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Corporate Crime a Global Perspective Contents Corporate crime A global perspective Contents 05 Key themes 20 Austria 24 Belgium A cross-border guide to 28 Brazil corporate criminal liability 34 China and enforcement 38 France 42 Germany Society’s relationship with business The risk of criminal enforcement Hong Kong has shifted over recent years, bringing action in many European jurisdictions 46 and the US has long been a reality corporate conduct firmly into the 50 Italy spotlight. Often in response to calls for multinational companies. But we are now seeing stronger laws and/or for greater corporate accountability, 54 Japan more enforcement activity in governments and enforcement jurisdictions in Asia, Latin America agencies have increasingly been 58 Netherlands and Africa as well. As such, global turning to the criminal law to hold companies must actively manage their 62 Russia companies liable for misconduct criminal law risks in all regions occurring within their organisations within which they operate. 66 Singapore or for their benefit. Across various With this in mind, we are delighted jurisdictions, lawmakers have to present our overview of the key 70 South Africa introduced a growing number of themes in corporate criminal law offences for which companies can and practice impacting multinationals 76 Spain be prosecuted. And many agencies today, together with a guide to with criminal powers are increasingly corporate criminal liability and 80 Switzerland using them to pursue companies – in enforcement in 17 jurisdictions across the areas of tax, antitrust, anti-bribery the world. 84 United Kingdom and corruption, financial services 90 United States and environmental law, to name a few. 96 Freshfields contacts 100 Acknowledgements 101 Our corporate crime team A global perspective Key themes at a glance We are pleased to present the key themes in corporate criminal law and practice impacting multinationals today, which bring together our insights from helping clients to address and defend against corporate criminal liability in various jurisdictions with those of senior former prosecutors in the firm in Germany, Singapore, the UK and the US. 5 Corporate crime A global perspective Increasing use of the criminal law to address misconduct in the corporate context Overall, the scope for corporate criminal liability In addition to new statutes, some prosecutors (or quasi-criminal liability) has been growing. have been using existing laws more forcefully A number of countries have amended their laws to pursue companies for different kinds of in the past five years to introduce or strengthen misconduct. In the US, for example, prosecutors laws relating to corporate criminal liability or have instigated criminal investigations into to put in place tougher corporate administrative companies’ use of software amid allegations liability regimes to punish companies for companies in different sectors have been using economic crimes carried out in their name software to circumvent regulations. And the US or for their benefit. Department of Justice (DOJ) Antitrust Division has also been turning its attention to the use of Combating bribery and corruption, including technology, specifically the use of price-setting foreign corruption, is a stated priority of algorithms set up and designed to distort the many governments around the world. As Trace market. Also, the UK’s Financial Conduct International has reported, as of 31 December Authority (FCA) used its powers under s.384 2016, there were 255 ongoing investigations of the Financial Services and Markets Act for concerning alleged bribery of foreign officials the first time in 2017 to require a listed company being conducted by authorities in 29 countries. to pay compensation for market abuse. 106 of those investigations (42 per cent) were The new corporate offences in the UK by authorities in Europe. And 2017 saw a In the related civil and regulatory sphere, many number of new corruption cases being opened financial services regulators are also taking demonstrate a political will and appetite amongst in various jurisdictions. an increasingly robust attitude to systems and lawmakers and enforcers to bring companies controls failures relating to economic crime. Whilst in some emerging economies the In 2016, the US Federal Reserve imposed its first to account under the criminal law. And new laws increased scope for liability focuses largely on civil fine on a company in relation to US Foreign bribery and corruption, elsewhere prosecutors Corrupt Practices Act (FCPA) related misconduct are just part of the picture. We are also starting to are also focusing on a broader range of offences. in a co-ordinated action with the US Securities see the UK authorities looking to make greater In the UK, in 2017 alone, the government and Exchange Commission (SEC) and the DOJ. introduced (i) two new corporate offences And the Singapore Monetary Authority has use of statutes that have been on the books for for failing to prevent the facilitation of UK started publicly naming banks that have been and overseas tax evasion (with effect from the subject of regulatory enforcement action, some time in prosecutions of companies. 30 September 2017); (ii) a new corporate offence particularly relating to anti-money laundering for contravening a requirement under the failings – in a move away from their previous Ali Sallaway, Partner, London Money Laundering Regulations 2017; and practice of private sanctions. (iii) a new offence, applicable to certain large In light of the above, the need to manage companies and limited liability partnerships, corporate criminal liability risks and respond for failing to report their payment practices. to potential investigations by prosecutors, The government also revived plans to consult or to related enforcement action by regulators, on a new corporate offence for failing to prevent is now the new norm for multinationals. economic crimes, such as false accounting, fraud and money laundering. 6 Corporate crime A global perspective International co-operation between prosecutors: understanding the issues that can arise when prosecutors work across borders Reflecting the reality that the conduct under Of course, where enforcement agencies in investigation in many corporate cases occurs in multiple countries investigate the same conduct, FCPA resolutions multiple countries, co-operation between law the procedures and investigative techniques used enforcement authorities across borders is in different jurisdictions may give rise to difficult increasingly the norm. Such cross-border legal and procedural issues. These differences co-operation has become a fixture of global may impact some of the strategic judgement calls The DOJ publicly acknowledged bribery, money laundering, tax and fraud a company has to make, and they may also affect the assistance of authorities in investigations. And many of the most significant how a company conducts its own investigations economic crime investigations of recent years and its ability to reach a global resolution with have been international in scope. the authorities in the relevant jurisdictions. Law enforcement agencies now regularly make For example, in United States v Allen, the US Court public statements highlighting the extent to of Appeals for the Second Circuit held that the which they co-operate with, and are assisted by, prohibition against the use and derivative use of their counterparts abroad. a defendant’s compelled testimony applies even when the testimony was compelled by a foreign authority (in this case the UK’s FCA). The DOJ 7 20 ‘ All our cases have a significant must ensure that, when exchanging information countries countries international dimension. We have with its counterparts, it does not allow its invested real effort in building investigation to become tainted by compelled strong co-operative relations with testimony (compulsion is a common practice in foreign agencies in key financial the UK). Companies looking to co-operate with US prosecutors should be mindful of this. 2012 2016 centres across the globe.’ Otherwise, there is a risk companies could Director of the UK SFO, September 2016 prejudice any co-operation credit they may have built up by, inadvertently, including in their reports to the US authorities information derived Cross-border co-operation takes many forms, from compelled testimony the company has including informal intelligence sharing The SEC acknowledged assistance from received from an authority elsewhere in the (sometimes before a formal investigation has context of a parallel investigation. Or a company begun), case-specific co-ordination, formal mutual that has had access to compelled testimony legal assistance to gather and share evidence, could find its ability to co-operate at all severely and other programmes to share experience and hampered if the DOJ views the company as build capacity. The DOJ, for example, has long tainted and prefers to keep the company at arm’s stationed prosecutors in countries around the length so as not to prejudice any subsequent world to provide, among other things, training prosecutions. and development. In 2017, for the first time, the DOJ sent a white-collar prosecutor on Whilst there are restraints on what prosecutors secondment to the UK’s Serious Fraud Office (SFO) can share, companies should, nonetheless, assume 0 25 and the FCA. This secondment suggests that authorities will share any information they legally countries countries prosecutors in the US and the UK are committed can with relevant foreign
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