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 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 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 resolve international probes successfully and manage government enforcers and 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 enforcers’ 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 made available online at www.globalinvestigationsreview.com and in other digital formats.
Volume I, which is bracketed by comprehensive tables of law and a thematic index, has been revised to reflect developments during the past year. These range from the introduction of compliance certifications now being required by the US Department of Justice from chief executive officers and chief compliance officers, at the conclusion of a monitorship, to the effect that the company’s compliance programme is, broadly speaking, fit for purpose, to the DOJ’s recent statements regarding its interest in corporate compensation systems that incentivise compliance by rewarding good behaviour and clawing back compensation for wrongdoing; to changes being brought about in the United Kingdom by the long-awaited Economic Crime (Transparency and Enforcement) Act 2022, whose introduction was accelerated by Russia’s invasion of Ukraine on 24 February 2022. Most notable of the changes introduced was the removal of the requirement for the UK sanctions regulator, the Office for Financial Sanctions Implementation, to show that a person knew, or had reasonable cause to suspect, that they were in breach of sanctions, for a civil monetary penalty to be imposed, bringing the UK legal position into line with the position in the United States. Together with the increase in the sanctions targeting Russia, and a sharpened regulatory focus on sanctions controls, we can expect to see greater enforcement for breaches. Having expanded Volume I for the 2022 edition to incorporate ESG, we decided against commissioning further chapters. Instead we have chosen to consolidate and build on some of the newer chapters featuring rapid developments.
The questionnaire for Volume II continues to allow readers to gauge the developments in each jurisdiction profiled. It carries regional overviews that give insight into cultural issues and regional coordination by authorities. The second volume now covers 25 jurisdictions in Africa, 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, Luke Tolaini, Celeste Koeleveld, F Joseph Warin and Winston Y Chan
London, New York, San Francisco and Washington, DC