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UK Supreme Court Rules That SFO Cannot Require Foreign Companies To Produce Documents Held Overseas

By on February 9, 2021 in Jurisdiction, Serious Fraud Office, SFO
Judicial Decision

[A guest post from Debevoise & Plimpton attorneys Karolos Seeger, Jane Shvets, Robin Loof, Thomas Jenkins and Andrew Lee]

On February 5th, the UK Supreme Court handed down a highly-anticipated judgment, holding that the Serious Fraud Office (“SFO”) cannot issue a notice (a “section 2 Notice”) under s2(3) of the Criminal Justice Act 1987 (“CJA”) requiring a foreign company with no UK presence to produce material. Basing its decision on international comity, the construction of the CJA and subsequent legislative developments, including the adoption of mutual legal assistance agreements, the UK Supreme Court confined the use of section 2 Notices to UK companies and (possibly) foreign companies established or carrying on business in the UK.

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Potpourri

By on November 2, 2020 in Airline Services Limited, FCPA Sentences, Mark Lambert, Netherlands, Ng Lap Seng, Serious Fraud Office, United Kingdom
Potpourri

Commercial Bribery

The United Kingdom Bribery Act is a more comprehensive statute than the Foreign Corrupt Practices Act. Unlike the FCPA’s anti-bribery provisions which has a required “foreign official” element, the U.K. Bribery Act – including its so-called Section 7 “failure to prevent bribery” offense – is capable of capturing commercial bribery as well.

Last week the United Kingdom Serious Fraud Office announced a Deferred Prosecution Agreement with Airline Services Limited (ASL) “for three counts of failing to prevent bribery arising from the company’s use of an agent to win three contracts … to refit commercial airliners for Lufthansa.”

According to the DPA, “at the time [between 2011 and 2013], notwithstanding the recent passing of the Bribery Act, ASL had made negligible efforts to educate its staff or to introduce processes to identify and counteract occasions of bribery.”

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The UK Serious Fraud Office 2020 Deferred Prosecution Agreement Guidance: Something Old and Something New

By on October 30, 2020 in Deferred Prosecution Agreements, Guest Posts, Serious Fraud Office, SFO, United Kingdom
SFO2

A guest post from Gibson Dunn attorneys Sacha Harber-Kelly and Steve Melrose.

Mr. Harber-Kelly is a former prosecutor at the SFO and was appointed to lead the SFO’s engagement in the cross-governmental working group which devised the DPA legislative framework, and subsequently appointed to draft the DPA Code of Practice, which sets out how prosecutors will operate the DPA regime.

On October 23, 2020, the UK Serious Fraud Office published a new chapter from its internal Operational Handbook, which it describes as “comprehensive guidance on how we approach Deferred Prosecution Agreements (DPAs), and how we engage with companies where a DPA is a prospective outcome.”

At the time of its publication, the Director of the SFO, Lisa Osofsky, remarked, “Publishing this guidance will provide further transparency on what we expect from companies looking to co-operate with us.” Director Osofsky’s full remarks are here.

The 2020 DPA Guidance (“the Guidance”) is here.

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Potpourri

By on July 29, 2020 in Basil Al Jarah, Edward Thiessen, FCPA Sentences, Och-Ziff Capital, Och-Ziff Capital Management, Restitution, Sculptor Capital Management, Serious Fraud Office, SFO, Stephen Whiteley, Unaoil, United Kingdom, Victims, Ziad Akle
Potpourri

Agreement in Principle

As highlighted in prior posts here and here in 2016 hedge fund Och-Ziff resolved a $412 million Foreign Corrupt Practices Act enforcement action concerning improper business practices in various African countries.

As highlighted in this 2018 post, former shareholders of Canadian mining company Africo Resources Ltd. (“Claimants”) sough restitution pursuant to the Mandatory Victims Restitution Act for losses allegedly incurred as a result of Och-Ziff’s bribery of corrupt officials in the Democratic Republic of the Congo.

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An In-Depth Look At The U.K. Prosecution Of Airbus

By on February 6, 2020 in 2020 Enforcement Action, Airbus, Aviation Industry, Ghana, Indonesia, Jurisdiction, Malaysia, Origins of FCPA Actions, Serious Fraud Office, SFO, Sponsorship, Sri Lanka, Taiwan, Third Parties, U.K. Bribery Act, Uncategorized, United Kingdom
airbus

These pages have long asserted that if a country is to have a deferred prosecution regime that the regime in the United Kingdom (which requires meaningful judicial review and approval) is far more preferable than the U.S. regime.

This is apparent when reviewing the Statement of Facts,, Deferred Prosecution Agreement and Approved Judgment relevant to the U.K. Serious Fraud Office prosecution of Airbus. (See here for a collection of the U.K. documents and see here for the prior post regarding the U.S. enforcement action). The U.K. documents provided a substantially more thorough and transparent glimpse into the underlying conduct compared to the U.S. resolution documents.

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