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Corporate Investigations 2021 a Practical Cross-Border Insight Into Corporate Investigations Fifth Edition

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Corporate Investigations 2021 a Practical Cross-Border Insight Into Corporate Investigations Fifth Edition Corporate Investigations 2021 A practical cross-border insight into corporate investigations Fifth Edition Featuring contributions from: Anagnostopoulos Kellerhals Carrard Poul Schmith Bloomfield Law Practice Kingsley Napley LLP Rahman Ravelli Boies Schiller Flexner LLP Lydian Rui Bai Law Firm De Roos & Pen Morais Leitão, Galvão Teles, Sołtysiński Kawecki & Szlęzak Debevoise & Plimpton LLP Soares da Silva & Associados ŠunjkaLaw Dechert LLP Morgan, Lewis & Bockius LLP Wikborg Rein Gilbert + Tobin Norton Rose Fulbright LLP Iwata Godo Nyman Gibson Miralis ISBN 978-1-83918-088-0 ISSN 2398-5623 Published by 59 Tanner Street London SE1 3PL United Kingdom Corporate Investigations 2021 +44 207 367 0720 [email protected] www.iclg.com Fifth Edition Publisher Jon Martin Editor Amy Norton Senior Editor Contributing Editors: Sam Friend David Kelley & Caroline Black Head of Production Suzie Levy Dechert LLP Chief Media Officer Fraser Allan CEO Jason Byles Printed by Ashford Colour Press Ltd. Cover image www.istockphoto.com ©2020 Global Legal Group Limited. All rights reserved. Unauthorised reproduction by any means, Strategic Partners digital or analogue, in whole or in part, is strictly forbidden. Disclaimer This publication is for general information purposes only. It does not purport to provide comprehen- sive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. Table of Contents Expert Chapters Cross-Border Investigations: Navigating International Requirements 1 Tim Bowden, Roger A. Burlingame, Noel Power & Dae Ho Lee, Dechert LLP Bribery and Corruption: Investigations and Negotiations Across Jurisdictions 8 Aziz Rahman & Joshua Ray, Rahman Ravelli Corporate Cooperation: Benefits and Challenges 17 Lauren Bell & John Kucera, Boies Schiller Flexner LLP Asia Pacific Overview 22 Phillip Gibson, Dennis Miralis & Rachel Le Bransky, Nyman Gibson Miralis Q&A Chapters Australia Nigeria 28 Gilbert + Tobin: Elizabeth Avery & Richard Harris 93 Bloomfield Law Practice: Adekunle Obebe & Solomon Oshinubi Belgium 37 Lydian: Jan Hofkens & Yves Lenders Norway 98 Wikborg Rein: Elisabeth Roscher & Geir Sviggum China 44 Rui Bai Law Firm: Wen Qin & Juliette Zhu Poland 105 Sołtysiński Kawecki & Szlęzak: Tomasz Konopka Denmark 49 Portugal Poul Schmith: Jens Teilberg Søndergaard & 111 Martin Sønnersgaard Morais Leitão, Galvão Teles, Soares da Silva & Associados: Tiago Félix da Costa, João Matos Viana England & Wales & Frederico Machado Simões 56 Kingsley Napley LLP: Alun Milford, Caroline Day, Áine Kervick & Philip Salvesen Serbia 117 ŠunjkaLaw: Tomislav Šunjka France 64 Norton Rose Fulbright LLP: Christian Dargham & Switzerland Caroline Saint Olive 124 Kellerhals Carrard: Dr. Claudia Götz Staehelin, Dr. Florian Baumann, Dr. Omar Abo Youssef & Germany Marlen Schultze 70 Debevoise & Plimpton LLP: Dr. Thomas Schürrle & Dr. Friedrich Popp United Arab Emirates 132 Morgan, Lewis & Bockius LLP: Rebecca Kelly & Greece Chris Warren-Smith 75 Anagnostopoulos: Ilias G. Anagnostopoulos & Padelis V. Bratis USA 139 Dechert LLP: Jeffrey A. Brown & Roger A. Burlingame Japan 80 Iwata Godo: Akira Matsuda & Minako Ikeda Netherlands 87 De Roos & Pen: Niels van der Laan & Jantien Dekkers Welcome Preface We are pleased to have contributed again this year to ICLG – Corporate Investigations. The guide is a useful point of reference when reviewing and comparing common issues in investigations across multiple jurisdictions. This year, the guide contains four expert and 18 jurisdiction chapters. Our expert chapter, Cross-Border Investigations: Navigating International Requirements, compares the approaches taken by the US, UK and French authorities to investigations and considers developing enforcement trends. Rahman Ravelli’s chapter on bribery and corruption investigations across jurisdictions considers historical legislation on bribery and significant legal changes since the Bribery Act 2010. Boies Schiller Flexner has written a chapter on the benefits and challenges of corporate cooperation, and Nyman Gibson Miralis has provided an Asia Pacific overview. David Kelley & Caroline Black Partners Dechert LLP Welcome Chapter 1 1 Cross-Border Investigations: Navigating International Roger A. Requirements Tim Bowden Burlingame Dechert LLP Noel Power Dae Ho Lee Introduction based on a “reasonable indication” of criminal activity, a low bar that is easily cleared.4 Prosecutorial decisions, including Since the ratification of the 1999 Organisation for Economic whether or not to open