Preface

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.

The Guide

To aid practitioners faced with the challenges of steering a course through a cross-border investigation, this Guide brings together the perspectives of leading experts from across the globe.

The chapters in Volume I cover, in depth, the broad spectrum of law, practice and procedure applicable to investigations in 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; it discusses strategies to successfully resolve international probes and manage corporate reputation throughout; and it covers the major regulatory and compliance issues that investigations invariably raise.

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 US prosecutors reprising their previously uncompromising approach to pursuing all individuals involved in corporate misconduct and promising a surge in enforcement activity to UK authorities securing a raft of deferred prosecution agreements, some of which remain under reporting restrictions at the time of going to press. For this edition, we have commissioned a new chapter on emerging standards for companies’ ESG – environmental, social and governance – practices. This issue has rocketed to the top of corporate agendas, and raised the eyebrows of legislators and regulators, far and wide. The Editors feel that this is an area to watch closely and that corporate ESG investigations will proliferate in the coming years.

The revised, expanded questionnaire for Volume II includes a new section on ESG issues so readers can gauge the developments in each jurisdiction profiled. Volume II carries regional overviews giving insight into cultural issues and regional coordination by authorities. The second volume now covers 21 jurisdictions in the Americas, the Asia-Pacific region and Europe. 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.

Judith Seddon, Eleanor Davison, Christopher J Morvillo, Michael Bowes KC, Luke Tolaini, Ama A Adams, Celeste Koeleveld
December 2021
London, New York and Washington, DC