A Better Deal? Negotiated Responses to the Proceeds of Grand Corruption

Judicially supervised negotiated settlements have featured heavily of late in discourse on responses to financial crimes committed by corporations. The United States has recently concluded a series of proceeds of kleptocracy settlements with individuals using processes which, from transparency and accountability perspectives, compare favourably to England’s asset recovery practice. This paper seeks to foster a conversation on whether the use of negotiated responses could or should be extended to arrangements with natural persons who are suspected of laundering the proceeds of grand corruption in England. It addresses some reservations that arise where negotiated responses to official corruption are employed and seeks to identify principled and practical justifications for the use of settlements instead of public civil recovery proceedings. It also draws on the US and English experiences in entering into settlements with companies for bribery offences in attempting to identify some of the main pitfalls and benefits implicit in utilising negotiated responses to corruption. The paper concludes by tentatively endorsing as an imperfect but pragmatic option the use of settlements as an alternative to existing asset recovery measures for corruptly-acquired assets.


I INTRODUCTION
Although no formal definition exists in international law, Ôkleptocracy' is broadly agreed by international law scholars to constitute Ôinstances of corruption committed by senior public officials involving large sums of money…', or more literally, Ôrule by thieves'. 1 Frequently, the proceeds of kleptocracy are transferred abroad, beyond the reach of local law enforcement, and laundered. International political momentum against kleptocracy is building. Although, owing to the clandestine nature of the activities involved, it is impossible to evaluate quantitively kleptocracy's impact, the link between grand corruption and its adverse effects on essential services and human rights is clear. The UN General Assembly (''UNGA'') has held that Ô… it can exacerbate poverty and inequality and may disproportionately affect the most disadvantaged individuals in society.' 2 In June 2021, the UNGA unanimously adopted a political declaration reaffirming the UN's commitment to review gaps and challenges in international anti-corruption law and to implement measures to prevent and combat corruption. 3 In the same month, the United States officially made the fight against corruption a core national security policy. 4 It is currently proving itself reactive both in naming and shaming foreign corrupt officials, 5 and in recovering the proceeds of corruption from them. 6 This paper explores whether unease around entering into settlements with individuals to facilitate the recovery of grand corruption proceeds may or may not be justified when viewed through the prism of asset recovery processes in England. It evaluates critically whether civil recovery settlements meet the objectives of anti-corruption initiatives (including the United Nations Convention Against Corruption (''UNCAC'')) as recently identified by Kevin Davis; namely, Ôeffectiveness, efficiency, and [observation of] due process.' 7 It does this primarily by comparing civil recovery processes typically employed by English enforcement authorities with forms of privately negotiated settlement process, including those recently employed to recover corruptly-acquired assets held in the US (another common law legal system, with similarities in its approach to civil recovery) and with Deferred Prosecution Agreements (''DPAs'') agreed by States with companies in foreign bribery contexts.
2 Resolution S-32/1 adopted by UNGA on 02/06/2021: ÔOur common commitment to effectively addressing challenges and implementing measures to prevent and combat corruption and strengthen international cooperation', p. 3. 3 Ibid.
After this introduction, the paper is presented in five Parts. Part II briefly sets out the international law context and jurisdictional considerations involved in dealing with the proceeds of grand corruption. Part III describes the current state of play around recovering the proceeds of official corruption in England and highlights how traditional civil recovery processes may not always be appropriate where the proceeds of grand corruption are involved. Part IV outlines the case in favour of negotiated settlements. After Part V specifically addresses due process concerns arising through settlement use, Part VI turns attention to further reservations that might accompany its availability. The paper concludes by tentatively endorsing negotiated arrangements as an imperfect but sometimes pragmatic means of dealing with the proceeds of grand corruption.
Rather than offering any firm conclusions on the efficacy or desirability of negotiated responses, this paper instead seeks to foster a conversation on whether the use of settlement responses could or should be extended to negotiated arrangements with alleged kleptocrats suspected of laundering the proceeds of grand corruption in England. It addresses some reservations that arise where negotiated responses to official corruption are adopted and identifies principled and practical justifications that might inform the use of settlements instead of public civil recovery proceedings in future. It also addresses pragmatic compromises that may need to be made in settlement processes. Assuming that in principle, the Ôbest' outcome of a settlement process from a legitimacy and effectiveness perspective is that both the amount of assets recovered and the level of transparency around settlements is maximised, in practice, it is suggested, one of these components may sometimes need to be privileged over the other.
Settlement agreements dealing with the proceeds of grand corruption are a strange beast. Traditionally, when parties enter into civil settlements, they do so to enforce specific obligations owed directly to each other. Parties predict the likely outcome of litigation, then settle on that basis, whilst benefiting from avoiding the costs and publicity of that litigation. 8 Negotiation in, or adjacent to, the criminal law realm is different. The objectives of bargaining in that context include sanction and deterrence; bargains are informed to varying degrees by, inter alia, 8 Though really, settlements will be shaped by numerous additional extra-legal factors. See: Stephanos Bibos, ÔPlea Bargaining Outside the Shadow of Trial ' (2004) 8 Harv L Rev 2463. enforcement authorities' preferences, investigative resource levels and sentencing guidelines. 9 Notwithstanding its prevalence in Anglo-American criminal law, an Ôastonishing amount remains unknown including much about [plea bargaining's] … consequences, and dynamics.' 10 Negotiated responses to corruption sit uneasily at the intersection of criminal and civil bargains, a binary which is unhelpful and perhaps artificial in a proceeds of grand corruption context. It results in acts of grand corruption and the proceeds of those acts being addressed using processes that are largely divorced from each other. Meaningful data on how negotiations are conducted, the processes deployed to conclude settlements, and what happens to realised proceeds subsequently is often limited. Although settlement agreements are formally civil in nature, they are concerned with some of the same public interest considerations central to criminal law enforcement. As this paper will demonstrate, navigating the competing demands of the two paradigms is not straightforward.

