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 down 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 relations with government enforcers; 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. 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.
The eighth edition of the Guide will be the last to be available in print, but hard copy does have its limitations: the UK government’s surprise announcement of the creation of a civil trade sanctions enforcement body on 11 December 2023 came too late to be included in this edition before we went to press. We have, however, been able to include details of the UK Crown Prosecution Service’s first-ever deferred prosecution agreement, which was approved on 5 December.
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 US Department of Justice issuing revisions to its Corporate Enforcement Policy in January (incentivising robust compliance to prevent misconduct and even stronger cooperation should a crime occur, with the possibility of a declination from prosecutors even if aggravating factors are present) to the UK parliament passing the Economic Crime and Corporate Transparency Act in late October (introducing a new offence for large organisations of failure to prevent fraud and making organisations liable for a list of economic crimes committed by senior management).
Volume II carries regional overviews for Africa, the Asia-Pacific region and Latin America that give insight into cultural issues and regional coordination by authorities. It also carries chapters on 21 countries from the Americas, the Asia-Pacific region and Europe arranged in a comprehensive question-and-answer format, giving readers a detailed view of the practice area in that jurisdiction. As corporate investigations and enforcer cooperation 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