Legal professional privilege - a review of recent decisions
Following several recent decisions, the assertion of privilege in the context of corporate criminal investigations in England and Wales has been significantly restricted. Subject to the upcoming Court of Appeal decision in SFO v ENRC, this looks set to continue. One recent decision raised a conflict of laws point as to which territory's law should apply on the issue of privilege - which will be of particular interest to those involved in discussions around this topic at the recent IBA Transnational Crime Conference in Krakow. This article seeks to provide a synopsis of these decisions with some key observations along the way.
Reflections on the UK Bribery Act - seven years on
The UK Bribery Act came into force on 1 July 2011 and updated the law on bribery, which had remained largely untouched for over a century, putting in place (arguably) some of the toughest anti-bribery legislation in the world. It initially raised serious concerns for businesses operating in the UK and internationally - some of which considered that it bordered on imposing anti-competitive measures. Having has now been in place for seven years and this article considers its impact and its future treatment in light of its upcoming review by the House of Lords later this year.
The first step towards implementing DPAs in France
After its establishment and its implementation by Sapin II Law, the first French DPAs have been signed and show how France is handling the modification of its legal framework towards negotiated agreements. These first examples highlight the fact that although this new tool is a very 'hot' item, the French version suffers from some uncertainties. This important development, however, marks a shift in the way the French prosecuting authorities will handle corruption cases and encourages legal entities to establish global strategic plans to resolve potential misconducts.
Paved with good intentions - Switzerland's new Act on illicit assets recovery
Elaborated after the Arab Spring, the new Swiss Foreign Illicit Assets Act brings various innovations aiming to improve the efficiency of the asset recovery mechanism of Switzerland in relation to foreign politically exposed persons. Measures to support the country of origin complement provisions on the freezing, the confiscation and the restitution of assets. However, the jurisdictional protection is deficient and some of the new tools, designed to give maximum flexibility to political authorities, introduce distortions to fundamental principles of the rule of law, which might in turn represent high risks for the protection of the individuals.
Cryptocurrency exchanger - the fifth anti-money-laundering directive and the Italian regulation
The fifth anti-money laundering directive has introduced two businesses, related to the cryptocurrencies world, into the list of the entities obliged to apply the Directive: (1) the providers engaged in exchange services between virtual currencies and fiat currencies; (2) the custodian wallet providers. Therefore, cryptocurrency exchangers and wallet providers will be obliged to adopt all the measures prescribed by the Directive itself. It is worth noting that Italy, implementing the fourth anti-money-laundering directive, had already introduced the virtual currency exchangers in the list of the obliged entities.
The Higher Anti-Corruption Court in Ukraine - to be or not to be?
The long-awaited Law of Ukraine no 2447-19 establishing the Higher Anti-Corruption Court was one of the core requirements of the International Monetary Fund, adopted on 7 June 2018 and made public on 14 June following the President's signature. Such measure seemed to be the most anticipated for fighting corruption in the country. Among the core features of the Court are the participation of experts appointed by international organisations in the judge selection process; clearly defined jurisdiction designed to enhance the productivity of investigation bodies concerned; and two instances for consideration of cases.
Mid-year FCPA enforcement update
Enforcement of the US Foreign Corrupt Practices Act was relatively consistent during the first half of 2018, with three individual enforcement actions and 12 corporate enforcement actions announced during the period. The Department of Justice (DOJ) also enacted important policy changes at the end of 2017 and in May 2018 which offer the possibility of reduced penalties for companies that voluntarily self-disclose FCPA-related misconduct and encourage coordination among DOJ components and other agencies. It remains an open question whether the level of enforcement announcements truly reflects a particular posture by the DOJ and the Securities and Exchange Commission, with some statistics suggesting a more nuanced picture.
DOJ issues new policy against duplicative fines and penalties for corporate misconduct
Under the DOJ's new internal policy, a company could avoid unnecessary or duplicative fines, penalties and forfeitures against the same company for the same misconduct in criminal and civil investigations involving multiple enforcement agencies at the state, federal and local law enforcement levels. The new policy recognises the potential unfairness of overlapping civil and criminal penalties from regulators in various jurisdictions, as the new policy discourages 'piling on' by instructing DOJ components to coordinate with one another and with other enforcement agencies in imposing penalties on a company for the same misconduct.
Key developments in international investigations impacting executives
The first half of 2018 saw several significant developments that impact corporate executives involved in global investigations. This article summarises these key events, including charges by the DOJ against Volkswagen's former CEO in the global emissions scandal; post-trial activity in the FIFA corruption cases; and charges and guilty pleas in Foreign Corrupt Practices Act and export control investigations. It also discusses important new legislation and policy initiatives affecting global investigations, including passage of the Clarifying Lawful Overseas Use of Data Act affirming the government's ability to subpoena data stored abroad.
Brazilian baby-steps towards whistleblowers' protection
In the context of Brazil's latest corruption scandals and the huge police investigations that succeeded them, especially Operation Car Wash, several themes that had not yet received much attention from our legislators have now officially shown up on the radar. Whistleblowers' protection, subject of Federal Law No 13,608, enacted on 11 January 2018, is one of them. Such legislation contemplates fighting mechanisms against the new forms of criminalisation, which has been verified in the last few years in Brazil. The country is now facing sophisticated and high-level forms of corruption and organised crime, making the old apparatus obsolete and inefficient to combat illegal activities.
Criminal corporate liability is coming to Argentina: a turning point?
In the last 20 years, Argentina ratified three international conventions intended for anti-corruption which has shown Argentina's willingness to combat crimes committed by public officials in public service contracts. This highlights the importance of law No 27.401, which establishes criminal responsibility for corporations that comply with the international standards adopted by Argentina. The implementation of the law will substantially change criminal and procedural law practices in the country. This juridical transformation will not be easy and the effects of it will not be seen in the short term.
The end of the Dubai sentence?
The fallout from the 2008 financial crisis is still being felt by many who left the UAE in a hurry. Since then, the UAE has prosecuted those accused of having unpaid debts associated with the presentation of post-dated cheques. INTERPOL has routinely issued red notices for those who failed to honour a cheque, resulting in individuals being arrested and detained all over the world. However, this unsatisfactory situation is now finally changing. In December 2017, new rules came into effect in Dubai which re-categorised as a misdemeanour, the offence of uttering an unfunded cheque to the value of AED 200,000 (approximately £40,000).