II GRAND CORRUPTION AND JURISDICTION
This Part outlines the normative basis in public international law for negotiated resolutions, and the scope of the duty to repatriate recovered assets. It also provides background for why asset recovery processes in Holding States typically take the form of non-conviction based civil or administrative proceedings instead of criminal proceedings.
The United Kingdom is a party to the two leading international anti-corruption conventions: the UNCAC and the Organisation for Economic Co-operation and Development's Anti-Bribery Convention (''OECD-ABC''). 11 Since the UNCAC was introduced in 2005, a trend towards individual accountability of senior political officials who misappropriate their states' (''Affected States'') assets through corrupt acts has crystallised into a norm, 12 and the term Ôgrand corruption' is now commonly used in anti-corruption circles. 13 The prevalence of laissez faire attitudes to grand corruption which, before the end of the Cold War era, proved politically convenient to some states in the Global North, 14 has largely abated. The asset recovery database maintained by the Stolen Asset Recovery Initiative (''StAR'') evidences a dramatic upswing from 2000 onwards in recoveries of grand corruption proceeds and their repatriation to Affected States by the overseas states in which such proceeds were concealed (''Holding States''). 15 The UNCAC's States Parties recently resolved that Holding States should redouble asset recovery and return efforts, urging use of Ôproactive measures.' 16 They endorsed the employment of Ôalternative legal mechanisms and non-trial resolutions including settlements in corruption proceedings.' 17 Little scrutiny has so far been afforded, in England and Wales at least, 18 to the potential benefits of negotiating settlements with allegedly corrupt foreign senior public officials, their families and their close associates (collectively known as ''PEPs'' or Ôpolitically exposed persons' in anti-corruption argot) as an alternative to pursuing civil recovery proceedings through the courts so as to fulfil asset recovery and return responsibilities under the UNCAC. In a grand corruption context, formal civil recovery proceedings 12 See: Hun Joon Kim and JC Sharman, ÔAccounts and Accountability: Corruption, Human Rights, and Individual Accountability Norms' (2014) 68 Int Org 418. 13 ÔGrand corruption' and Ôkleptocracy', each understood as meaning offences involving senior public officials committing acts resulting in what Transparency International (TI) refers to as the Ôgross misappropriation of public funds or resources, or gross violations of the human rights of a substantial part of the population or of a vulnerable group', are used interchangeably in this paper. See 18 References to ÔEngland' or ÔEnglish' laws or courts hereafter in this paper will be references to England and Wales, their laws and their courts respectively. through the courts are not typically utilised in practice and might be perceived as somewhat problematic in principle for various reasons, 19 so it is worthwhile looking at alternative options including negotiated responses to recovering the proceeds of corruption. However, commentators frequently question the suitability of Ônegotiated justice' mechanisms as a means of targeting crimes committed by elites. 20 Their use, it is argued, Ômay not correspond with the public interest where social equality, fairness and justice is expected' 21 because it promotes a view that wrongdoers can essentially buy their way out of meaningful sanction for their wrongdoing.
The OECD-ABC inter alia requires States Parties to criminalise bribe-making, and requires that any proceeds should be seized and confiscated. 22 This has formed the basis for offences under the UK's Bribery Act 2010, in turn resulting in twelve DPAs with corporates being finalised to date in England. 23 Pursuant to DPAs, enforcement authorities agree to defer prosecutions against companies accused of overseas bribery provided they share information, inter alia, which might lead to prosecutions of individuals who instigated the bribery. 24 DPAs are agreed with companies rather than individuals and might be regarded as formally criminal rather than civil. 25 Nevertheless, drawing literature on DPAs into a conversation on settlements with PEPs is worthwhile, because each comprises a form of negotiated response to grand corruption. Should negotiated responses to grand corruption become more common, many of the same benefits of and criticisms made of DPAs will apply to such settlements. 19  The UNCAC, which is the subject of near-universal subscription, 26 is the more salient instrument in terms of dealing with PEPs who benefit from the receipt of bribes and who commit grand corruption offences. It requires States Parties to criminalise Ôembezzlement, misappropriation or other diversion by a public official for his or her benefit…' 27 and money laundering. 28 States Parties are asked to consider (on a nonmandatory basis) criminalising public officials soliciting or accepting bribes, 29 and introducing offences of illicit enrichment (that is, where PEPs hold inexplicable wealth). 30 Its most important provisions for this paper's purposes relate to settlements, sovereignty and asset recovery. First, Article 37 requires States Parties to Ôtake appropriate measures' to: encourage persons who participate or who have participated in the commission of an offence… to supply information useful to competent authorities for investigative and evidentiary purposes and to provide factual, specific help to competent authorities that may contribute to depriving offenders of the proceeds of crime and to recovering such proceeds. 31 Although the UNCAC does not expressly contemplate settlements, 32 cooperation is likely more feasible in non-adversarial, consensual contexts, and some commentators posit a view that negotiated resolutions are Ôclearly contemplated' by the language used in Article 37. 33 More recently, the UN has again gestured towards settlements' utility in recovering corruption proceeds, referring to its members Ô…employing alternative legal mechanisms and non-trial resolutions, including settlements, in corruption proceedings that have proceeds of crime for confiscation and return.' 34 Second, Article 4 of the UNCAC emphasises the importance of States Parties carrying out their obligations under the Convention Ôin a manner consistent with the principles of sovereign equality and territorial integrity of States'. This constitutes implicit deference to the 26 It currently has 189 signatories. 27  Unfortunately, one result of kleptocrats being shielded from prosecution because of respect for territorial jurisdiction, particularly where they are part of a regime with permissive attitudes towards corruption is that they can often enjoy de facto impunity. The most immediately practical response to such corruption within the boundaries of respect for territorial jurisdiction for Holding States is often (i) to focus on asset recovery and repatriation, and (ii) to seek to hold those who commit or facilitate the commission of money laundering offences within their own jurisdictions to account.
Third, the UNCAC provides that returning corruptly acquired assets to Affected States is a Ôfundamental principle.' 39 Notwithstanding its Ôfundamental' nature, the notion of unconditional return of assets to Affected States is Ôeffectively confined to situations when a foreign judgment is recognized and enforced.' 40 This is born of a sometimes legitimate concern that Holding States may be required to deliver assets back into the hands of the corrupt administrations who stole them in the first place. 41 Beyond this, there is no obligation per se to return assets to Affected States. Holding States are merely asked to Ôgive priority consideration' to returning assets. In practical terms, this absence of a clear legal obligation to return assets or even to ensure that assets are used for the benefit of an proceeds in the London property market has been demonstrated repeatedly in recent decades. 46 It is reasonable to describe the UK's track record in recovering the proceeds of corruption from PEPs as patchy. 47 From 2014 to mid-2018, enforcement authorities returned a relatively modest £49m worth of assets to Affected States. 48 This sum represented the proceeds from a mere five investigations, only two of which involved assets seized from corrupt PEPs. 49 A database maintained by StAR tracking grand corruption proceeds recovery shows that after a flurry of new investigations were opened by the UK in respect of assets originating in Libya, Tunisia and Egypt following the Arab Spring uprisings in 2011, very few recovery processes were initiated subsequently. 50 Even accepting that as of the time of writing, StAR's database appears incomplete and apparently most recently updated in 2019, the UK's recovery rate seems low 46 Eg limited success in England in recovering corruptly acquired assets originating in Ukraine and, following the Arab Spring, countries in North Africa. See ) and the proceeds of corruption laundered by a public official convicted for fraud and bribery offences in Macau. 50 The StAR database is available at: https://star.worldbank.org/asset-recoverywatch-database. As of March 2022, the only asset recoveries shown to have been subsequently initiated by the UK were in respect of: in 2014, assets misappropriated by Sani Abacha and assets the subject of the Chad Oil case (ibid); and in 2013, Tanzanian assets linked to a DPA made between Standard Bank Plc and the SFO.
given the issues identified by NGOs 51 and its Government's own analysis. 52 Other countries are far more active. With the cooperation of its international counterparts, the US claims to have Ôrestrained in U.S. courts more than $3.2bn in assets linked to foreign corruption'. 53 As of September 2020, the US had recovered or assisted in the recovery of over $1bn worth of funds to Malaysia pursuant to a series of settlement agreements with individuals alleged to have conspired to misappropriate over US$4.5bn from the 1Malaysia Development Berhad sovereign fund, a scandal first uncovered in 2015. 54 The subject matter of the 1MDB Settlements comprises not only assets held in the US, but also various London properties. 55 In May 2020, the US agreed to return to Nigeria $300m misappropriated by former president Sani Abacha. 56 The value of funds actually repatriated to 51  Affected States by the US is difficult to pin down, but based on the foregoing, it is likely substantially higher than the UK's figure. 57 Moreover, viewed against the UK's recent activity, the US's willingness to pursue unilaterally the proceeds of grand corruption (that is, otherwise than at an Affected State's request) is more apparent. In 2014 for example, it famously pursued a civil asset forfeiture case against US-based assets owned by Teodoro ÔTeddy' Nguema Obiang Mangue, the sitting vice president of Equatorial Guinea -a country with one of the world's lowest standards of living -leading to a settlement agreement pursuant to which Obiang inter alia agreed to forfeit $30m worth of his assets to the US authorities (the ''Obiang Settlement''). 58 It should be noted at this juncture that the US settlements briefly discussed in this paper are specific case studies and should not be taken as representative of the American criminal justice systems' approaches to the proceeds of corruption more generally. 59 The discussion should be read in the context of a federal US criminal justice system that is in general more reliant on and familiar with Ôbargaining' in case management than its English counterpart. There is rich scope for analysis of how this aspect of the American federal criminal justice system impacts upon approaches to negotiating the proceeds of corruption. Owing to space constraints however, it will not be made in this piece.
In contrast to the US's history of taking cases unilaterally, grand corruption-linked civil recoveries in England are pursued only in respect of assets owned by individuals or those connected to individuals either against whom parallel criminal proceedings have been instituted and/or concluded in their Affected States or, as in the Arab Spring matters, in respect of notoriously corrupt PEPs already ousted from office. 57 The report footnoted supra at note 53 says the US's Kleptocracy International Recovery Initiative has Ôsuccessfully completed recovery and assisted foreign governments in the recovery of over $150 million in assets' since 2010. A House Report dated 14/05/2019 of the US House of Representatives (H Rpt 116-60) on the thenproposed Kleptocracy Asset Recovery Rewards Act notes that Ôthe Department of State and the Internal Revenue Service have similar programs' suggesting that additional sums may have been repatriated, the numbers for which are not included in the report. 58  The reasons for the UK's recent dormancy in recovering kleptocratic proceeds are unclear but might be partly informed by enforcement authority resources. For grand corruption proceeds, the best practice expectation is that recovered proceeds (less reasonable investigation and enforcement expenses) will be restored to Affected States. 60 This means that proactive unilateral pursuit of such proceeds must be premised at least partially on an altruistic sensibility on an enforcement authority's part. 61 By contrast, for wholly domestic matters, enforcement authorities are incentivised by the prospect of a cut of sums recovered through civil recovery processes. 62 Policy concerns around disincentivising foreign direct investment (''FDI''), which has a net positive impact on the economy, 63 might also explain the low propensity toward enforcement. 64 This is not to say that recovery efforts are non-existent. The National Crime Agency (''NCA'') recently exercised non-conviction based asset recovery powers to recover assets from Zamira Hajiyeva, the wife of a jailed former president of an Azeri state-owned bank using unexplained wealth orders (''UWOs''). 65 In England, an UWO is an investigative order for which enforcement authorities can apply to the High Court against property holders who hold assets apparently incommensurate with their known legal incomes and who are either (i) PEPs or (ii) suspected of involvement with serious crime (or 60 64 The tension between encouraging FDI yet discouraging inflow of corrupt assets is highlighted by TI UK's criticisms on the operation of the UK's Tier 1 visa scheme, which confers a visa and, after five years, residency rights in return for a minimum £2m investment in UK bonds or shares. From 2008-2015, 97 per cent of Tier 1 investors, including the respondent in the Hajiyeva case (infra note 65) came to the UK during a Ôblind faith' period whereby the authorities did not examine the source of funds invested by applicants -TI UK, Gold rush: investment visas and corrupt capital flows into the UK, October 2015, available at: https://www.transparency.org. uk/sites/default/files/pdf/publications/GoldRush-TI-UK.pdf . 65 Hajiyeva v NCA [2020] EWCA Civ 108.
being connected with someone so involved). 66 UWO respondents who fail to provide a credible explanation as to the licit origin of their assets risk having their property civilly recovered. The measure was introduced inter alia to address the proceeds of kleptocracy being laundered in the UK. 67 The Hajiyeva case was notable not just because it is the first and, to date, 68 only successful use of an UWO against a PEP in England, but also because of the rarity of asset recoveries instituted against elites through the English courts more generally. Additionally, outside of the courts, some appetite to recover assets from individuals through settlements apparently exist. In December 2019 for example, the NCA reached a settlement worth £190m following an investigation into Malik Riaz Hussain, a Pakistani businessman with assets in England. Recovered assets included a £50m London property held through an offshore company and the contents of a number of bank accounts (the Hussain Settlement). This matter is discussed further in Part V. 69

