Corporate Criminal Liability and Negotiated Justice in Italy: Something New under the Sun?

Settlements, to be intended as extra-judicial forms of resolution of corporate crime cases, are rapidly spreading worldwide, as shown by the legislative measures recently adopted in the United Kingdom and France and by the growing attention of the OECD. Initially developed in the USA, these agreements allow corporations to avoid the adverse consequences of criminal proceedings in exchange for the adoption of measures such as compliance programs or external monitors. In Italy, albeit not formally disciplined by the law, we can observe the raise of elements of negotiation in the enforcement against corporate crime. This is happening in reference both to the existing pre-trial diversion mechanism ruled by the law and to new informal settlements developed in practice. More than a direct influence of the American experience, the phenomenon is considered to be a consequence of the hybrid nature of the Italian system – inspired by the American approach based on the compliance paradigm – and of the subsequent critical features emerged in practice. The raise of similar ‘informal’ negotiated justice deserves attention, since it occurs in an unregulated context, where the discretionary power of public prosecutors easily expands.