Programme list

This session will look at: • The impact on criminal defence work and on cross-border investigations of European Regulation 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, also in the light of the EU Court of Justice’s jurisprudence (especially the decisions on ‘data retention’) • The relation between data privacy, criminal defence work and banking secrecy, with particular regard to a bank’s position in respect of clients’ security and judicial authority’s requests • Criminal law implications in cross-border investigations with regard to the processing and circulating of personal data • Limits on and problematic issues in data collection for criminal lawyers: processing of personal data and its use in criminal proceedings • Analysis of actual case-law

This panel will discuss the different legal and practical approaches to these questions. Topics will include: • The practical and ethical implications of recent scientific findings associating certain genes with violent crime • The workings of traditional diminished capacity defences (including, cross-jurisdictional issues in cases involving extradition) • The realities of asserting a successful lack of capacity defence • Attitudes toward alcohol and drug induced states in diminished capacity cases • Socially constructed diminished capacity defences (eg, the recent affluenza case in the US)

This panel will discuss the different jurisprudential and practical approaches to conducting both pre and post charge defence investigations in the jurisdictions named above. It will explore the extent to which the laws of the various jurisdictions expressly or implicitly contemplate such investigations, whether and how such investigations are actually conducted in those jurisdictions and how the fruits of the investigation can be employed pre charge and at trial. The panel will also address issues relating to the retention of third parties such as investigators and forensic accountants to assist lawyers in their fact finding, as well as the legal issues implicated by those retentions, including privilege and ethical issues. Finally, the panel will address the strategic and tactical considerations in using facts developed in the course of a defence investigation, both in attempting to persuade prosecutors not to bring charges and the use of such facts at trial.

White collar fraud practice increasingly involves information sharing between investigators and regulators, pressure on the corporate to self-report and cross-border information sharing. The panel will consider whether the right to silence is at risk in a world where everyone else starts talking to each other.

Part one: Sanctions and trade embargoes With the increased use of sanctions and trade embargoes as foreign policy tools, the first part of the session will see the panel discuss a number of sanctions issues including the growing trend of sanctions across the globe, their increasing complexity, and changes in enforcement trends and asset freezing. The panel will consider how best to respond to these developments, including managing sanctions risk and dealing with competing sanctions regimes. Part two: A day in the life of a shipping container The second part of the session will be a practical compliance example as the panel follows a day in the life of a shipping container, discussing a cross-section of issues that arise in the context of the international trade in goods. Firstly, with the increased use of sanctions and trade embargoes as foreign policy tools, this session will look at how best to navigate complex sanctions issues prior to shipping, including practical solutions of how to detect and prevent these issues, such as the use of due diligence programmes. The panel will then explore criminal issues that may arise on the ground as the container crosses borders, with a particular focus on bribery, corruption and some of the more nuanced issues, such as facilitation payments. Finally, with large trade flows, which obscure individual transactions, and often the use of multiple foreign exchange transactions, international trade can provide a lucrative playground for money laundering. The panel will turn its attention to issues of money laundering which could arise on payment for the container’s goods and how best to protect from them.

This session will look into new trends and developments in crossborder cooperation. Law enforcement agencies and regulators around the world are improving their cooperation. There are cases where one agency will defer to the other and one will have primacy. There are other cases where the enforcement authorities view themselves as having equal interest in the resolution and will work in parallel, sometimes divided up the work geographically. There may be situations where it is simply unknown who the leader is, and who will ultimately be responsible for the resolution, meaning that different national agencies will pursue their investigations until they have reached a decision. These different scenarios and competing interests in cross-border cooperation are significant factors of uncertainty for companies and individuals facing investigations in more than one jurisdiction. Their lawyers are expected to understand what is going on in the background and navigate their client in the right direction – in terms of producing documents and witnesses and having to formulate responses to different agencies pursuing different agenda and/or priorities. Lawyers also have to consider differences in legislation, for instance how corporate and individual liability is established in different jurisdictions. Some tools for the resolution of largescale investigations, such as DPAs are not be available in all jurisdictions concerned. Thus, a comprehensive strategy is required to resolve investigations in a multijurisdictional context. This session will focus on the many factors that need to be considered to formulate that strategy.