How are the Proceeds of Grand Corruption Pursued in England?
There is some scope for the proceeds of grand corruption held in England to be recovered by means of conviction-based confiscation, even if the relevant PEP's Affected State has not instituted criminal proceedings against them. Where a constituent element of a theft or fraud offence occurs in England, even if all of the other elements occur in another jurisdiction, then the English courts may establish jurisdiction over those offences. 70  or to prosecute for money laundering offences where assets are laundered through financial institutions or properties in England, 73 for complex transnational financial crimes, it is difficult in practice to accumulate evidence sufficient to meet the standard of guilt beyond reasonable doubt usually required to secure a conviction. 74 Enforcement authorities have noted the particular difficulties in obtaining evidence from overseas, 75 and delays, bureaucracy and lack of cooperation frequently bedevil the functioning of mutual legal assistance (MLA) and less formal police agency cooperation processes. 76 MLA problems may apply, of course, to all offences committed abroad, but can be exacerbated in recovering the proceeds of grand corruption because of a PEP's political or institutional influence and allegiances in an Affected State, 77 or because the Affected States' institutions are so impacted by kleptocracy that the institutional capacity no longer exists to facilitate MLA requests. 78 Invocations of state, 79 or diplomatic immunity, 80 although not always successful, can also impede prosecutorial progress. 73 Pursuant to ss 327, 328 and 329 of the POCA. 74 Home Office and HM Treasury, Action Plan for Anti-Money Laundering and Counter-Terrorist Finance (April 2016), at para. 2.32:Ô… in many cases the country in which the offences took place lacks either the will, the capability, or the human rights record that would allow effective cooperation to take place. This can result in assets suspected of being the proceeds of crime overseas remaining in the UK out of the reach of our law enforcement authorities'.Michael Levi has observed that the most commonly prosecuted international money laundering cases are uncomplicated: Assuming a corrupt foreign official is convicted of a crime in the UK, it will be open to enforcement authorities to seek a confiscation order for assets representing the proceeds of that crime from the offender and/or from a third party transferee. 81 Alternatively, if a final judgment has been handed down against an asset-holder in an Affected State, assistance may be sought from English enforcement authorities to recover the proceeds of the relevant offences.
As to civil law options, where the High Court is satisfied on the balance of probabilities that property constitutes the proceeds of crime, it must make a civil recovery order (CRO) in respect of that asset. 82 Civil recovery is an in rem proceeding meaning that formally, the property the subject of proceedings rather than the holder of that property is tainted with criminality. Unlike in rem asset recovery proceedings in the US where observation of formalities extends to naming the relevant asset as a party to proceedings, 83 in English proceedings, the holder of the impugned asset is typically named in the case title as respondent. Two key consequences flow from these facts which are significant to the discussion in this paper.
First, no adjudication is formally made on the guilt or innocence of a respondent to an enforcement authority's application for a CRO. Consequently, criminal proceedings may be subsequently instituted in an Affected State against a respondent in respect of the wrongdoing leading to their possessing the relevant asset without offending non bis in idem principles. The Affected State's prerogative to prosecute the offence is preserved.
Second, the dominant view amongst penal theorists is that punishment for crimes comprises two key elements: public censure for wrongdoing, and the imposition of some kind of hard treatment by way of sanction. 84 Where a State other than an Affected State pursues individuals using civil recovery powers on the basis that they are suspected of holding the proceeds of crime, it meets a censorial objective synonymous with, and more appropriately achieved as part of, criminal punishment. Liz Campbell observes that: Civil recovery in fact places the label of criminal on a person without due process protections… the assets seized are described as the 'proceeds of crime', both in relevant legislation and by the courts. This represents a declaration that encourages the public to believe the owner of the property to be guilty of criminality, broadly speaking. 85 Procedures relied upon in pursuing CROs are formally civil rather than criminal in nature, and so do not impose the other facet of punishment -some form of hard treatment -on respondents. Commentators have, however, identified a number of attributes paradigmatic of criminal matters arising in civil recovery proceedings including, inter alia, a State enforcement authority as a party; the application of investigative powers typically only available for criminal proceedings, a penal objective of crime deterrence (rather than simply restitution or compensation to the wronged party), and the weightier societal condemnation implicit in a criminal conviction. 86 Each of these elements consonant with criminal proceedings is present to some degree in civil recovery processes.
The condemnatory element is heightened in civil recovery proceedings involving PEPs, the scale and impact of publicity in relation to which can be seen as being tantamount to itself being a form of hard treatment. It is clear from the tenor of the UK press's coverage civil recovery proceedings, which frequently refers to PEP-specific UWOs as ÔMcMafia' orders, that it is not necessary for individuals to be convicted or even charged with a crime to attract public opprobrium. The extent of the adverse impact experienced as a result of individuals' identities being publicly tied -however tenuously -to the commission of crimes is something that has been recognised in recent English claims for damages made against media organisations. In those cases, the reputational impact wrought by publication of the fact that named individuals were merely being investigated (and not subsequently charged) by enforcement authorities on suspicion of involvement with serious crimes was found to be sufficiently harmful to allow those individuals succeed in privacy tort actions for damages. 87 85  In this way, publicised civil recovery proceedings can constitute a de facto but not a de jure punitive response to crime, particularly where there is the prospect of a high degree of public interest and media attention in the proceedings. Civil recovery proceedings involving PEPs are, based on the limited data available, significantly more newsworthy -and therefore pack a stronger condemnatory punch -than corresponding proceedings involving non-PEPs. 88 The European Court of Human Rights (ECtHR) to date has disagreed with this characterisation of civil recovery as a punitive or quasi-criminal mechanism, 89 notwithstanding that such proceedings succeed in labelling a respondent as criminal (or, at least, as suspected of benefitting from criminality). 90 States subject to the Court's jurisdiction have seemingly viewed this as an invitation to introduce civil recovery processes without providing for heightened procedural protections closer to those usually applicable only in criminal law cases (including, for example, the prosecutorial requirement to prove guilt beyond reasonable doubt and the presumption of innocence). 91 However, as a matter of practicality and for the reasons discussed, 88 To demonstrate this, two searches were conducted across the three leading UK broadsheet newspapers-The Telegraph, The Times and The Guardian -on Lex-isLibrary's news search function. The first search was against Zamira Hajiyeva, the only PEP to date against whom UWOs have been successfully sustained in Englandfor the period of one year from and inclusive of the date on which Mrs Hajiyeva's name was first made public in an UWO context. A second search was made on the same basis against Mansoor Hussain, the only publicly named non-PEP against whom UWOs have been made at the time of writing. Mrs Hajiyeva was mentioned in a total of 64 hits. Mr Hussain was mentioned in nine. 89 The ECtHR leans heavily on deference towards States' margin of appreciation in designating such measures as Ôcivil' and has cited civil recovery's Ôcompensatory and preventative' purposes while disregarding the censorial impact of civil recovery on respondents in finding that civil recovery is not a criminal law measure. Most recently reaffirmed in Gogitidze and Others v Georgia . 90 There is room for broader discussion on whether the civil / criminal law binary that informs this analysis is now essentially otiose in circumstances where legislatures opt to use Ôhybrid' mechanisms featuring elements of both paradigms to achieve crime control objectives. Recognising the binary's increased irrelevance might form the basis for policy-makers to consider a sui generis model of procedural protection for respondents to hybrid measures. 91 In the UK for example, the POCA was introduced shortly Phillips v UK (ECtHR App no 41087/98, ECHR 5 July 2001), in which the ECtHR opined that Ôcriminal lifestyle' confiscation proceedings under the Drug Trafficking Act 1994 were distinct from the underlying offence, and therefore did not engage protections provided for under Article 6.2 of the European Convention on Human Rights. civil recovery proceedings which are not held in private 92 and the publicity accompanying them encompass a clear punitive aspect, 93 and thus potentially serve to undermine an Affected State's enforcement prerogative to deliver penal consequences. One potential means of addressing this problem is through the use of negotiated responses to asset recovery which, unlike contested civil recovery proceedings, do not involve public court proceedings instituted by enforcement authorities.

