2019 ANNUAL M&A REVIEW 2020 CROSS-BORDER CORPORATE CRIMINAL LIABILITY SURVEY 2020 CROSS-BORDER CORPORATE CRIMINAL LIABILITY SURVEY TABLE OF CONTENTS INTRODUCTION . 1 MIDDLE EAST . 106 GLOSSARY . 4 ISRAEL . 107 AFRICA . 5 SAUDI ARABIA. 113 SOUTH AFRICA. .. 6 UNITED ARAB EMIRATES . 117 ASIA PACIFIC . 10 NORTH AMERICA . 121 AUSTRALIA . .11 CANADA . 122 CHINA . 16 MEXICO . 126 HONG KONG . 20 UNITED STATES . 131 INDIA . 25 SOUTH AMERICA . .. 135 INDONESIA . 30 ARGENTINA . 136 JAPAN . 34 BRAZIL . 141 SINGAPORE . 38 CHILE . 145 TAIWAN (REPUBLIC OF CHINA) . 43 VENEZUELA . 149 CENTRAL AMERICA . 47 CONTACTS . 152 COSTA RICA . 48 EUROPE . 52 BELGIUM . 53 FRANCE . 57 GERMANY . 62 ITALY . 69 NETHERLANDS. .. 76 RUSSIA . 84 SPAIN . 87 SWITZERLAND . 92 TURKEY . 96 UKRAINE . 99 UNITED KINGDOM . 103 Jones Day White Paper 2020 CROSS-BORDER CORPORATE CRIMINAL LIABILITY SURVEY INTRODUCTION For any company, the risk that employees or agents may countries, and the ability of industry participants to engage in criminal conduct in connection with their work assert (accurately or inaccurately) that a competitor has and thereby potentially expose the company (or at least broken the law . Multinational companies are at ever- the responsible individuals) to criminal, administrative, increasing risk of aggressive criminal enforcement, and/or civil liability is ever present; for multinational often across numerous jurisdictions at once . companies, which are necessarily subject to the laws To be sure, aggressive enforcement of corporate of multiple jurisdictions, this risk is only heightened . crime can help ensure that such crime is appropriately How a company manages the risk of corporate criminal punished and deterred and that the rights and interests liability, in particular, can not only determine its success, of victims are honored through a criminal proceeding . but also protect (or imperil) its viability . The stakes do But the reasonableness of a criminal enforcement not get much higher than when the company is facing a action is not always apparent, especially when the criminal investigation or, worse, a criminal prosecution . alleged misconduct could instead be more effectively When armed government agents raid corporate offices, redressed through civil or administrative action . when executives are arrested and paraded before news cameras in handcuffs, when shareholders bring Moreover, in cross-border matters, it can be far lawsuits alleging malfeasance and neglect on the part from clear whether a corporate entity could even be of directors and officers, when legislators clamor for criminally charged for certain conduct and whether corporate accountability in politically charged public a particular country would actually have jurisdiction hearings, and especially when criminal charges against to bring a criminal case against the entity premised the company are announced, the reality is stark—the on that conduct . This is because the jurisdictional company’s good name and culture are under attack, analysis in such matters can be complex, and because and its very existence may hang in the balance . countries differ not only in what they criminalize, but also in whether and how corporations can be punished The sudden demise of the global accounting firm under their laws . Thus, even companies with robust Arthur Andersen in the aftermath of its conviction on compliance programs and legal departments may obstruction of justice charges in the Enron scandal face challenges in understanding, implementing, is the best—but only one—example of the potentially and adapting to regulatory requirements across the devastating consequences for companies that find jurisdictions in which they operate . themselves in the cross-hairs of a criminal investigation . In the nearly 20 years since Arthur Andersen ceased Identifying, evaluating, and mitigating the risk of to be, the enforcement of corporate crime has only corporate criminal liability is a process . An important escalated . This trend shows no signs of abating . At step in this process for any multinational company is any given moment, a number of the world’s leading understanding the landscape of corporate criminal business organizations are under scrutiny from law liability and enforcement for every jurisdiction in enforcement authorities who possess an assortment which the company does business . Because these of investigative tools and an increasing appetite to landscapes change over time, sometimes abruptly, this use them to combat corporate crime, sometimes process must be ongoing and continuous . with questionable judgment and motivations . And the opportunities for enforcement officials across the world This Survey is designed to aid this process by to launch investigations into allegations