Bribery & Corruption 2018 Fifth Edition Contributing Editors: Jonathan Pickworth & Jo Dimmock Global Legal Insights Bribery & Corruption 2018, Fifth Edition Contributing Editors: Jonathan Pickworth & Jo Dimmock Published by Global Legal Group GLOBAL LEGAL INSIGHTS – BRIBERY & CORRUPTION 2018, FIFTH EDITION Contributing Editors Jonathan Pickworth & Jo Dimmock, White & Case LLP Editor Sam Friend Senior Editors Suzie Levy & Caroline Collingwood Group Consulting Editor Alan Falach Publisher Rory Smith We are extremely grateful for all contributions to this edition. Special thanks are reserved for Jonathan Pickworth and Jo Dimmock for all of their assistance. Published by Global Legal Group Ltd. 59 Tanner Street, London SE1 3PL, United Kingdom Tel: +44 207 367 0720 / URL: www.glgroup.co.uk Copyright © 2017 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-911367-82-6 ISSN 2052-5435 This publication is for general information purposes only. It does not purport to provide comprehensive 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. The information contained herein is accurate as of the date of publication. Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY November 2017 CONTENTS Preface Jonathan Pickworth & Jo Dimmock, White & Case LLP General chapter Finding evidential needles in massive data haystacks: the role of financial and data analytic experts in an investigation David Lawler, Keith McCarthy & Paul Nash, Kroll 1 Country chapters Albania Dritan Jahaj & Fatma Muça, Haxhia & Hajdari Attorneys at Law 11 Australia Greg Williams & Tobin Meagher, Clayton Utz 20 Brazil Maurício Zanoide de Moraes, Daniel Diez Castilho & Lucas Dotto Borges, Zanoide de Moraes, Peresi, Braun & Castilho Advogados Associados 37 Cayman Islands Martin Livingston & Adam Huckle, Maples and Calder 46 China Hui Xu, Catherine E. Palmer & Sean Wu, Latham & Watkins 56 France Stéphane Bonifassi, Bonifassi Avocats 74 Germany Dr Tobias Eggers & Sebastian Wagner, PARK | Wirtschaftsstrafrecht 85 India Aditya Vikram Bhat & Shwetank Ginodia, AZB & Partners 92 Ireland Megan Hooper, Imelda Higgins & Heather Mahon, McCann FitzGerald 101 Italy Roberto Pisano, Studio Legale Pisano 111 Japan Daiske Yoshida & Junyeon Park, Latham & Watkins 122 Luxembourg Laurent Lenert & Marlène Muller, Kayser, Lenert & Becker 131 Mexico Leonel Pereznieto, Carlos E. Martínez-Betanzos & Andrés Sánchez Ríos y Valles, Creel, García-Cuéllar, Aiza y Enríquez, S.C. 140 Romania Mihai Mareș, Mareș / Danilescu / Mareș 154 Russia Hannes Lubitzsch, Noerr 173 Serbia Vladimir Hrle, Hrle Attorneys 184 Singapore Jason Chan, Allen & Gledhill LLP 190 Slovenia Uroš Čop, Katarina Mervič & Eva Rop, Law firm Miro Senica and attorneys, Ltd. 196 Spain Mar de Pedraza Fernández & Paula Martínez-Barros Rodríguez, De Pedraza Abogados, S.L.P. 208 Switzerland Marcel Meinhardt & Fadri Lenggenhager, Lenz & Staehelin 221 Taiwan Grace Wang, Wen-Ping Lai & Bessie Y. C. Su, Lee and Li, Attorneys-at-Law 231 Turkey Orçun Çetinkaya & Burak Baydar, Moroğlu Arseven 241 Ukraine Dr Svitlana Kheda, Sayenko Kharenko 247 United Kingdom Jonathan Pickworth & Jo Dimmock, White & Case LLP 261 USA Jeremy B. Zucker, Darshak Dholakia & Hrishikesh N. Hari, Dechert LLP 280 PREFACE nce the exclusive preserve of the United States, anti-corruption enforcement is now becoming a truly global phenomenon. OWe are very pleased to present the fifth edition of Global Legal Insights – Bribery and Corruption. This book sets out the legal environment in relation to bribery and corruption enforcement in 25 countries worldwide. In addition to addressing the legal position, the authors have sought to identify current trends in enforcement, and anticipated changes to the law and enforcement generally. As is revealed in this book, there have been some very substantial enforcement actions around the world since the fourth edition was published. There have also been significant developments in relation to deferred prosecution agreements (particularly in the United Kingdom where the Serious Fraud Office has come of age), and in France we have seen the introduction of its own anti-corruption law Sapin II. Consequently, the management of both preventative compliance programmes and – when things go wrong – multi- jurisdictional investigations, is becoming ever more complex and requiring of specialist support. We are very grateful to each of the authors for the contributions they have made. We hope that the book provides a helpful insight into what has become one of the hottest enforcement topics of current times. Jonathan Pickworth & Jo Dimmock