IV THE CASE FOR SETTLEMENTS
This Part continues the discussion of advantages to negotiated responses to grand corruption by reference to the three UNCAC objectives in recovering and returning the proceeds of grand corruption identified in Part II, namely: achieving efficiency, observation of due process (or more specifically in the case of negotiated settlements, avoiding due process problems), and effectiveness respectively. 94

Efficiency
The first and most obvious advantage of negotiated responses to grand corruption is that they are relatively efficient when compared to the civil recovery investigations necessary to institute, and the actual hearing of, adversarial court proceedings.
In complex financial crime contexts, there is usually an asymmetry in the information available to enforcement authorities and the information held by alleged offenders. As has been noted in analysis on DPAs, investigating allegations of benefit from financial crime 92 The default position is that civil recovery hearings must be held in public albeit Rule CPR 39.2(c) of the English Courts' Civil Procedure Rules provides that judges must hold a hearing in private where they are inter alia satisfied that a case involves: Ôconfidential information (including information relating to personal financial matters) and publicity would damage that confidentiality'. 93 On the expressive significance of punishment, see: Joel Feinberg, ÔThe Expressive Function of Punishment' (1963) 49 The Monist 397. 94 See supra note 7 and accompanying text.
often requires highly specialised expertise. 95 Exacting investigation into complex matters can involve capabilities which relevant enforcement authorities' may not possess. 96 In settlement scenarios, negotiating enforcement authorities will need to be satisfied as to the veracity of various facts justifying the recovery of property so that any statements of fact released within or accompanying settlements are accurate. 97 Although impossible to establish a benchmark on how much Ôtraditional' civil recovery pursued through the courts typically costs in enforcement authority time and resources relative to the costs involved in agreeing settlements, where asset holders agree to cooperate in investigations, this avoids expending resources involved in seeking various investigative orders including, in an English context, production orders or UWOs, 98 and contesting adversarial civil recovery proceedings. As a matter of pragmatism therefore, respondents' cooperation is often required if a matter is to be successfully and efficiently resolved.
As to why a PEP might opt to voluntarily cooperate in a process which is likely to conclude in the recovery of their property, enforcement authorities can offer a number of incentives with which to persuade elites to enter into negotiations. These include agreements not to pursue proceedings publicly, to agree mutually acceptable settlement agreement language, and/or to anonymise parties' identities and the identities of the settlement assets. In return, enforcement authorities are made privy to the extent of an individual's assets in the jurisdiction and, potentially, incriminating information on professionals who may have facilitated laundering.
PEP willingness to share information may also be explained by reference to work produced by certain writers on law and eco- nomics. 99 Those writers persuasively argue that confidentiality holds an economic value for defendants in civil negotiations (because of inter alia loss of reputation, litigation costs, a perception that a defendant is a Ômark' for other plaintiffs), thereby expanding the upper range of what a plaintiff will sacrifice in order to settle. 100 The prospect of certainty and the implicit or explicit promise from enforcement authorities of no further sanctions or recovery being pursued following the settlement may also be economically valuable to them. For enforcement authorities in anti-corruption contexts, the ability to publicise negotiation outcomes is important. They are keen to show that they are delivering Ôvalue' to their Ôshareholders' (the public), and regard media coverage as a tool of deterrence. 101 The confidentiality / publicity value to each party is therefore at a premium in such negotiations. Enforcement authorities may agree to partial confidentiality (by, for example, publishing limited details, as in the Hussain Settlement 102 ) or to full confidentiality to maximise disclosure and/or recovery. Employing rational choice evaluations, 103 it is conceivable that for some corrupt PEPs, the economic value to them of confidentiality will outweigh the value of their English-based assets, eg where future earnings are contingent on perceptions of their honesty and credibility. Such asset holders can be induced into negotiations and will agree to a full forfeiture of their English assets and disclosure of potentially useful information in exchange for non- 99 101 See: NCA's policy on Civil Financial Investigations and Associated Publicity (available at: https://www.nationalcrimeagency.gov.uk/who-we-are/publications/ 496-nca-civil-financial-investigations-policy-and-associated-publicity/file) at para 5. It provides: ÔThe general principle [around publicising settlement deals] will be of transparency and accordingly we will not normally accede to requests to limit the publicity around settlements.' at para. 3. 102 See notes 147 and 148 infra and accompanying text. 103 Rational choice theory is popular amongst criminal law policymakers in England, who assume that individuals rationally calculate the costs and benefits of engaging in criminal acts to decide whether to commit crimes. See: Jackie Harvey, ÔAsset Recovery: Substantive or Symbolic?' in Colin King and Clive Walker (eds) Dirty Assets: Emerging Issues in the Regulation of Criminal and Terrorist Assets (Ashgate, 2014) 184-7; albeit both Harvey (at 184-5) and Bibos (supra note 8 at 2467) question this assumption's reliability. disclosure of their identities and/or some or all of the settlement terms. By allowing for negotiated settlements rather than public civil recovery proceedings in court, relative confidentiality is commodified as a bargaining chip to obtain that cooperation. 104 Enforcement authorities entering into settlements avoid risking unsuccessful court applications for investigative orders or CROs eventuating and consequently having to pay respondents' costs, 105 thereby potentially diverting resources from other investigations. Successful settlements avoid the lengthy delays a feature of judicial appeals processes. Efficiencies can extend beyond property recovery simpliciter. The asset holders involved in the 1MDB Settlements and the Obiang Settlement variously provided undertakings that they would make bona fide efforts to produce information and documents required to facilitate reasonably expedient sales of the relevant assets and would assist in opposing claims from any third-party claimants, where necessary. 106

