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FCPA Flash – A Conversation With Judy Krieg Regarding The U.K.’s DPA Regime – Is It Really A Better Mousetrap?

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Judy Krieg (a U.S. educated lawyer in the U.K. offices of Shepherd and Wedderburn). Krieg recently authored a post titled “UK DPAs – Have We Really Built a Better Mousetrap?” that caught my eye and in the podcast Krieg: discusses the U.K.’s emerging DPA regime; answers the above question; explains why certain recent UK DPAs “have had their accuracy and factual underpinnings questioned;” and opines whether DPAs in the U.K. going forward will be the rule rather than the exception.

FCPA Flash is sponsored by Kroll. Kroll is trusted by companies and compliance officers worldwide to help prevent, detect, and remediate FCPA challenges with scalable, end-to-end compliance solutions: from high-volume third party screening and automated monitoring, to risk-based due diligence, to complex investigations and monitorships.

Checking In Down Under

Australia

Today’s post is from Robert Wyld (Partner, Johnson Winter & Slattery in Sydney). Wyld is the Australia Expert for FCPA Professor.

There have been a number of important developments in Australia over the last few months. The key issues include: (i) false accounting prosecutions arising out of AFP Leighton Holdings investigation; (ii) ASIC’s penalty prosecutions against former senior AWB Ltd executives continue; (iii) proposed model for a Commonwealth Deferred Prosecution Agreement scheme; (iv) proposed amendments to the Commonwealth foreign bribery offence and introduction of new corporate offence of failing to prevent bribery; and (v) AFP and CDPP foreign bribery initiatives

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The U.K.’s DPA With Rolls-Royce Violates OECD Convention Article 5 And Other Observations

observations

Previous posts here and here highlighted the $800 million global resolution of various enforcement actions against Rolls-Royce. As noted in a prior post, the bulk of the $800 million consisted of an approximate $625 million enforcement action by the U.K. Serious Fraud Office that was resolved through a deferred prosecution agreement – only the third DPA executed by the SFO.

This post highlights why the DPA violates Article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions to which the U.K. is a signatory country. The post also contains additional observations about the U.K. DPA.

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Potpourri

Potpourri

Individual FCPA Charges

One reason to read FCPA Professor is to stay ahead of the curve.

For instance, this October 2015 post highlighted alleged bribery at the United Nations charging John Ashe (described as having various positions at the U.N. including serving as the Permanent Representative of Antigua to the U.N. and recently serving as the President of the U.N. General Assembly) and others with a variety of criminal offenses based on allegations that payments were made to Ashe in connection with a U.N. sponsored conference center in Macau, China and to influence business interactions with Antiguan government officials.

The post noted that although the alleged bribery was charged under 18 USC 666 (theft or bribery concerning programs receiving federal funds) on account of the U.N. receiving U.S. federal government funds, Ashe was likely a “foreign official” under the FCPA given that the definition of “foreign official” includes individuals associated with “public international organizations” and the U.N. has been designated as such an organization.

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Attorney General Nominee Jeff Sessions – “I was taught if they violated a law, you charge them. If they didn’t violate the law, you don’t charge them.”

sessions

Non-prosecution agreements and deferred prosecution agreements have distorted many areas of law, perhaps none more than the Foreign Corrupt Practices Act.

As highlighted in the article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement,” since introduced to the FCPA context in 2004, alternative resolution vehicles have become the dominant way the DOJ resolves corporate FCPA scrutiny and serve as an obvious reason for the general increase in FCPA enforcement over the past decade. To the many cheerleaders of increased FCPA enforcement, NPAs and DPAs are thus worthy of applause.

Yet in a legal system based on the rule of law, quality of enforcement is more important than quantity of enforcement. Through empirical data and various case studies, the above article measures the impact NPAs and DPAs have on the quality of FCPA enforcement and concludes that NPAs and DPAs — while resulting in higher quantity of FCPA enforcement — result in lower quality of FCPA enforcement.

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