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A Comparative Study Of DPAs

comparison

A guest post from Fred Davis.

The Columbia Journal of Transnational Law recently published my article Judicial Review of Deferred Prosecution Agreements: A Comparative Study, which is available here.

As the title suggests, the article looks at three countries that not only have procedures for corporate DPAs but have actually developed a track record using them (the US, the UK, and France), and also touches on several other countries that have adopted such legislation (Canada,  Singapore) and still others that are contemplating doing so (Ireland, Australia) and countries with somewhat similar approaches (Brazil, Argentina).

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New Chinese Anti-Bribery Guideline Calls For Blacklisting And Expulsion Of Foreign Companies That Pay Bribes In China

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Today’s post is from Dechert attorneys Andrew Boutros, Shriram Harid, David Kelley, Jay Schleppenbach, and Maria Sit.

China’s top anti-corruption watchdogs recently released a new anti-bribery Guideline designed to focus on multi-national corporations and individuals that pay bribes in China, as opposed to bribe recipients, the Chinese Communist Party’s traditional focus. With the threat of being barred from doing business in China, the Guideline raises significant concerns for entities doing business there.

In particular, business organizations should be aware that resolving bribery allegations that involve China elsewhere in the world (say, in the United States) could potentially result in a “carbon copy prosecution” in China with the full range of potentially devastating penalties. Similarly, multi-national corporations that face bribery charges (or even just an investigation) in China could later find themselves prosecuted in the United States or elsewhere in the world based on the same facts.

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US v. Bescond Addresses “Fugitive Disentitlement”: Potential Game Changer For Foreign-Based Defendants Facing US Charges

Judicial Decision

A guest post from DLA Piper attorneys John Hillebrecht, Jessica Masella, Olivia Tourgee and Jennifer Delasco.

In recent years, US prosecutors have increasingly pushed the envelope in bringing criminal charges against non-US professionals who live and work abroad and who may have never set foot in the United States, including for alleged violations of the Foreign Corrupt Practices Act, trade sanctions, the antitrust laws, and other statutes and regulations with extraterritorial implications.

Typically, pursuant to the fugitive disentitlement doctrine, these non-US citizens have not been allowed to challenge such charges unless and until they physically surrender to authorities in the US.

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When Conducting Risk Assessments There Are No Requirements, But Certainly Some Expectations

riskassessment

A guest post from Cuneyt A. Akay (Greenberg Traurig)

Risk assessment…this is one of the most commonly uttered phrases in the FCPA vernacular.  Many companies understand that assessing their risk is the starting point of designing an effective compliance program.

Perhaps this indicates that companies have a growing awareness of the important of compliance and mitigating corruption risk.  Perhaps it means that the DOJ’s and SEC’s continued messaging around “risk-based” and “risk-tailored” compliance is resonating in corporate board rooms and C-suites.

Whatever the reason, risk assessments are often the first thing clients ask me about.  What are the requirements of a risk assessment?  What is expected from my company?  How do I assess my company’s risk?

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Key Issues And Questions Arising From The UK Deferred Prosecution Agreement With Amec Foster Wheeler Energy

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Previous posts herehere, here, here, and here focused on various aspects of the recent U.S. and U.K. enforcement action against Amec Foster Wheeler / John Wood Group.

This guest post by London-based Debevoise attorneys Karolos Seeger, Aisling Cowell, Thomas Jenkins, and Andrew Lee highlights key issues and questions arising from the UK DPA Amec Foster Wheeler Energy Limited (“AFWEL”).

Prosecution of individuals. All of the AFWEL DPA documents contain introductory wording stating that the Court made no findings of fact or assessment of the culpability of any individuals who may have been involved in the company’s wrongdoing. This is the first time a SFO DPA has included this, or equivalent, wording. This statement is likely due to the SFO’s failure to secure the convictions of any individuals who have been prosecuted in connection with previous DPAs, and is therefore intended to avoid prejudicing the position of those who may be prosecuted following the AFWEL DPA. Edis LJ noted documents indicating that senior employees and directors of AFWEL had engaged in corrupt activities, and that SFO decisions about whether to charge them would be made within three months.

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