Effectiveness
Second, where respondents do not have to engage in public court proceedings which may widely advertise their wrongdoing, the impetus against cooperating with investigations, making full disclosures of assets or reaching settlements is reduced. If it subsequently becomes apparent that an asset holder has been less than forthcoming on, for example, the extent of their assets in the jurisdiction, then public civil recovery proceedings (and the attendant publicity) in respect of those assets are still available to enforcement authorities. It is acknowledged that where settlements are made and their terms published, these are likely to be similarly reported upon in the media and that there will be some degree of censure implicit in that reportage. However, the media coverage afforded to settlement agreements (and indeed, the amount of reportable material generated by 104  settlements) when viewed against reportage of multi-day public civil recovery proceeding hearings is comparatively modest. The punitive aspect of such publicity is mitigated for settling asset-holders. 107108 Third, negotiation processes allow scope for Affected State envoys (whether State representatives or, if appropriate, NGOs or other parties acting in the citizens' interests 109 ), at least theoretically, to be consulted on the negotiation itself and on the fate of recovered assets. StAR has specifically criticised the absence of victims participating in negotiations on, and benefiting from, penalties imposed pursuant to, DPAs. 110 The DOJ's press releases accompanying each of the 1MDB Settlements made reference to the Ôsignificant assistance' provided by the Malaysian authorities in its investigations, 111 but provided no insight into whether those authorities were consulted as part of the negotiation or repatriation processes. 112 Consultation with Affected States is something that may be more feasible in relatively informal negotiation contexts than it would be in either civil recovery proceedings through the Courts or through criminal proceedings because the process is less procedurally rigid.
Fourth, negotiated responses facilitate discretion to save kleptocrats' dependents from destitution by virtue of having to cover expenses including legal costs, sales taxes for realised assets, etc once matters are concluded (there is admittedly an argument, as was successfully made in the Agidi case, 113 that to the extent that legal costs can be covered from a respondent's own assets, these should be used instead). Each of the 1MDB Settlements made provision for a 107 Eg searches made against variations of Malik Riaz Hussain's (the counterparty to the Hussain Settlement) name on the same basis as the searches described in note 88 supra resulted in a total of five hits compared to Mrs Hajiyeva's 64. 108 To varying degrees, depending on the respondents: see the accompanying text to note 118 below. 109  public officials like the minor children who were represented as counterparties to the al Qubaisi Settlement 118 ) will benefit from such statements. Khadem al Qubaisi was prosecuted and convicted for misappropriation offences linked to the 1MDB scandal in the UAE. ÔPrimary' corrupt actors (that is, public officials responsible for allegedly directly instigating the alleged corruption in question, eg Teddy Obiang) will, quite reasonably, benefit from such statements to a lesser degree. In Obiang's case, and in, for example, the case of Jho Low, the proceeds of whose alleged corruption was the subject of one of the 1MDB Settlements and who remains on the run and the subject of an Interpol Red Notice, 119 the public will have strong and wellfounded views on their actual culpability. In those contexts, such statements may serve as a practical means of pre-empting future claims in criminal proceedings in an Affected State's or a Holding State's criminal courts that negotiated responses to corruption are quasi-criminal proceedings capable of violating double jeopardy claims. This will not, however, be effective across the board because of the different ways in which States apply ne bis in idem rules. 120 Where, on the other hand, the basis on which suspicions were raised against a settlement party are not publicised (as in the Hussain Settlement), and it is confirmed by an enforcement authority that an individual has been investigated and not charged, this has the potential to be significant in expressive terms for the respondent in question.
Sixth, realpolitik considerations have operated in the past to impede enforcement authority investigations, even if there was apparently sufficient evidence for those investigations to proceed. The most notorious recent example of this in England was the political pressure brought to bear by the Government leading to the SFO ending its investigation into BAE Systems' alleged bribery of Saudi Arabian 118 See supra note 53. 119 See supra note 55. officials. 121 As investigations into the proceeds of grand corruption implicitly impugn actions undertaken by someone who is or was a senior member of the Affected State's political or administrative establishment, they spotlight corrupt practices in Affected States and are therefore fundamentally more politically challenging than other proceeds of crime investigations.
It is conceivable that there will be circumstances where Holding States will be reluctant to take court action against members of another's country's ruling class to recover the proceeds of grand corruption, not least because it may, justifiably or otherwise, elicit a perception of that Holding State criticising an Affected State's political institutions. This is unsatisfactory. Such prosecutorial considerations result in an unequal application of the law based on contemporary geopolitics instead of being based solely on an enforcement authority's reasonably held suspicion that a respondent is benefiting from the proceeds of crime.
Conversely, it is possible for settlement negotiations to be leveraged by corrupt actors as a means of avoiding criminal liability, as in the case of Aziz Riza, the stepson of the former Malaysian prime minister, who had money laundering charges in Malaysia against him discharged on a basis Ônot amounting to an acquittal' on condition that he returned assets held in the US, 122 as part of the 1MDB Settlements. 123 This apparently politically-driven arrangement plainly misses the point that settlement agreements should be used only where criminal prosecution and confiscation are not possible or likely, that is, as an inferior means of accountability which at least ensures that the corrupt cannot enjoy assets the licit origins of which they cannot establish.
Unfortunately, there is no obvious solution to address such realpolitik problems where they arise, other than for civil society groups and media organisations to call attention to the obvious double standards applied as a means of discouraging future political influence on prosecution decisions. 124 Compared to public civil recovery proceedings, settlements represent a potentially discreet route to 121 For an account of the Al-Yamamah matter, see: Peter Alldridge, 'The U.K. Bribery Act: The Caffeinated Younger Sibling of the FCPA' (2012) 73 Ohio St LJ, 1193-8. 122 See: Richard Paddock, ÔMalaysia Drops Charges Against Movie Producer', New York Times (New York, 15/05/2020), Business p. 6. 123 See supra note 55. 124 See for example the case cited at n 128 below.

