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.