White-Collar Crime 2020 features 19 jurisdictions. The guide provides expert legal commentary on cross-border co-operation, plea agreements, criminal company law and corporate fraud, bribery and influence peddling, insider dealing, tax fraud, cybercrimes, money laundering, self-disclosure, whistle-blower protection and burden of proof.
Last Updated: October 20, 2020
We are very pleased to present the second edition of Chambers’ Global Practice Guide to White-Collar Crime.
This guide, which compiles the views and opinions of a group of leading practitioners from 19 different countries, is designed to provide lawyers and all other practitioners with an overview of the various systems of repression in the specific field of white-collar crime, practical guidance regarding the application and enforcement of these laws, and insight into potential future developments.
This field includes many subdisciplines that we have tried to cover exhaustively within the present book, such as criminal company law and corporate fraud, anti-bribery law, market abuses, tax fraud regulations, criminal competition law, consumer criminal law, cybercriminality and anti-money laundering law.
White-collar crime legislation and enforcement has developed considerably over the past decade, with a multiplication of the offences related to business practice and a strengthening of prosecution authorities. While commentators had been calling for the decriminalisation of some offences that they considered detrimental to business, it is clearly the opposite stance that has prevailed.
In France, since the creation of the National Financial Prosecutor’s Office in 2013, the institution has been significantly reinforced, with 577 pending proceedings as of 20 January 2020, a record fine of EUR3.7 billion pronounced by the Paris Criminal Court against a Swiss bank for unlawful solicitation of French prospects and aggravated money laundering of the proceeds of tax fraud (this decision not yet being final), and the largest ever convention judiciaire d'intérêt public (the French equivalent of the US deferred prosecution agreement) recently signed by a major manufacturer in the aerospace sector for an amount of more than EUR2.08 billion (out of a three-jurisdiction settlement for a global amount of EUR3.598 billion). France has also seen the number of decisions rendered by the Enforcement Committee of the Financial Markets Authority increase while the Enforcement Committee of the newly created Anti-corruption Agency rendered its second decision on 7 February 2020.
In the United Kingdom, the last three years have seen a number of new investigative tools and criminal offences introduced into the world of white-collar crime through the Criminal Finances Act 2017. These include the Unexplained Wealth Orders and Account Freezing and Forfeiture Orders that have helped a variety of law enforcement agencies to, among other things, freeze bank accounts. This Act also introduced two new offences relating to companies: the failure to prevent the facilitation of UK tax evasion and the facilitation of foreign tax evasion.
Co-operative rather than adversarial regimes
With regard to international trends, the continuing move to a co-operative approach initiated by the US has clearly spread to many other states. The Deferred Prosecution Agreement (DPA) has been used in the US for decades, and its use in the United Kingdom has been increasing since UK law made it available in 2014. Other countries, including France and Singapore, have introduced equivalent tools into their legislation, while Australia is considering it. Even if the specific DPA regime varies from country to country, companies are encouraged to co-operate fully by, for example, informing the authorities of the discovery of wrong-doing, conducting internal investigations, allowing access to all relevant documentation and highlighting key documents to regulators. Even if many people have reservations as to whether DPAs actually encourage businesses to behave ethically, whether they are transparent enough and whether they have a negative impact on concurrent action against individuals, this trend to co-operate and negotiate rather than going through the traditional adversarial regime is growing. A striking illustration: the agreements concluded on 31 January 2020 by a leading manufacturer in the aerospace sector with the French Parquet National Financier (PNF), the UK’s Serious Fraud Office (SFO) and the US Department of Justice (DoJ) in order to resolve investigations into allegations of bribery and corruption, for a total amount of EUR3.598 billion.
From a French perspective, sanctions incurred in the US system for white-collar offences have always been much higher than in our country, especially because of the possibility of cumulative penalties. However, the sanctions pronounced are increasingly severe and more and more in line with American sentences.
Harmonisation and international co-operation
Anti-corruption law, and white-collar criminal law in general, is being harmonised internationally, especially thanks to the great influence of the US Foreign Corrupt Practices Act on the Organization of American States and OECD Conventions.
The introduction of whistle-blower protection legislation in several countries is an example of how white-collar criminal law is increasingly focused on ensuring that employees and citizens more actively detect and report misconduct to authorities.
While substantive rules are becoming more uniform, international co-operation in criminal matters is stronger than ever. While many tools to co-operate on a global scale have been established, the appointment, on 27 July 2020, by the European Council of 22 European Public Prosecutors most clearly reflects the growing desire of European countries not to see their investigations fail because of the complexity and transnational nature of the financial crimes being prosecuted. As another example, in 2019, the French National Financial Prosecutor’s Office issued 160 requests for international assistance and received 85.
The Role of the Practitioner
White-collar crime is increasingly international in scope. For this reason, it is important that practitioners are aware of the different systems of repression across the world and the extra-territorial reach exercised by many enforcement bodies. It will not only allow them to work in their respective jurisdictions but also to extend their reach, including through exchange with colleagues around the world.
As, first of all, criminal lawyers, we never forget that our task is to defend our clients, who remain innocent until proven guilty, even in the "cancel culture" world. In an ever-changing regulatory environment, and given the trends described above, this is a more and more challenging mission. It is also what makes our profession more and more rewarding.
It is therefore our hope that, by virtue of the quality of its contributors, this guide will be viewed as an essential resource by practitioners and that it will help them on their path to success.