an investigation, are guided by the DOJ’s Co-operation and Development (“OECD”) Anti-Bribery Principles of Federal Prosecution of Business Organizations.5 Prosecutors Convention, signatory nations have stepped up their anti- apply nine factors, including: the nature and seriousness of corruption efforts by enacting and enforcing laws to prose- the offence; the pervasiveness of wrongdoing in the organisa- cute companies and individuals involved in wrongdoing. The tion; the organisation’s willingness to cooperate; the organisa- US were trailblazers, vigorously enforcing the Foreign Corrupt tion’s voluntary disclosure of wrongdoing; and the corporation’s Practices Act (“FCPA”) since the early 2000s, with the UK and remedial actions. France joining the fray with the passage of the Bribery Act in Unlike the DOJ, the SFO does not have a general authority 2011 and Sapin II in 2016, respectively. or duty to prosecute crimes in the UK. Instead, the SFO inves- It is clear that the investigatory processes and capabilities of tigates only the most serious and complex fraud, bribery and each of these three nations’ anti-corruption authorities have corruption cases. The SFO is empowered to investigate offences evolved significantly. Despite the turbulent nature of 2020, committed anywhere in the world by companies incorporated in the US Department of Justice (“DOJ”) instituted 23 Deferred the UK, as well as by British citizens or persons who are ordi- Prosecution Agreements (“DPAs”) and four Non-Prosecution narily resident in the UK.6 Agreements (“NPAs”); the UK’s Serious Fraud Office (“SFO”) In deciding whether to authorise an investigation, the SFO entered into three DPAs; whilst the French Parquet National considers: (1) whether harm may be caused to the public; (2) the Financier (“PNF”) concluded one convention judicaire d’intérêt reputation and integrity of the UK as an international finan- public (“CJIP”).1 cial centre; and (3) the economy and prosperity of the UK. It The Airbus DPA in January 2020 has given a clear indication will also consider whether the complexity and nature of the of the enhanced capabilities of the authorities when working suspected offence warrant the application of the SFO’s specialist together. The lessons learned and connections developed between skills, powers and capabilities to investigate and prosecute.7 the agencies are likely to have a long-lasting influence on the The PNF was created in 2013 to strengthen France’s ability to future conduct of corporate investigations. International compa- investigate and prosecute “tax fraud and large-scale economic nies should be aware that an investigation opened by one authority and financial crime”.8 The PNF focuses on the most complex may lead to investigations by others, and that investigatory efforts and serious financial crime, including corruption, misappropri- will likely be increasingly synchronised and unified, with multiple ation of public funds, aggravated tax fraud, money laundering authorities scrutinising such a company’s every move. and market abuse. It can investigate offences committed on In this chapter, we will look at: how the US, UK and French French territory as well as those committed abroad by a person anti-corruption agencies conduct investigations; the considera- or entity regularly domiciled in France.9 tions they take into account when deciding whether or not to Much like its US and UK counterparts, the PNF can receive prosecute wrongdoing; and the alternative resolutions available initiating information from domestic or foreign authorities, as to cooperative companies. well as from whistleblowers, self-reports or the media. Standards for Investigation Conduct of Investigations Each enforcement agency employs its own standards in deter- The DOJ utilises several tools at its disposal to gather evidence, mining whether and how to initiate an investigation. However, including wiretaps, informants and cooperating witnesses. It the general principles across all three are substantially similar: typically conducts investigations through federal law enforce- they receive information; conduct preliminary inquiries; and ment agencies (such as the FBI) operating in conjunction with weigh up evidential and public interest factors when deter- grand juries – independent bodies vested with expansive investi- mining whether a full-blown investigation is warranted. gative powers tasked with determining if there is probable cause The DOJ prosecutes all US federal criminal matters, including that a federal crime has been committed. Grand jury powers the FCPA. 2 The DOJ has taken an expansive and aggressive view include the ability to compel production of corporate documents on its territorial jurisdiction,
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