Published: January 2017Contents
i) What are the hot topics?
A few highlights include the March 2015 enactment of regulations supplementing Brazil’s Clean Company Act; China’s August 2015 amendments to its Criminal Law that add monetary penalties for corruption-related crimes; the South Korean legislature’s March 2015 approval of a new anti-corruption law expected to enter into force in October 2016; and the Mexican Congress’s March 2015 approval of an anti-corruption law that will create a special court to oversee all corruption-related issues.
In the United States, enforcement authorities continue to vigorously enforce the Foreign Corrupt Practices Act (FCPA) and other anti-corruption laws. In May 2015, US prosecutors announced a 47-count indictment charging nine FIFA officials and five sports marketing firm executives with non-FCPA corruption-related offences including racketeering, wire fraud, money laundering, tax evasion and obstruction of justice. Subsequently, seven of the FIFA officials were prominently arrested in Switzerland and are currently the subject of formal US extradition requests.
ii) Tell us about any key legal developments – recent or pending – and their international impact.
The foreign bribery landscape grows increasingly complicated for multinational companies, as the United Kingdom, China, Brazil, Argentina, Norway, Algeria and India, among other countries, have each launched significant investigations and brought a substantial number of anti-corruption actions in the past year related to international business transactions. The growing number of enforcement actions around the world are supported by a significant trend toward greater international cooperation in anti-corruption enforcement efforts. In a 17 June 2013 keynote address, the Justice Department Acting Assistant Attorney General Mythili Raman commented: ‘Through our increased work on prosecutions with our foreign counterparts and our participation in various multilateral fora like the OECD and United Nations, it is safe to say that we are cooperating with foreign law enforcement on foreign bribery cases more closely today than at any time in history’. This sentiment was echoed in a 17 April 2015 keynote address by Assistant Attorney General Leslie R Caldwell, who noted that the Justice Department’s fraud and corruption-related investigations ‘are increasingly global in nature’.
iii) What are the biggest opportunities and challenges for practitioners and clients?
The past year’s FCPA cases show both a continued focus on corporate conduct as well as an increase in the number of charges against individuals. The Justice Department has recently issued a memorandum formally addressing the agency’s determination to prioritise investigating and prosecuting individuals for corporate conduct. The FCPA investigation and enforcement focus over the past year has cut across a range of industries including: natural resources and energy, defence contracting, engineering and construction and the automotive industrial sector. In December 2014, the Justice Department announced criminal plea agreements with subsidiaries of French power company Alstom SA that included a US$772,290,000 criminal fine, the largest resolution, by dollar amount, in Justice Department history in the FCPA context. Meanwhile, the Securities and Exchange Commission (SEC) has settled a steady stream of corporate FCPA enforcement actions. In so doing, the SEC has continued to make use of in-house administrative proceedings – in addition to filing civil complaints in federal district courts – to effectuate its FCPA enforcement mandate.
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