of corporate providing an overview of relevant laws in 31 countries crime are abundant—with whistleblower laws offering and territories spanning the globe . The Survey reports substantial financial “bounties” to persons who disclose on significant—even dramatic—variations in the legal violations, the revelation of corporate scandals in landscape of corporate criminal liability, including on media reports, the increased sharing of information foundational topics like these: by and among enforcement authorities in multiple Jones Day White Paper 1 2020 CROSS-BORDER CORPORATE CRIMINAL LIABILITY SURVEY • Corporate criminal defendants . In many countries, They form the basis for foreign enforcement actions— criminal prohibitions apply generally to corporations providing legal authorization for law enforcement just as they apply to natural persons . Other countries activity, shaping the scope of criminal investigations, do not have corporate criminal liability regimes (e g. ., determining the tools and leverage available to Turkey), although companies there may still face prosecutors, and setting the terms of a company’s sanctions . Others extend corporate criminal liability engagement with enforcement authorities . Outside the only to select offenses (e g. ., Brazil) or have “quasi- context of a pending enforcement action, an evaluation criminal liability” for corporations with some hallmarks of foreign prosecution risk can provide guideposts for of criminal liability (e g. ., Italy) . company decisions on designing and implementing effective international compliance programs, Corporate criminal liability for acts of others . • A addressing employee misconduct, monitoring activities corporation can act only through its agents . Countries of third-party agents, and conducting due diligence on that do provide for corporate criminal liability differ vendors and other potential business partners . on the circumstances under which a corporation is criminally liable for the acts of those agents, In this era of ever-increasing enforcement of corporate including both natural persons and subsidiaries . In crime, the trend worldwide is toward expanding some countries, so-called vicarious liability is linked corporate criminal liability and imposing greater to acts of senior officers (e g. ., Canada); in others, demands on corporate self-governance and social the question focuses on the wrongdoer’s actions, responsibility . Resolutions of criminal investigations that functions, authority, and responsibility within the include a company’s agreement to pay nine- or even corporation (e g. ., Israel) . ten-figure financial penalties are now commonplace, as is political pressure to prosecute individuals and Corporate consequences . • Depending on the companies alleged to be responsible for failed or country, corporations face a wide range of criminal suspicious transactions or economic downturns . Greater penalties—as well as collateral consequences of international cooperation between law enforcement a criminal conviction—including fines, forfeiture, agencies has accelerated this trend, increasing both restitution, probation, debarment from government the number and efficacy of cross-border investigations contracts, loss of licenses or security clearances, and the associated risks to multinational corporations . temporary suspension, or even dissolution . The responsibility of addressing foreign prosecution • Corporate incentives . Countries vary with respect risk is, thus, more pressing and more challenging than to the incentives their laws provide to companies to ever before . mitigate the risk of corporate criminal liability and This Survey is intended as a starting point to give related penalties, if not avoid liability altogether . In some sense of the scope of corporate criminal liability some countries, the implementation of an appropriate laws and trends in a particular country, but it is not a compliance program can be a defense to corporate substitute for a review of the actual regulations in light criminal liability in certain situations (e g. ., Spain); in of a particular set of facts . This Survey should not be others, it can be relevant to charging or sentencing construed as legal advice on any specific facts or decisions (e g. ., United States) . Countries likewise circumstances . offer differing incentives for companies to self-report wrongdoing, with some requiring it as a matter of If questions come up in relation to the laws of a specific law in certain situations . Countries also differ on the country, the last section of this Survey lists contacts at protections and incentives offered to whistleblowers . Jones Day who are in a position to provide information Each country’s answers to these and other foundational