes Singaporean perspectives on the Hague Principles. Party autonomy is recognized as a very important principle in the private international law of Singapore. The primacy given to the role of party autonomy is evidenced by the adoption of the New York Convention and UNCITRAL Model Law for international arbitration, the adoption of the Convention on Choice of Court Agreements for international litigation, and the palpable support of the UNCITRAL Convention on International Settlement Agreements Resulting from Mediation. Most of private international law in Singapore is sourced in judge-made law. In the absence of direct Singapore authority, Singapore courts have traditionally looked to English case law for guidance, but increasingly, the courts have looked to the laws of other jurisdictions, and indeed international instruments which do not have binding force in Singapore law. Given the level of sophistication of existing common law contract choice of law rules, it is unlikely that Singapore will engage in radical law reform. However, it is likely that the Singapore courts will continue to look to the Hague Principles for guidance in areas where the common law is unclear or where there is a gap or strong imperative for change.

Right Protection and Reconciliation of the Parties: The Issue of the Concepts and Correlation

The article analyzes the concept of legal protection, reveals its features. A distinction is made between protection of law and protection of law. Self-defense of civil rights is investigated. It is shown that self-defense is not an independent method of legal protection, since its result is not guaranteed by the state, and self-defense measures can be qualified as an offense. The concept and grounds for concluding an amicable agreement are revealed. It has been proved that amicable agreements can be concluded only in cases of a private law nature. Settlement agreements in public-law conflicts are allowed by the current procedural legislation, but they can be a means of committing corruption offenses. The author distinguishes between an amicable agreement as a procedural act and agreements on conciliation concluded out of court and having a civil law nature. Mediation is investigated as an out-of-court procedure for resolving civil conflicts. It was proposed to supplement the requirements for the candidacy of mediators with an indication of the obligatory presence of a higher legal education. It was also proposed to supplement the procedural legislation with sections on the procedure for challenging mediation agreements and on the issuance of writs of execution on them (by analogy with the decisions of arbitration courts), as well as an indication that the presence of a mediation agreement concluded by the parties is grounds for refusing to accept the statement of claim and for terminating proceedings on the case.