Á INE CLANCY
avoiding these diplomatically fraught issues, while ensuring that corrupt PEPs are at least partially held to account. A final corollary advantage unrelated to the UNCAC's objectives is the scope for Holding States to burnish their soft power credentials internationally by embracing negotiated responses. The US Secretaries of State and the Treasury recently issued a statement lauding the UK for imposing sanctions against inter alios Teddy Obiang pursuant to its Global Anti-Corruption Sanctions regime. 125 Although important not to overstate the (in any event, unquantifiable) value of such actions on the UK's part, they certainly do not harm its position when seeking to demonstrate its shared values with the US while, for example, seeking to expedite a post-Brexit trade agreement between the countries. 126 Successful asset recovery and repatriation processes are concrete examples of anti-corruption activities which advertise a State's commitment to particular values. Settlements offer one comparatively straightforward means of achieving this objective.

V DUE PROCESS RESERVATIONS
Turning to the disadvantages of settlement processes, what of the elements of due process that are sacrificed in service of efficiency and effectiveness gains achieved by settlements? Is the threat of prospectively expensive and aspersive court proceedings not essentially a means of coercing PEPs into handing over assets, regardless of those assets' provenance, to avoid the stigma of a public proceeding? What is the appropriate role of enforcement authorities in recovery settlements? And how can the public evaluate the performance of this role when negotiations take place in private? There has been no public discourse on these questions in the UK, and they raise concerns as to the accountability of enforcement authorities in negotiation processes, and to the transparency of those processes more generally. These intertwined considerations will now be discussed.

Accountability
StAR observes, writing in the context of DPAs, that negotiated settlements are subject to Ôinadequate or no judicial supervision'. 127 This criticism speaks to the legitimacy of such arrangements, because it raises questions on whose authority enforcement authorities are acting under, and whose interests they are required to uphold, when entering into negotiations or in finalising settlements. Given civil recovery's Ôcivil' character in England, enforcement authorities can settle proceedings in the same way that it is possible to settle any other civil dispute -behind closed doors, without having to resort to the courts, and in a completely ad hoc manner. 128 It is not clear however why enforcement authorities are considered the most appropriate counterparty to those agreements; nor is it clear why and whether they should be regarded as the parties best-placed to represent the interests of Affected States and/or Holding States in negotiations.
As mentioned in Part III, judicially approved civil recovery settlements are possible pursuant to s. 276 of the POCA, which contemplates the High Court making consent orders staying civil recovery proceedings Ôon terms agreed by the parties for the disposal of the proceedings', 129 while having discretion to add Ôany further provision which the court thinks appropriate.' 130 It is difficult to see 127 Oduor et al (supra, note 95), p. 48. Although StAR makes this observation about foreign bribery settlements globally, it singles out as an example the OECD's criticism of the UK's tendency to rely on civil recovery settlements with a Ôlow level of information on settlements made publicly available' rather than, for example, criminal plea agreements, and the transparency and accountability problems implicit in this approach. 128 It is possible that third parties (eg NGOs or Affected States unhappy with the terms of a settlement) might seek judicial review of the exercise of an enforcement authority's discretion, but as Lord Bingham observed in R (on the application of much evidence of its use in practice, 131 albeit cases making reference to cash forfeiture settlements or civil recovery settlements occasionally arise before the courts. 132 Section 276 appears to contemplate judicial involvement only at the very final stage of the process. At the core of the accountability problem around settlement agreements in England is the fact that there is little publicly available guidance (to the extent it exists at all) for enforcement authorities acting in negotiating settlements either within or outside a s. 276 process. 133 On the evidence of the limited information available from the Hussain Settlement, 134 enforcement authorities appear able generally to finalise settlements without court approval. Given the paucity of published principles or standards to be met by negotiated settlements, when English enforcement authorities enter into settlements at all, they must be made on a relatively ad hoc basis, leaving the public with very little insight into the considerations taken into account in agreeing settlement terms. This lack of clarity has adverse implications for a component of legitimacy that criminologists describe as the normative validity of the negotiation; that is, Ôthe justifiability of established rules and the enforcing of these by responsible anti-corruption authorities that meet societally accepted standards of rightful authorization…' 135 131 A case law search across all jurisdictions of the terms Ôsection 276' and Ôs 276' on Westlaw UK on 26 January 2022 yielded no cases referring to consent orders actually made. This is not to say that consent orders are never made, but if they are, they are apparently not published or reported upon, and are rarely, if ever, the subject of subsequent litigation. A FOI request made to the Home Office on the number of consent orders made to date (with PEPs and others) and the value of assets recovered pursuant to them resulted in the Home Office advising that it does not hold this information (FOI 65430 of 20 August 2021). 132  A relevant authority may agree to accept a reduced sum in satisfaction of a civil recovery claim if satisfied that: • the sum is reasonable, having regard to all relevant circumstances including the chances of recovering the full amount claimed and the time and public funds likely to be expended in attempting to do so; and • accepting the reduced sum would not damage public confidence. 134 See notes 147 and 148 infra and accompanying text. Where few or no formal rules are evident, the normative validity of a process simply cannot be determined.
On a cynical view, the primary motivations of enforcement authorities as directors of negotiation processes are more likely to be inherently transactional than a court's. In the context of criminal proceedings, enforcement authorities are required to fulfil a Ôminister of justice' role, thereby compelling them to act fairly in the course of investigations and processes. 136 Negotiations in a civil sphere are of a different complexion: negotiators usually act on unreservedly partisan bases. They may be pursuing reasonably presentable outcomes or using the negotiation process to obtain information to facilitate future domestic prosecutions as much or more than they may wish to maximise asset recovery for Affected States. Entrusting agreement of settlements to enforcement authorities thus seems contextually inconsistent with their broader functions and risks fomenting what plea bargain critics fear: Ôa process based on a culture of extortionate relationships which extract crude cost/benefit actuarialism from everyone involved.' 137 In the federal US jurisdiction, courts appear to be comparatively involved in settlements throughout the process in grand corruption contexts. The Department of Justice (the ''DoJ'') has published detailed and publicly available enforcement guidance for prosecutors on civil forfeiture settlements. 138 Settlements are typically made following the institution of civil forfeiture proceedings, whereby enforcement authorities (typically the DoJ's Money Laundering and Asset Recovery Unit in the context of recovering the proceeds of grand corruption) file ÔComplaints for Forfeiture In Rem' in an appropriate District Court. These documents set out the bases on which enforcement authorities believe that the assets the subject of the relevant forfeiture actions were illicitly acquired, and typically name the alleged offenders. 139 139 See, for example, US v ÔThe Wolf of Wall Street Motion Picture', Case No CV 16-16-5362 (CD Cal 20 July 2016), one of the forfeiture actions resolved as part of the Riza Settlement. In criminal proceedings, federal enforcement agencies also sometimes rely on so-called Ôspeaking indictments' providing detailed particulars of the alleged crimes and/or alleged criminals, and demonstrating the thoroughness of on a government website to alert any parties who may have an interest on the property, 140 and is served on the asset holders. 141 It is a requirement of Ôcritical principle' that civil forfeiture settlements Ôshould not be used to gain an advantage in a criminal case,' 142 although it is hard to see how this requirement is upheld in practice because any information-sharing presumably takes place on a confidential basis. Before a settlement is finalised, a draft consent judgment of forfeitures taking the form of the proposed settlement agreement is submitted to the presiding court, which then typically approves those terms.
Notwithstanding the more structured nature of the US process, on the evidence of the 1MDB Settlements and the Obiang Settlement, it still suffers from some fundamental accountability problems. It appears there is no general obligation upon enforcement authorities to rationalise the bases on which decisions were made throughout the process. This in turn stymies first principles applicable to dealing with the proceeds of grand corruption or with asset-holders from emerging. This is a missed opportunity not only to ensure enforcement authority accountability, but also to reap communicative benefits and legal certainty around what allegedly corrupt PEPs should expect if they are found to hold assets of dubious provenance. Moreover, it raises the spectre of arbitrary settlements in the service of Ôwins'. This is a high price to pay for relative efficiency. Nevertheless, the relatively high levels of court oversight and published guidance allowing for appraisals of normative validity render the US process superior to its English counterpart in terms of enforcement authority accountability.

Transparency
Criminal proceedings are typically held in public because of their inherent communicative value, 143  powers against individuals in open, accountable and non-oppressive ways. In the civil sphere, by contrast, we are told that recourse to the courts for civil disputes should be a last resort, relied upon only if the parties are unable to resolve their dispute by non-adversarial means. This is because public proceedings can compromise the privacy of the parties and exhaust their resources, resulting in a single outright Ôwinner'. There is thus a strong public policy justification for peaceful, mutually agreed settlements. 144 To the extent that civil court proceedings are necessary, litigants are entitled in principle to a public hearing because Ôthis protects them against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained'. 145 Part III argued that the condemnatory impact of public civil recovery proceedings and the accompanying media attention is inconsistent with the in rem character of civil recovery, and that the impact is intensified where PEPs are concerned. Nevertheless, it would be a mistake to adhere too faithfully to the idea that civilly recovering the proceeds of grand corruption should be treated in the same way as any other privately-settled civil dispute. Unlike the vast majority of civil matters, the outcomes of such settlements directly concern public, national and international interests. In the absence of any criminal proceedings ensuing against a suspected PEP offender in an Affected State, settlements involve an important expressive component because they communicate that the relevant PEP cannot act with complete impunity. Settlement processes dealing with the proceeds of grand corruption are therefore required to achieve outcomes which are in tension with each other. Settlements must avoid overtly impugning the characters of asset-holders. At the same time, they must assure interested parties of the adverse consequences of attempting to conceal the proceeds of grand corruption abroad and ensure that sufficient information is available to evaluate the performance of Holding State authorities in upholding this value.
The OECD has criticised the UK's failures to meet transparency standards in its anti-bribery regime. 146  of its civil recovery settlement agreement process. There is vanishingly little information publicly available on what asset recovery settlement agreements English authorities have entered. Where settlements are made to recover assets, the agreements are not regarded as public documents, and are therefore not published. In the Hussain Settlement, for example, the NCA released a short statement confirming the settlement and, unusually, noting that the settlement concerned Ôa civil matter, and does not represent a finding of guilt.' 147 It subsequently removed the statement from its website. Beyond these facts, no details, including the terms of the settlement agreement and the reason for the investigation against Mr Hussain, were made publicly available by the NCA. The settlement appears not to have had the input of the courts, and it is not known whether the settlement assets comprised all of Mr Hussain's assets held in England. Most of the assets in question have apparently since been returned to Pakistan. 148 Based on the lack of publicly available information available around the Hussain Settlement, all that it is possible to conclude is that English enforcement authorities are open in principle to conducting civil recovery negotiations and to agreeing to keep the terms confidential.
Confidentiality assurances are of practical use to enforcement authorities as a bargaining tool, as discussed in Part IV. Additionally, there may be operational reasons why an exhaustive publication of terms will not always be appropriate. The respondent may have provided information incriminating other kleptocrats or evidence relating to those who facilitated the laundering in exchange for an agreement to keep the matter out of the courts. Nevertheless, confidentiality or redaction clauses in settlement agreements should be approached with extreme caution and on an exceptional basis, given the legitimacy implications. Some redaction may be agreed, but confidentiality terms should not preclude at a minimum publication of some details on the assets recovered, whether a respondent was 147 The statement released at the time is no longer on the NCA's website. The above quote is taken from: Kate Beioley, ÔPakistan Family Hands over £190m in ÔDirty Money' Probe' Financial Times (London, 03/12/2019). It is reasonable to assume that Mr Hussain required this public confirmation from the NCA as a condition of the settlement. 148 NCA, Annual Report and Accounts 2019-20, p. 24. Available at: https://www. nationalcrimeagency.gov.uk/who-we-are/publications/467-national-crime-agency-an nual-report-and-accounts-2019-20/file . permitted to keep any assets (and on what grounds) and some overview of the relevant facts.
Publication allows civil society groups to consider whether a settlement conforms with, for example, the principles published by Global Forum on Asset Recovery. 149 Where a published agreement recites full details of assets recovered and assets investigated but not recovered, it allows civil society, journalists and others to audit the veracity of the disclosures made by asset holders, and to track the repatriation of those assets by enforcement authorities to Affected States, thereby keeping all parties Ôhonest'. This is consistent with States' obligations under the UNCAC, which requires States Parties to Ôtake appropriate measures…to promote the active participation' of such groups by inter alia Ôenhancing the transparency of and promoting the contribution of the public to decision-making processes […and…] ensuring that the public has effective access to information.' 150 The US federal approach to publicising the terms of settlements is more transparent. Typically, where a US enforcement authority reaches a grand corruption proceeds settlement, the DoJ releases a detailed press release on its website, and publishes a copy of the settlement agreement filed with the District Court as a public document. The settlement agreement will include details of, inter alia, the relevant assets, the beneficial and legal holders of those assets, a confirmation that no criminal liability has been admitted by any party, an acknowledgement that the asset-holders will cooperate in the efficient disposition of the property, and the US-based assets, if any, in which the DoJ has waived a potential interest. 151 As such, it is appropriate that settlement agreements are (i) subject to judicial approval; and (ii) so far as is possible, published for public scrutiny (albeit it is acknowledged that this may need to sometimes be on a redacted or anonymised basis). To the extent that settlements (including any additional terms imposed by the courts as a condition of approving the agreements) are made publicly available, there is 149 Principle 9 of which, for example, precludes Ôbenefit to offenders' in the disposition of the proceeds of corruption. See opportunity for a body of precedents to develop, and to ensure that cases are treated in a reasonably consistent manner so that a base level of certainty and equality of approach evolves.

VI FURTHER RESERVATIONS
This Part concerns negotiated resolutions' seeming ineffectiveness at restoring assets to Affected States by highlighting the invisibility of Affected States in settlement negotiations. It also examines the problem of perceived differential treatment for PEPs wrought by grand corruption proceeds settlements.

