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Latest anti-bribery and corruption developments in the UK and US
Wednesday 22 May

Speakers: Henry Garfield (Partner, London), Aleesha Fowler (Partner, Washington D.C.), Pete Tomczak (Partner, Chicago), Eleanor Wallis (Senior Associate, London), Julian Godfray (Senior Associate, London)

Having not secured a deferred prosecution agreement in respect of U.K. Bribery Act offences since 2021 and having been rocked by a series of shortcomings regarding its investigation and prosecution of cases, the SFO has arguably been at its lowest ebb.

Our panel on Wednesday discussed the daunting task facing the SFO’s new director, Nick Ephgrave, and reflected on the first 9 months of his tenure. The session examined Mr Ephgrave’s background in policing and discussed the SFO’s new strategic priorities: faster investigations, increasing the use of dawn raids and arrests, better use of technology, and continuing to build on relationships with national and international law enforcement partners, such as the U.S. DOJ.

Our speakers discussed recent enforcement cases against corporates, such as Entain PLC, where the first ever deferred prosecution agreement was entered into by the Crown Prosecution Service. We also considered enforcement again individuals, which involved an analysis of the recent acquittal of two individuals in connection with the high-profile GPT corruption case. One of those individuals was represented by Baker & McKenzie.

The panel also examined important legislative changes introduced through the Economic Crime and Corporate Transparency Act 2023, which have changed the U.K. economic crime landscape. This discussion focussed on reforms to the corporate criminal liability principles, which will make it easier to prosecute companies in a range of economic crime areas, and the introduction of a new corporate failure to prevent fraud offence.

From a U.S. perspective, our speakers touched on the key global trends of the past year, including increased corruption related risk, increased cooperation between enforcement agencies across different jurisdictions and the increase of sophisticated anti-bribery legislation.

The panel touched on key U.S. corruption and enforcement trends, such as the DOJ beginning to require forfeiture or disgorgement, an increased use of data analytics, as well discussing where the majority of FCPA cases originate, with China far outstripping other jurisdictions. Our speakers also briefly discussed recent enforcement statistics, recent DOJ corporate resolutions as well as private prosecutions.

The session concluded with a discussion of “what to watch out for in 2024” and finally with speakers commenting on the key areas of convergence and continuing divergence between the U.K. and the U.S approaches to tackling corruption.

You can access the webinar recording here.

Global Enforcement Priorities and Challenges
Thursday 23 May

Speakers: Mini vandePol (Partner, Hong Kong), Nicolai Behr (Partner, Munich), Christopher Kurth (Partner, Zurich), Caroline Pardo (Partner, Bogota), Samir Safar-Aly (Counsel, UAE), Christine Cuthbert (Special Counsel, Hong Kong)

Our speakers discussed three key areas in global enforcement: data, cooperation between authorities and self-disclosure.

Growing restrictions on the transfer of data and a rise in competing laws on data protection and state secrets across jurisdictions have made it important to consider data from the outset of an investigation. While the GDPR standard is common across many jurisdictions, care must also be taken to ensure compliance where the approach may be different.

The speakers considered cooperation between regulators on a domestic and global scale, with a noticeable trend in increased cooperation and information sharing, and the adoption of bilateral treaties between states serving to further entrench such cooperation. 

This session also discussed the intricacies of self-disclosure to a regulator. Self-disclosure can often bring many advantages, however important considerations include timing, content and the potential consequences of self-disclosure. For example, self-disclosure to one regulator may trigger further disclosure to local authorities and, possibly, global enforcement. Multi-jurisdictional companies must also consider whether disclosure to one regulator is best accompanied by disclosure to regulators in other jurisdictions.

Finally, the speakers briefly discussed additional developments in global enforcement, including a rise in procedural AML requirements on companies, an increase in investigations into corruption and fraud and some interesting developments on whistleblowing.

You can access the webinar recording here.

Optimizing the use of data in compliance programmes and investigations
Thursday 23 May

Speakers: Yindi Gesinde (Partner, London), Elizabeth Wilks-Wood (Chief Compliance Officer, Haleon), Adam Shelley (M&A Legal Director, Firmenich), Geoff Martin (Partner, Washington D.C.), Bryan Isbell (Managing Director, GEDA)

Our Thursday evening session on optimizing the use of data in compliance programmes and investigations was broken down into: (i) the proactive use of data in compliance programmes; and (ii) the reactive use of data in internal and government investigations.

The speakers set the scene by looking at the expectations of regulators in the U.K., the U.S. and across Europe, and touched on the tools that these regulators are using in their investigations. Regulators are seeking to use more sophisticated technologies, however the level of sophistication does vary across jurisdictions and even across regulators themselves.

