January 01, 2013

Another Bite at the Apple: Transnational Crimes Face Repeat Punishment

Litigation takes a look at carbon copy prosecutions, in which multiple countries punish the same transnational conduct.

Andrew S. Boutros

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Some say that “no good deed goes unpunished.” What a positively cynical—indeed, unhealthy—way to go through life. But what isn’t cynical, or for that matter hypothetical, is that in today’s international anticorruption sphere, certain transnational bad deeds (such as paying bribes to foreign officials) risk punishment over and over and over again. The concept is called “carbon copy” prosecutions. The term describes successive, duplicative prosecutions by multiple sovereigns for conduct offending the laws of each of those nations but arising out of the same common nucleus of operative facts. Stated differently, carbon copy prosecutions are situations in which prosecutors in different countries each punish transnational conduct that violates their own laws and they elect to do so after an offender has admitted to the wrongful conduct in an earlier foreign proceeding. The concept is still largely under-recognized, but its occurrence has increased in frequency, so much so that today’s criminal and civil litigators should be alert to it whenever they are called upon to handle a case involving transnational conduct.

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