In short, not a lot!
Why then were the Department of Justice and the Securities and Exchange Commission able to levy some $398 million, the fourth largest fine under the FCPA (Foreign Corrupt Practices Act), the US equivalent to our Bribery Act 2010, and enter into a deferred prosecution agreement with a French oil and gas company in relation to the payment of massive bribes to the Iranians?
It seems that Total SA were involved in paying bribes totalling $60 million to the chairman of an Iranian engineering company between 1995 and 2004, involving two intermediaries. It was alleged that the engineering company was largely owned and controlled by the Iranian government, and it concerned oil/gas drilling rights in the SIRR A and E, South Pars oil and gas fields.
The battle between Total SA and US authorities has been raging since 2010 and the only nexus between the Iranian bribery allegations and the USA was that $500,000 passed through a US bank in 1995. That is the sum total of any monies (0.8% of the bribes) that connected this situation with the Americans.
The French, who do have their own anti-bribery legislation, have decided to recommend that four senior Total SA employees should be prosecuted at some stage, but it isn’t suggested anywhere that they stand to gain any of the $398 million fine.
The terms of the DPA itself are interesting not just because they concern such an old allegation, but also that they demand an independent corporate compliance monitor be appointed, and extend international FCPA co-operation to an extent which has not been seen before.
It is also interesting because US legal commentators state that this is the first FCPA DPA that is within the US DPA Sentencing Guidelines, albeit, and surprisingly, at the lower end of the guidelines. It seems that most corporate fines under DPAs to date have been about 25% less than the recommended lower range.
Total did not self-report and did not have any anti-bribery and corruption compliance systems in place at all, so it is interesting that they were able to negotiate a fine towards the lower end of the guidelines in those circumstances.
This also points to a major criticism of the US approach to DPAs; that there just does not seem to be any consistency and transparency of approach, which makes it very difficult for any corporate offender when negotiating with the authorities. This flexibility and lack of a structured approach is useful for the US authorities, and of course the US judiciary currently have no real role to play in these agreements other than rubber stamping them.
This country will take a very different view of DPAs; the Judiciary here are determined to have a structured process with a defined role for the over-seeing Judge to play. The Sentencing Council, when drafting the DPA guidelines, will ensure consistency and transparency of approach. It may be in the end that the US will learn something from this country about the correct approach to DPAs.
However this DPA fine (and the much-rumoured News Corp FCPA settlement, supposedly in the region of $850 million) must be giving the SFO some food for thought?