This was followed by discussion around the proactive use of data in compliance programmes to meet the expectations of regulators, for example placing data at the heart of your compliance programmes, thinking creatively about how to best use new sources of data and identifying which new or existing data tools can make approaching these sources of data much more efficient.

From a reactive perspective, our panel discussed how to navigate tricky situations, such as obtaining data outside the custody or control of the company and dealing with stakeholders who may not be quite so tech-savvy. Our speakers also explored the idea of re-using existing data and approaching data collection with a focus on litigation risk.

Our panel then went on to discuss recent enforcement decisions, again focusing on the U.K., U.S. and Europe. This included a string of cases where the DOJ have fined financial institutions for failing to prevent their employees from using off-platform communications systems, such as WhatsApp, in connection with trading activities. From a U.K. perspective, the FCA has itself been actively engaging with a range of institutions on their employees’ device use. The SFO has yet to comment on the use of ephemeral messaging platform, but its existing guidance is clear on its expectations of companies who wish to secure co-operation credit and updates expected to SFO guidance later this year may provide more specificity.

The speakers went on to identify common issues they have faced, for example data privacy issues, before discussing the potential for increased use of Artificial Intelligence. The session concluded with each speaker providing their one “top tip” for the audience to take forward.

The Annual Compliance Conference is held virtually across five weeks from 29 April – 6 June.  Every year it attracts over 4,000 in-house senior legal and compliance professionals from across the world. With a speaker faculty from all regions of our global team, we will be delivering our cutting-edge insights and guidance virtually on key global compliance, investigations and ethics trends. 

To register for the remaining sessions and to access the recordings, click here.

Author

Henry is a partner in the Baker McKenzie Dispute Resolution team based in London, and a member of the Compliance and Investigations group. Henry is an English qualified solicitor. Henry also worked in the San Francisco office for an extended period and has been seconded to the litigation and regulatory investigations team of a well known bank. During his secondment, Henry played a leading role in the internal legal team on a number of high profile investigations and disputes. Henry has also been seconded to the UK Serious Fraud Office, during which he was the Case Lawyer on a high profile and significant multi million pound investigation.

Author

Aleesha Fowler is an associate in the Washington, DC office. She represents domestic and international corporate clients on a range of litigation and compliance matters, including criminal and civil investigations brought by the US Department of Justice and the US Securities and Exchange Commission. She regularly advises clients on white collar criminal matters, and has significant experience in handling investigations that raise issues under the Foreign Corrupt Practices Act and the US False Claims Act. Aleesha's pro bono practice is focused on providing legal advice and representation to incarcerated clients seeking parole and other available remedies.

Author

Peter Tomczak serves as the Chair of Baker McKenzie's North America Litigation and Government Enforcement Practice Group. Peter serves on the North America Pricing Committee, and oversees the practice group's development and review of non-hourly fee based arrangements, or AFAs. He joined Baker McKenzie in 2003, after having served as a law clerk for the Delaware Court of Chancery.

Author

Eleanor is a senior associate in the Dispute Resolution team based in London and a member of the Global Investigations, Compliance & Ethics practice group. Eleanor's practice includes a broad spectrum of disputes and investigations, with a particular focus on white collar-crime, including anti-bribery and corruption, fraud and anti-money laundering. Eleanor’s work involves conducting internal investigations on behalf of clients, as well as external investigations engaging with regulators and enforcement agencies, advising on compliance matters, and criminal defence.

Author

Julian Godfray is a senior associate in Baker McKenzie's Competition, Trade and Foreign Investment Department in London. Julian works in particular in the Firm's market-leading International Trade and Compliance & Investigations practices. Julian joined the Firm as a trainee in September 2014, and qualified in September 2016. Julian has been seconded to two FTSE 100 clients during his time at the Firm, including in the ethics and compliance team of one client. Julian has also completed secondments to the Firm's European and Competition Law Practice in Brussels in 2016, and more recently to the Firm's Madrid office in 2020, working as part of the Firm's trade compliance practice in Spain.

Author

Mini vandePol is the Head of Baker McKenzie's Asia Pacific Investigations, Compliance & Ethics Group, after successfully completing three years as the Global Chair. Mini focuses on anti-bribery and corruption, trade sanctions, fraud and other senior executive misconduct investigations across Asia but most particularly in Hong Kong, China and India. Mini has more than 30 years' experience and is the trusted advisor to the boards and audit committees of the Firm's most significant global clients — assisting them to establish and enhance their risk management programs, assess risks in transactional opportunities and credibly investigate transgressions to support a strong commitment to a culture of compliance. In her previous Global Chair role, she led a team of 900+ compliance and investigations practitioners in Asia Pacific, EMEA, Latin America and North America, which was ranked amongst the Top 10 global investigations firms by Global Investigations Review in 2016, 2017 and 2018. Mini herself has recently been awarded "Woman Lawyer of the Year" in The Macallan ALB Hong Kong Law Awards and "Best in White Collar Crime" Euromoney Asia Women in Business Law Awards in 2019. She is also named as one of the "Top 100 Women in Investigations" by Global Investigations Review. Mini is the Firm's representative assisting the World Economic Forum's Partnering Against Corruption Initiative (PACI) and a member of the WEF's Global Future Council.

