Australia Catching Up with the US and UK on Absolute Criminal Liability Offences for Failing to Prevent Foreign Bribery
A guest post from Robert Wyld and Patrick Cunanan (attorneys with Johnson Winter Slattery in Sydney, Australia).
Currently in Australia, a corporation will not be held criminally responsible for bribery by its employees, agents or officers if it can prove it exercised due diligence to prevent the crime. The process of attribution of criminal liability on a corporation under the Criminal Code Act 1995 (Cth) (Criminal Code) is a complex process and often not easy for a prosecutor to establish. The reforms are in the Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 (Cth), see here, which introduced amendments to the Criminal Code.
Issues To Consider From Britain’s First Conviction Of A Foreign Public Official Under The Bribery Act
Today’s post is from Zulfi Meerza (a lawyer and former prosecutor at financial crime specialists Rahman Ravelli in the United Kingdom) concerning a recent U.K. enforcement action against a foreign public official.
The jail sentence imposed on Romy Andrianarisoa is significant for being the first time a foreign official has been convicted in the UK for bribery.
Andrianarisoa, a former Chief of Staff to the president of Madagascar, and her French associate Philippe Tabuteau were jailed after a trial in London where the evidence included recordings of the two of them soliciting bribes from an undercover officer. Andrianarisoa was sentenced to three years and six months, and Tabuteau was sentenced to two years and three months.
The pair were charged in August 2023 after requesting money in exchange for their help securing an exclusive mining joint venture with the government of Madagascar. They had attempted to solicit a bribe from Gemfields, a UK-based mining company.
MLATs: They Are Not Just For DOJ Any More (Maybe)
Today’s post is from Sara Kropf. A shorter version of this post was published by Bloomberg News on May 14, 2024. (See here).
I’ve written before about the Department of Justice’s questionable tactics in an FCPA case against two former executives for Cognizant Technology Solutions. The two executives eventually lost their bid to suppress certain statements made during an internal investigation interview by the company. But they continue to battle DOJ. Their efforts led the trial judge to take the extraordinary step of effectively forcing DOJ to help the defense secure exculpatory overseas evidence through a mutual legal assistance treaty or MLAT.
The case is an example of how a trial judge can exercise discretion to help ensure a fair trial simply by refusing to take what DOJ lawyers say at face value. It’s also a master class in persistent lawyering; by refusing to abandon the battle to obtain this key evidence, the defense may win the war.
A Q&A About Mutual Legal Assistance Treaties And Letters Rogatory
Today’s post is a Q&A with Markus Funk (Perkins Coie).
Funk authored the second edition of “Mutual Legal Assistance Treaties and Letters Rogatory: Obtaining Evidence and Assistance from Foreign Jurisdictions” recently published by the Federal Judicial Center.
Q: The Federal Judicial Center published the first edition of your guidebook back in 2014. What prompted a second edition?
DOJ’s New Whistleblower Pilot Program Aims to Generate Information About Corporate Wrongdoing, But Numerous Questions Remain
The following Covington attorneys contributed to this post: Steve Fagell, Nancy Kestenbaum, Aaron Lewis, Ashley Nyquist, Adam Studner, and Chas Hamilton.
On March 7, 2024, Deputy Attorney General (“DAG”) Lisa Monaco announced that DOJ is embarking on a “90-day sprint” to develop and implement a pilot program that will provide whistleblowers the chance to receive a monetary award in exchange for new information about “significant corporate or financial misconduct.”