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The U.K. Deferred Prosecution Agreement Regime: Aligning Rhetoric And Reality

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A guest post from David Corker (a Partner at Corker Binning Corker in London).

The cornerstone of the Deferred Prosecution Agreement (‘DPA’) regime in our jurisdiction is the centrality of the court. At the start of both his preliminary and final judgments delivered in the first DPA in 2015, Leveson P intended that his affirmation of this principle would become, as indeed it has, axiomatic. Almost every subsequent judgment endorsing a DPA has recited his words about the indispensable judicial role. Opening her 32-page judgment concerning the Airbus DPA in 2020[1], for example, Sharp P (Sir Brian’s successor as head of the Queen’s Bench Division) reproduced (paras 7 and 8) the relevant passages in full.

For this article this extract provides sufficient colour:

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Where’s All the Action?

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Today’s post is from Cuneyt Akay (Greenberg Traurig).

2021 is off to a slow start…at least in terms of FCPA corporate enforcement.  The DOJ has only announced one corporate settlement so far in 2021, and the SEC has had no corporate enforcement cases.

Many prognosticators were predicting big things for FCPA enforcement in 2021.  A perfect storm was brewing for 2021 FCPA enforcement.  Corporate enforcement set a record in 2019, which was then eclipsed in 2020.  Financial and economic crises, such as the current conditions caused by the COVID-19 pandemic, tend to increase corruption.  In addition, due to government investigations and proceedings being slowed down and paused for a good portion of 2020, the general consensus was that some enforcement actions would carry over into 2021.  On top of that, many anticipated a new administration would even be more active in pursuing enforcement of financial crimes and corporate fraud prosecutions.

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Tax Deductions For FCPA Settlement Amounts

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A guest post today from Ropes & Gray attorneys Ryan Rohlfsen, Kat Gregor, Yana Grishkan, and Elizabeth Smith.

The amounts paid to the government pursuant to Foreign Corrupt Practices Act resolutions typically include criminal penalties and civil fines, including disgorgement or forfeiture of ill-gotten gains.  Unsurprisingly, a significant question companies face when making payments to the government to resolve alleged FCPA violations is whether any portion of the payments is deductible for tax purposes.

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Checking In Down Under

Australia

Today’s post is from Robert Wyld (Partner, Johnson Winter & Slattery in Sydney) and covers recent developments from Australia in the general area of foreign bribery and commercial crime.

The key issues that are covered include: Current Foreign Bribery Prosecutions; Reforms to Foreign Bribery Laws; The New Corporate Foreign Bribery Offence; The Proposed Commonwealth DPA Scheme; Foreign Bribery Test – Dishonesty or Improper Influence; Reforms to Principles of Corporate Criminal Responsibility.

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