FRA Directors Doel Kar and Nancy Waung attended the International White Collar Crime Symposium: The Globalization of Enforcement in New York to hear about the latest enforcement trends. Below is a summary of key observations from the panelists:
- Globalization of anti-corruption efforts has expanded significantly such that cases are extending far beyond the reach of the US Foreign Corrupt Practices Act (FCPA). Unprecedented coordination with foreign authorities has led to a significant increase in negotiated settlements and criminal prosecutions globally. In the past few years, more than 44 countries have assisted US authorities in meaningful ways.
- Countries are strengthening its anti-corruption efforts. France enacted an anti-corruption law in 2016, commonly referred to as Sapin II, which requires French companies to implement anti-corruption compliance programs. The requirements of the mandatory compliance program are viewed as more stringent than US requirements. In Brazil, federal prosecutors are expanding bribery and corruption investigations to companies within the healthcare sector and other industries.
- There is a widening use of negotiated settlements around the world, which is critical in encouraging cooperation in multi-jurisdictional cases. The UK has used deferred prosecution agreements since 2013. France introduced the use of settlement agreements, known as Convention Judicaire d’Intérêt Public (CJIP) in 2016. Although Mexico prosecutors have not yet landed a hallmark case, Mexico has a version of the deferred prosecution agreement, referred to as “criterions of opportunity,” which is changing the landscape in Mexico.
- In the UK, although there are a great amount of cases brought forward by the Serious Fraud Office (SFO), the new SFO director has not moved forward with prosecuting individuals in recent cases. Cases depend on cooperating defendants, and in the UK, prosecutors cannot guarantee lessened sentences or negotiated terms, shifting the leverage of power. These decisions are ultimately made by the judge. In addition to criminal prosecutions, enforcement agencies in the UK are able to go after assets. The National Crime Agency (NCA) and the SFO can seek to freeze accounts by the use of Account Freezing Orders (AFOs) and potentially then forfeit funds held in bank accounts suspected to contain illicit funds.
- As enforcement rises globally, companies should consider the disparity in laws or precedence across jurisdictions. Benefits in self-disclosure across multiple countries should be weighed carefully, considering the extent of levied fines and leniency across each jurisdiction.
- Although data privacy laws and blocking statutes present challenges in sharing data to facilitate cross-border investigations, the DOJ have challenged companies to consider ways of obtaining information through data servers located in other countries or transferred to countries without restrictions. After exhausting all possible avenues, US enforcement agencies may turn to mutual legal assistance treaties to obtain information through cooperation with foreign authorities.
- International cooperation has come a long way since the OECD Anti-Bribery Convention was introduced, but there is still a long journey ahead with a call on more countries to join the fight against corruption.
For more information on how these trends may impact your practice, please reach out to one of the authors or your regular FRA contact.