White & Case LLP October 2017 Finding evidential needles in massive data haystacks The role of financial and data analytic experts in an investigation David Lawler, Keith McCarthy & Paul Nash Kroll Companies with international operations today face scrutiny at an unprecedented level. They are subject to reviews and investigations by national governments, as well as local, state, and foreign government agencies. They may then face civil claims by other aggrieved stakeholders who may call into question a company’s conduct. It is vital that companies faced with allegations or suspicions of wrongdoing properly understand them, and conduct their own detailed internal investigation to resolve them. The last 20 years of technological evolution has deeply and permanently altered business record-keeping. In matters involving bribery and corruption, the majority of the facts will now be found inside corporate networks, email servers, and electronic devices, and in accounting systems which capture the details of millions of transactions. In this chapter, we set out some of the elements that should be considered when undertaking a multi-jurisdictional anti-bribery and corruption investigation, focusing on the increasing role that the non-legal experts play – the forensic accountants, data analysts, and investigators – and how they can be used most effectively to search the data haystacks for evidence as to what has gone on and where problems might arise in the future, while minimising disruption to the business. Developing the strategy and structuring the team When a company is confronted with evidence or allegations of potential wrongdoing, it needs to respond deliberately and carefully, ensuring that it has gathered and interpreted all the facts. The most important thing when first instructed is to ensure that the questionable conduct has stopped. The investigation then typically seeks to answer the two fundamental and interlinked questions: ‘Is the company’s compliance programme well designed?’ and ‘Does it work effectively?’ It typically does this by a combination of: talking to people; observing how things are currently done; and (because those who cannot remember the past are condemned to repeat it) a review of historic transactions – in other words, a hunt for bribes. There are therefore three practical components of any investigation, all of which require expertise in addition to that provided by legal counsel: • talking to people – interviewing; • looking at the company’s electronic and hard-copy documents and data – document review and electronic evidence interrogation; and • looking at the company’s financial and business records – forensic accounting and data mining. GLI – Bribery & Corruption 2018, Fifth Edition 1 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Kroll Finding evidential needles in massive data haystacks The expert team Corporate internal bribery and corruption investigations have traditionally been led by, and carried out by, lawyers. Strict delineations, however, are quickly breaking down. Consulting firms are often instructed directly or via financial stakeholders, and financial investigators (whether ‘forensic accountants’, or seconded auditors wearing a ‘forensic’ hat for a couple of months), data analysts, and investigators are playing an increasingly vital role. The legal team will often be assisted by an experienced team of practitioners, including: • Forensic accountants: In multi-jurisdictional investigations the financial footprint relating to the potentially unlawful activity is often hidden through shell companies, trusts, transactions with group companies and other disguised mechanisms. The forensic accountants are experienced in unravelling complex and opaque structures, and should know how bribes and other illicit payments can be disguised. • Technology specialists: In many investigations, mobile and social media data will need to be forensically captured and processed, alongside the other systems data from the business. Applying forensic data collection techniques will ensure that the evidence is captured to a legally supportable standard, and provided in a format that can be easily analysed and shared. • Investigators and researchers: Background and real-time intelligence can help focus the investigation and ensure that suspect individuals, associates and entities are researched thoroughly. • Local language experts: The global nature of investigations often necessitates the need for translators for interviews and document review. In any multi-jurisdictional investigation