Gauvain and Marleix’ New French Anti-corruption Bill Proposal - A Solution for Bolstering Interviewee Rights Within Internal Investigations Transatlantically?

Lucy Jeffries*

This Note assesses whether the provisions in the Gauvain Bill Proposal could be a solution to two issues related to interviewee rights plaguing the United States’ current anti-corruption framework—namely “watered-down Upjohn warnings” and the Connolly case’s concern of “outsourcing” government- compelled testimony. The United States has been a leader in anti-corruption efforts due to its reliance on negotiated settlements, a framework in which internal investigations are key tools. This Note will first explain France’s historical lag in the fight against corruption, as well as the pressures that pushed it to adopt a U.S.- style approach. Next, it will outline the two issues mentioned above which are present in the United States and explain the relevance of enhanced interviewee rights within anti-corruption efforts. Finally, it will consider Article 7 of the Gauvain Bill Proposal, finding that while it bolsters interviewee rights by essentially codifying a clear Upjohn warning standard and reducing conflicts of interest, it is only a partial solution to combat corruption. The Gauvain Bill Proposal establishes a number of rights for interviewees; however, these only apply to internal investigations which occur simultaneously with criminal investigations. Additionally, while the proposed bill would create an independent ad hoc committee designed to lead the internal investigation on behalf of the corporation and diminish any potential conflicts of interest should corporate executives be incriminated, it remains unclear whether this would in fact clarify the scope of representation for interviewees. Finally, the Gauvain proposals codify a right to silence which at first glance would seem to address Connolly issues. Paired with the need for close government cooperation, the proposal’s failure to create guarantees against retaliation and the inference of guilt contribute to the likelihood of government- compelled testimony.

* J.D. Columbia Law School 2024. I would like to thank my advisor, Professor Frederick T. Davis, for his insights, his efforts to connect me with relevant French practitioners, and his invaluable time and feedback. I am also grateful to Nathalie Roret and Didier Rebut for their input. Additionally, thank you to the editorial staff at the Columbia Journal of Transnational Law for their thoroughness and numerous rounds of editing. Finally, thank you to my family for their support throughout this process, and to Matteo for kindly reading passages repeatedly for clarity. All errors are my own.