Boards and senior executives have never been more concerned that they or their organisation may come under the scrutiny of enforcement authorities. And with good reason. Recent years have seen an upsurge in confidence among enforcement authorities across the globe, which has manifested and led to increased numbers of investigations, fines of unprecedented orders of magnitude and senior executives facing the much more realistic prospect of investigations concerning their own conduct and, in some cases, prosecution, conviction and imprisonment.
In many jurisdictions, the introduction of new offences and changes to the law of corporate criminal liability have provided enforcement authorities with increased opportunities to pursue criminal investigations and ultimately to prosecute corporate entities. Coupled with this has been the incentivisation of corporates to co-operate with investigations and provide information to assist authorities in pursuing culpable individuals through negotiated settlements. In some jurisdictions, notably the United States, co-operation is an established feature of the enforcement landscape and is regularly used to bring investigations to a pragmatic conclusion without the commercially destructive consequences prosecution of a corporate entity can bring. In others, such as the United Kingdom and France, legislation enabling corporates to conclude investigations short of prosecution is still comparatively young.
The law relating to criminal and regulatory investigations shows no sign of standing still. Law and practice across the globe has changed, often in response to highly publicised scandals. Relationships between enforcement authorities continue to grow closer, and there is a marked trend in politicians, prosecutors and regulators carefully watching the way other jurisdictions choose to combat corporate crime, as they assess the most effective mechanisms to apply in their own national contexts. Recent examples of changes to legislation in terms of either extending corporate criminal liability or legislating for its resolution through deferred prosecution agreements (or both) include significant changes being made in Singapore, Japan, Canada, Australia and Ireland at the time of writing. A similar trend may be observed in the regulatory sphere through the implementation of individual accountability regimes modelled on or drawing from the UK Senior Managers and Certification Regime in, for example, Hong Kong, Australia and Singapore.
All these macro factors, together with important changes to technical local legislation (e.g., the EU General Data Protection Regulation), present numerous, significant challenges to corporates and individuals around the world. They can quickly find themselves the target of fast-moving and far-reaching investigations, whose possible outcomes may vary significantly in different jurisdictions.
In Volume II of this Guide, which now covers 25 jurisdictions, local experts from national jurisdictions respond to a common set of questions designed to identify the local – continually evolving – nuances of law and process that practitioners are likely to encounter in responding to the increasing number of cross-border investigations they face. For the first time, Volume II includes four regional overviews: Asia-Pacific, Europe, Latin America and North America.
Judith Seddon, Eleanor Davison, Christopher J Morvillo, Michael Bowes QC,
Luke Tolaini, Ama A Adams, Tara McGrath
London, New York and Washington, DC
1 Judith Seddon and Ama A Adams are partners at Ropes & Gray LLP; Christopher J Morvillo and Luke Tolaini are partners and Tara McGrath is a senior associate at Clifford Chance; Eleanor Davison is a barrister at Fountain Court Chambers; and Michael Bowes QC is a barrister at Outer Temple Chambers.