Deferred Prosecution Agreements: a questionable probative value

Deferred prosecution agreements (DPAs) or similar models have developed very significantly over the last 10 years in various jurisdictions. As the practice of DPAs increases, prosecution authorities may also be tempted to use the statements of facts under these DPAs in subsequent proceedings against third parties. This may be the opportunity to reconsider the probative value of such facts, especially whenever their content is not subject to any actual judicial scrutiny.

In their contribution to the french edition of the International Review of Compliance and Business Ethics, Grégoire Mangeat and Fanny Margairaz share their insights about DPAs. While anchored in Swiss law, they raise questions and offer principles that can contribute to the debate around DPAs in other jurisdictions. They also highlight key implications of DPAs for companies that are often seeing such agreements as a risk mitigation opportunity.

“One should not lose sight of the fact that when a company considers collaborating with justice in order to get such a deal, it does not do so thinking purely in terms of legal defence or solely in the light of the law. It does so looking at the deal through various lenses, mostly of economic nature. Companies want to clarify their situation as quickly as possible and need to evaluate the costs of a procedure in terms of time, financial or reputation costs. They may want to protect their authorization to operate in a specific market, or try to mitigate stock price fluctuations.”

(Grégoire Mangeat)

This publication can be ordered and downloaded on the publisher’s website through the link below.

Contents

1. Introduction
2. L’exploitabilité des DPAs
3. La valeur probante des DPAs
4. Critique
5. Conclusion

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About the Authors

Grégoire Mangeat

Grégoire Mangeat is one of the founders of MANGEAT and Former Chairman of the Geneva Bar Association (2016-2018). He is recommended by Legal 500 and a ranked lawyer by Chambers and Partners.

His main practice areas are Litigation, Arbitration and White Collar Crime and Investigations. He is a member of the European Criminal Bar Association (ECBA) and a member of the European Fraud and Compliance Lawyers (ECFL).

Learn more about Grégoire

Fanny Margairaz

Fanny Margairaz is a partner at MANGEAT. She has experience in a wide range of contentious matters, with a strong focus on white-collar criminal proceedings, asset tracing, and legal and administrative assistance (criminal and financial matters).

She holds a master’s degree in advanced studies in economic crime investigation and is a member of the Human Rights Commission of the Geneva Bar Association (since 2011), as well as the Women’s White Collar Defense Association (WWCDA).

Learn more about Fanny