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Insights from the 3rd ABA Global White Collar Crime Institute in Prague

August 16, 2019

Keynote: Matthew Miner, Deputy Assistant Attorney General, US DOJ

Transnational investigations are on the rise, driving the need for an international approach and cooperation

  • The complexity of the different laws and regulations, including data privacy regulations, impact how evidence is gathered
  • The Anti-Piling On Policy encourages cooperation and helps return some of the funds from the penalty to the country in which the matter occurred in

Evaluation of Corporate Compliance Programme is not a regulation but serves as a guidance as it is not one size fits all

  • The existence of a compliance function does not mean that a robust compliance programme is in place
  • Look at the risk profile of the business/organisation, and build the compliance programme around it
  • Companies are advised to have a strong compliance programme, robust remediation plans and evidence of actions, and be willing to self-disclose

Meet the Enforcers (representation from SFO, US DOJ and Czech Republic)

Current priorities

  • SFO - clear but narrow limit; Noted UK corporate liability is enforced but at a much higher level standard of proof (corp director/officer involvement) than in the US
  • DOJ - Opioid and healthcare; Bribery FCPA remains a priority; China's initiative includes more IP theft as a clear priority but also includes FCPA; CFTC seeking FCPA enforcement; Brazil was not a priority/focus, but simply an increase of matters relating to that country
  • CR - seizure and confiscation; financial crime (including public tenders and EU subsidies), cyber security (including terrorism) and sentencing guidelines
  • Increase in cross-border cooperation, including leveraging on support from Eurojust and OECD

VW Privilege Panel

  • Significant complexities and variations in practice exist when conducting multi-jurisdictional internal investigations
  • VW case, with raids on VW's US lawyers, law firm raises concerns about scope of privilege from one jurisdiction to another
  • Local law specialist are important in ensuring maximum protections
  • Beyond privilege, there are wider considerations for the security of investigations in particular how data is retained securely and, when transferred, that laws are respected. A detailed risk assessment of these considerations should be undertaken prior to information collection

Keynote: Dr Adrian Jung (Special Counsel to the German Federal Ministry of Justice)

  • Corporate offences are currently treated as administrative rather than criminal in nature
  • There is a North/South divide in Germany with more sanctions being applied against companies in the South, as there are more companies set up and operating in the South

There is new draft legislation in place which will criminalise corporate offending

  • Companies and senior executives will be subject to criminal process
  • Companies will have the same rights as other suspects in criminal investigations - especially as regards privilege
  • Turnover fines to be introduced (10%), for companies with turnover >€100m
  • Effective compliance programmes and internal investigations will reduce the penalty imposed but not act as a full defence cf. UK Bribery Act

Global Anticorruption Trends

Netherlands

  • Effects of Vimplecom now spreading to the financial sector - ING Bank receiving financial penalties for AML infractions
  • EY also being prosecuted for failing to report

LATAM

  • All countries in the region (except Chile) score below 50 on the CPI
  • Mexico is emerging as the regional champion in bringing enforcement actions
  • Venezuela is also very active in enforcement, centred around state owed oil company

Argentine, Brazil, Chile, Columbia and Mexico have all updated their bribery laws in recent years. All of these laws have coalesced around three key concepts

  • Corporate liability
  • Whistle-blower protection
  • Credit for compliance programmes

It was also noted that Data Protection laws are coming into force. Put compliance officers in the field, where they are needed, instead of only at the headquarters

Russia

  • There is no corporate criminal liability; although new banking rules are successfully restricting (illicit) cash related activities
  • The area most common where ABC investigation arises include the construction sector and government procurement

Brexit Panel

  • The universal view is that cooperation would be slower post Brexit
  • There are concerns from the financial sector on passporting and equivalence

https://www.americanbar.org

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