Introduction to Volume II
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 that 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, although significant settlements involving multinationals have demonstrated the abilities of enforcement authorities to reach outside their own jurisdictions and to coordinate to an ever greater extent.
The law relating to criminal and regulatory investigations shows no sign of standing still. Law and practice across the globe have 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 enacted in Germany, Malaysia, Norway and Australia.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, with some 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.
Volume II of this Guide covers 21 jurisdictions in this edition and includes overviews of four regions: Asia-Pacific, Europe, Latin America and North America. Local experts from each national jurisdiction 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.
Judith Seddon and Ama A Adams are partners at Ropes & Gray LLP; Christopher J Morvillo, Luke Tolaini and Celeste Koeleveld are partners at Clifford Chance; Eleanor Davison is a barrister at Fountain Court Chambers; and Michael Bowes KC is a barrister at Outer Temple Chambers.
In Germany, the Ministry of Justice has published a draft bill intended to extend corporations’ liability for certain actions of their executive bodies and employees. The bill failed in 2021, but may be introduced again. Malaysia has introduced corporate liability for corruption offences and there are calls for the introduction of deferred prosecution agreements for companies. Norway has extended corporate criminal liability for certain corruption offences committed by Norwegian companies outside Norway. In December 2019, the Australian Federal Government introduced the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) (CLACCC Bill), which, if enacted, would introduce a new offence of failure to prevent bribery of a foreign public official and a deferred prosecution regime. In April 2020, the Australian Law Reform Commission issued a Report on Corporate Criminal Responsibility – which included consideration of the CLACCC Bill – and made recommendations to Parliament for further reform of corporate criminal liability. The Bill is still being considered.