In the United States, it continues to be a rare day when newspaper headlines do not announce criminal or regulatory investigations or prosecutions of major financial institutions and other corporations. Foreign corruption. Financial fraud. Tax evasion. Price fixing. Manipulation of benchmark interest rates and foreign exchange trading. Export controls and other trade sanctions.
This trend has by no means been limited to the United States; while the US government continues to lead the movement to globalise the prosecution of corporations, a number of non-US authorities appear determined to adopt the US model. Parallel corporate investigations in multiple countries increasingly compound the problems for companies, as conflicting statutes, regulations and rules of procedure and evidence make the path to compliance a treacherous one. What is more, government authorities forge their own prosecutorial alliances and share evidence, further complicating a company’s defence. These trends show no sign of abating.
As a result, corporate counsel around the world are increasingly called upon to advise their clients on the implications of criminal and regulatory investigations outside their own jurisdictions. This can be a daunting task, as the practice of criminal law is notorious for following unwritten rules and practices that cannot be gleaned from a simple review of a country’s criminal code. And while nothing can replace the considered advice of an expert local practitioner, a comprehensive review of the corporate investigation practices around the world will find a wide and grateful readership.
Nicolas Bourtin is a litigation partner at Sullivan & Cromwell LLP and the deputy managing partner of Sullivan & Cromwell’s criminal defence and investigations group. His practice focuses on white-collar criminal defence and internal investigations, class action defence, and securities and complex civil litigation. Mr Bourtin has conducted numerous jury trials and has argued frequently before the US Court of Appeals for the Second Circuit. He regularly represents companies and individuals under investigation by the US Department of Justice, the Securities and Exchange Commission, FINRA and other self-regulatory organisations, and state and local prosecutors’ offices. He has extensive experience representing clients located outside the United States in defending against cross-border enforcement investigations. From 2001 until 2005, Mr Bourtin served as an assistant US attorney in the Criminal Division of the US Attorney’s Office for the Eastern District of New York. Mr Bourtin serves, on a pro bono basis, on the Criminal Justice Act panel for the Eastern District of New York. Mr Bourtin received his undergraduate degree magna cum laude from the University of Notre Dame and is a graduate of Columbia Law School, where he was a Harlan Fiske Stone scholar.
The publisher acknowledges and thanks the following for their learned assistance throughout the preparation of this book: