This is an Insight article, written by a selected partner as part of GIR's co-published content. Read more on Insight
The history of the global investigation
For over a decade, the number and profile of multi-agency, multi-jurisdictional regulatory and criminal investigations have risen exponentially. Naturally, this global phenomenon exposes companies – and their employees – to greater risk of hostile encounters with foreign law enforcers and regulators than ever. This is partly owing to the continued globalisation of commerce, the increasing enthusiasm of some prosecutors to use expansive theories of corporate criminal liability to exact exorbitant penalties as a deterrent and public pressure to hold individuals accountable for the misconduct. The globalisation of corporate law enforcement, of course, has also spawned greater coordination between law enforcement agencies, domestically and across borders. As a result, the pace and complexity of cross-border corporate investigations has markedly increased and created an environment in which the potential consequences, direct and collateral, for individuals and businesses, are unprecedented.
To aid practitioners faced with the challenges of steering a course through a cross-border investigation, this book brings together the perspectives of leading experts from across the globe. The chapters in Volume I of the Guide cover in depth the broad spectrum of the law, practice and procedure applicable to cross-border investigations in both the United Kingdom and United States. The Volume tracks the development of a serious allegation (originating from an internal or external source) through all its stages, flagging the key risks and challenges at each step; it provides expert insight into the fact-gathering phase, document preservation and collection, witness interviews, and the complexities of cross-border privilege issues; and it discusses strategies to successfully resolve cross-border probes and manage corporate reputation throughout.
In Volume II, local experts from major jurisdictions across the globe respond to a common and comprehensive set of questions designed to identify the local nuances of law and practice that practitioners may encounter in responding to a cross-border investigation. In the first edition, we signalled our intention to update and expand both parts of the book as the rules evolve and prosecutors’ appetites change. The Guide continues to grow in substance and geographical scope. By its third edition, it had outgrown the original single-book format. The two parts of the Guide now have separate covers, but the hard copy should still be viewed – and used – as a single reference work. All chapters are, of course, made available online and in other digital formats.
Volume I, which is bracketed by comprehensive tables of law and a thematic index, has been wholly revised to reflect developments over the past year. These range from the issuance of clear guidance by US regulators on the enforcement of the foreign anti-corruption statute, in February, to the UK government’s long-awaited (and anticlimactic) response to the 2017 public consultation on corporate criminal liability for economic crime, in November. Recognising the increased US targeting of individuals, organisations and regimes – and with the United Kingdom on the verge of defining its own sanctions independent of EU measures – we have commissioned chapters on sanctions from both jurisdictions’ perspectives.
In addition, areas that previous editions briefly touched on now merit stand-alone treatment: Volume I carries a chapter on extradition, reflecting the continually extending reach of law enforcement through a globally interconnected economy. The supercharging of data protection agency powers, along with the need for corporates in an enforcer’s cross-hairs to safeguard their information, has prompted a comprehensive treatment of cybersecurity. A chapter on compliance programmes and, crucially, their effectiveness rounds off Volume I.
The revised questionnaire for Volume II also includes a question on the emphasis prosecutors place – and the guidance they issue – on effective compliance programmes. Volume II carries regional overviews giving insight into cultural issues and regional coordination by authorities. The second volume now covers 23 jurisdictions, with, in particular, increased coverage in South America, which continues to rake over major corruption scandals. As corporate investigations and enforcer co-operation cross more borders, we anticipate Volume II will become increasingly valuable to our readers: external and in-house counsel; compliance and accounting professionals; and prosecutors and regulators operating in this complex environment.
Readers are advised that as this title went to press, new responses to the coronavirus pandemic continued to be formulated and uncertainties about a Brexit agreement persisted up to the eleventh hour, and both may have a bearing on the topics the Guide covers.
The Editors would especially like to thank Chris Stott, senior attorney at Ropes & Gray LLP in London.
Judith Seddon, Eleanor Davison, Christopher J Morvillo, Michael Bowes KC, Luke Tolaini, Ama A Adams, Tara McGrath
London, New York and Washington, DC