Effectiveness
The authors of the StAR report remark upon the absence of the victim in the settlement in DPA contexts. 152 There is similarly little evidence of active Affected State involvement in settlement negotiations with individuals. As discussed in the previous Part, settlement processes are sufficiently flexible to allow for consultation with Affected States or their representatives. One reason why Holding States may be reluctant to engage with Affected State envoys (whether State officials or civil society groups) during the negotiation process is that determining appropriate trustees for recovered proceeds may be diplomatically fraught, particularly where there are concerns around restoring assets to the very corrupt regimes that misappropriated them in the first place.
The past decade has, however, provided a number of both successful and unsuccessful models in involving Affected States in the asset restoration process, 153  time. These include the establishment of the BOTA Foundation, which was responsible for administering the proceeds of corruption in Kazakhstan, 154 and a recent Memorandum of Understanding signed by the UK's Home Office and Moldova, pursuant to which £456,068 seized from the London-based student son of the former Moldovan Prime Minister is to be used for the benefit of Moldovans with severe disabilities. 155 Another reason for failure to involve Affected States is that Holding States, having put the work and resources into recovering assets, may wish to retain the fruits of their efforts. As mentioned in Part II, there is nothing in the UNCAC requiring Holding States to return assets to Affected States where they have unilaterally taken action to seize in those assets their own territories. Enforcement authorities in England have gestured towards the importance of repatriation, but in practice go no further than the UNCAC requirements by assuring the public that Ôcompensation is considered in every case' 156 of recovery from overseas economic crimes. 157 The proprietary rights of Holding States to sums misappropriated from Affected States are not at all clear. The logical conclusion for Holding States making claims to norm entrepreneurship or moral leadership by warning of the deleterious effects of corruption on Affected States' development 158 would be to make a normative push towards mandatory restoration of recovered assets for the benefit of the populaces of Affected States. This is yet to happen in practice.
A corresponding problem -insufficient recovery -can also arise in grand corruption settlement contexts and raises questions as to whether enforcement authorities have, or should have, authority to allow concessions to asset holders in exchange for cooperation. In 2019 for example, Swiss parliamentarians reacted with dismay to the news that the Swiss Attorney General's office had agreed to unfreeze a superyacht owned by Teddy Obiang in exchange for the sale proceeds of 25 luxury cars and Obiang's payment of the Swiss government's legal fees. 159 Similarly, in Obiang's US settlement, the DoJ's decision to drop its case against Obiang's private jet and some valuable memorabilia in exchange for his cooperation in the negotiation was criticised. 160 Assuming Holding States are (morally, if not legally) bound to retrieve misappropriated assets on behalf of Affected States who hold proprietary interests in those assets, it is problematic that those Holding States can and do allow alleged offenders to bargain for and/or take the benefit of some of those misbegotten gains.

Equality Before the Law
A final concern lies around the risk of a public perception that because of their elite status, PEPs benefit from differential treatment procedurally because they are allowed negotiation privileges in asset recovery contexts that are simply not afforded to non-PEP members of the population. 161162 Such negotiation processes thus could be viewed as conflicting with values of equality in the administration of justice. There may however be pragmatic justifications for special rules to PEPs apply in many instances -some examples of the difficulties involved in taking action against foreign PEPs are outlined in Part 3. It may be challenging consequently for enforcement authorities to establish to a court that property constitutes the proceeds of 159 The settlement failed to abide by the GFAR principles (supra, note 149), despite Swiss state representatives being instrumental in their development. See Corruption and Human Rights Initiative, ÔOpen Letter: Switzerland's Appalling Decision to Return Seized $100 million Yacht to Known Kleptocrat', March 2019. Available at: https://corruptionandhumanrights.org/publications/open-letter-swit zerlands-appalling-decision-to-return-seized-100-million-yacht-to-known-kleptocrat/ . 160 See: Davis, supra note 41, p. 329. 161 Commentators note that such perceptions, particularly where enforcement actions against elites are involved, are often informed by the public's preconceptions of and/or pre-existing prejudices towards a particular cohort-see: Barkow and George (supra note 139). 162 See similar criticisms made by King and Lord (supra, note 20) in the context of the procedural responses to crimes committed by white collar criminals (at pp. 2-3). corruption on the balance of the probabilities. The best response to kleptocracy, and one that all enforcement authorities should aspire to in principal and proceed on the basis of in the first instance in practice is to support as far as possible the obtaining of a criminal conviction with accompanying confiscation measures. 163 Should it become apparent that achieving this is not realistic in particular cases, and to ensure that assets are recovered nevertheless, settlements may offer an imperfect but practical alternative.
VII SOME CONCLUSIONS Historically, shifts in anti-corruption approaches have been precipitated by dramatic events, for example the introduction of the UN-CAC following the post-Cold War Ôcorruption eruption' of the late 1990's, 164 or the proliferation of money laundering rules focusing on terrorist financing following the 2001 attacks on the World Trade Centre in New York. 165 It remains to be seen whether the recent anticorruption political momentum identified in the introduction heralds the arrival of another anti-corruption Ômoment.' A number of themes on more effective, efficient and legitimate forms of negotiated settlements processes have emerged for consideration in the course of this paper. An ideal process would allow enforcement authorities to acknowledge formally that no adjudication or finding of guilt or innocence or admission of liability is being made, and would include no allusions to suspected predicate offences. This would ensure a clear delimitation of a Holding State's noncriminal jurisdiction and avoid uncertainty around ne bis in idem issues should an Affected State subsequently opt to prosecute. It also has the potential to mediate messaging around the fact no findings of guilt are involved, thereby mitigating the collateral aspersive consequences inherent in respondents' experiences in asset recovery proceedings. Whilst some public scepticism around the guilt or otherwise of respondents may remain, the fact that enforcement authorities emphasise no finding of criminal guilt is nevertheless potentially 163 This principle is reflected in section 2 of the POCA, which notes: ''…the reduction of crime is in general best secured by means of criminal investigations and criminal proceedings.'' 164 See Ivory, supra note 14. 165 Eg the Financial Action Task Force, the international standard-setter on money laundering procedures, published its FATF IX Special Recommendations on Terrorist Financing (October 2001). expressively potent, particularly where those statements are made in respect of officials' family members or associates found holding the proceeds of suspected corruption.
It is preferable that settlements reached become a matter of public record and identify the relevant public officials, the assets recovered, the key terms agreed and memorialise the fact that the settlement does not constitute a determination of criminal wrongdoing. Representatives of the Affected States' citizenry would be involved in the negotiation and/or conversations on the application of proceeds. Enforcement authorities in Holding States would publish data on sums repatriated, the use to which such funds are put, and the jurisdictions to which they are returned, thereby bolstering the expressive impact of asset recovery and allowing analysts and scholars to evaluate quantitively Holding States' anti-corruption endeavours.
Above all, enforcement authorities in Holding States would proactively and vigorously pursue the proceeds of grand corruption. Until Ômaterial salient risks' that the proceeds of grand corruption will be seized through well-resourced and robust enforcement strategies exist, 166 there is no reason to expect improvements in the amount of Ôdirty money' feared to be laundered annually. Negotiated settlements are worthy of wider consideration as one potentially effective and efficient means of addressing the problem. They are not a panacea, not least because they remain disquieting from a due process perspective. Should settlements go Ômainstream', it is imperative that a procedural architecture is developed to clarify conceptions of the roles of enforcement authorities, courts, PEP counterparties and Affected State representatives. Should Holding States fail to rationalise properly the processes surrounding and outcomes of negotiations, the arbitrary and unjust decision-making characteristic of kleptocracies will join the proceeds of grand corruption as an unwelcome import to Holding States.

OPEN ACCESS
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