Author

Nicolai is a partner in the Dispute Resolution group of Baker McKenzie, a member of the Global Investigations, Compliance and Ethics Steering Committee and co-heads the Investigations, Compliance and Ethics practice in Germany. Nicolai is a regular speaker and author on compliance, white collar crime, innovation and legal tech topics. He is the inventor of the automated risk assessment and risk monitoring platform Compliance Cockpit and the founder of Global Compliance News. Nicolai is the editor of the knowledge platforms Compliance Lexikon and Litigation Lexikon.

Author

Christoph Kurth heads the Investigations, Compliance & Ethics practice of the Swiss offices. Further, he is a member of the EMEA Steering Committee Compliance & Investigations and co-leads the EMEA Financial Institutions Industry Group. He has been recognized by Legal 500 as a leading individual for compliance, regulatory and investigation matters. Before joining the Firm, Christoph was global head of Litigation & Investigations and general counsel in Asia for a large Swiss bank. For over 10 years, he has led complex regulatory and criminal investigations as well as high stakes litigation across the US, Europe and Asia, and has advised on transformational regulatory developments and wealth management products and services across Switzerland and Asia. In his roles, Christoph has worked closely with business leaders, government authorities and the media, navigating businesses through regulatory and other challenges. Prior to this, Christoph was a litigator in leading practices in Switzerland and the US. Christoph also teaches post-graduate courses in 'Crisis Management' and 'Risk Governance' at the Europa Institute at the University of Zurich.

Author

Carolina Pardo joined Baker McKenzie in 1994 and is a Partner of the Firm since 2008. She is currently a member of the Global Steering Committee for the Firm’s TMT industry group and of the Global Steering Committee for the Firm’s Investigation, Compliance and Ethics Group. She was a member of the Global Steering Committee for the Firm’s Global Antitrust and Competition from 2016 and until 2020 and is currently a member of the Latam's Antitrust Steering Committee.
She graduated as a lawyer and a specialist in International Contracts Law from Universidad de los Andes in Bogotá. She obtained a LL.M. with emphasis in International Private Law and Competition Law from the London School of Economics and Political Science.
Over 25 years, she has advised major national and international clients on matters related to compliance with data protection, competition and consumer law rules. She has represented clients in investigations and submissions related to data protection and competition matters in Colombia and has successfully coordinated and prepared white paper proposals to national authorities on behalf of major industrial groups in Colombia.
In 2016 Global Competition Review selected her as one of the 100 most influential women in antitrust. The last two Superintendents of Industry and Commerce have selected Carolina as a Non-Governmental Advisor to the Colombian Antitrust Regulator.

Author

Samir is an English qualified Solicitor of the Senior Courts of England and Wales and a registered Legal Adviser with the Dubai Government Legal Affairs Department. He is a counsel in the Firm’s Financial Regulatory and Investigations, Compliance & Ethics (IC&E) practices based in Dubai as well as FinTech and AI lead in the Middle East and North Africa (MENA), with ten years’ experience in the region.

Author

Christine is a special counsel in the Hong Kong disputes practice, specialising in corporate crime and investigations. She has over 10 years' experience in all forms of contentious work, including cross-border investigations and litigation, as well as other corruption-related matters. She has acted for clients in disputes with regulators and other parties, both through litigation and different forms of dispute resolution, including arbitration, mediation and complex negotiations. She previously worked for another top international firm in its offices in both Hong Kong and Australia.

Author

Yindi is a partner in the Baker McKenzie Dispute Resolution team based in London, and a member of the Compliance and Investigations group. Yindi’s practice includes a broad spectrum of complex and high-value international and domestic commercial litigation for multinational clients, with specialist expertise in anti-bribery and corruption investigations, compliance and trust disputes.

Author

Geoff Martin is a partner in the Litigation and Government Enforcement practice group in Washington, DC. Geoff started his career in Baker McKenzie's London office in 2007 and moved to Washington DC in 2012. Geoff represents clients in matters before the federal government arising out of anti-corruption, trade sanctions, fraud, anti-money laundering, national security, and related enforcement actions. He also represents clients in civil and criminal matters in federal court. Geoff has extensive experience conducting internal investigations relating to such matters around the world.

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