When a company conducts an internal investigation in respect of a potential regulatory issue, it will wish to maximise the extent to which materials produced in connection with the investigation are protected by privilege. If privilege is protected from the outset, the company can then determine the extent to which privileged materials should be withheld from regulators or the extent to which the company will waive the privilege.
Scott Balber, John O’Donnell and Elizabeth Head have published an article which examines the differences in approach to privilege issues under US and English law, and suggests some measures companies can take to maximise the privilege protections in the conduct of internal investigations. Click here to download a copy of the article, “Cross-border overview: maximising privilege protection under US and English law“, which is an extract from Global Investigations Review’s The Investigations Review of the Americas 2016.
Filed under Americas, UK, US
The Scottish Crown Office and Procurator Fiscal Service announced on 25 September 2015 the first disposal of an offence under section 7 of the Bribery Act 2010. Section 7 was a new offence introduced under the Bribery Act 2010 to some controversy as it made the failure to prevent bribery by an associated person a criminal offence. The case was disposed of by way of a civil recovery order under the Proceeds of Crime Act 2002 in consideration of the Defendant’s decision to self-report to the authorities and its extensive investigation into the incident, which allowed the Defendant to avoid prosecution.
Welcome to the September 2015 edition of our corporate crime update – our round up of developments in relation to corruption, money laundering, fraud, sanctions and related matters. Our update now covers a number of jurisdictions. For the full update on each jurisdiction, please click on the name of the jurisdiction below. Below we provide a brief overview of what is covered in each update. Continue reading
Filed under Americas, Asia, Australia, Bribery and Corruption, China, Corporate Crime, EU, Europe, France, Hong Kong, India, Indonesia, Japan, JURISDICTIONS, Korea, Pakistan, Thailand, US, Vietnam
The Office of Gas and Electricity Markets (Ofgem) issued an open letter to draw to the attention of wholesale market participants its views on:
- behaviour that it has observed in the UK market which may constitute market manipulation;
- issues in relation to the publishing of inside information; and
- the upcoming deadlines for registration and transaction reporting.
The letter should be viewed by wholesale market participants as a warning – effectively the drawing of a line in the sand – which, if unheeded, may well be followed by enforcement action. The regulator has plainly already engaged with some participants about these issues, which were identified through monitoring and investigation, and is now recommending that firms take stock of their approach to compliance with the Regulation on wholesale energy market integrity and transparency (EU) No 1227/2011 (REMIT) in the light of this and other published guidance. Continue reading
The US has taken further steps towards normal trade relations with Cuba by amending the Cuban Assets Control Regulations in order to relax US sanctions against Cuba. These actions follow other important milestones achieved since US President Barack Obama and Cuban President Raul Castro announced the normalization process on December 17, 2014. For example, the countries have resumed full diplomatic relations, the US has removed Cuba from its list of state sponsors of terrorism, and the US has allowed the Cuban government to open a bank account in the US. Despite this liberalization of relations with Cuba, it is important to note that a majority of the prohibitions against investment in, trade with, or travel to Cuba for persons subject to US jurisdiction remain in place. Continue reading
Tim Parkes is to become Chair of the FCA’s Regulatory Decisions Committee (RDC) and the Payment Systems Regulator’s Enforcement Decisions Committee (EDC) in January 2016. He has been a partner at Herbert Smith Freehills LLP for more than 28 years, after serving 10 years as an associate and articled clerk. As a commercial disputes solicitor in the areas of litigation, arbitration and alternative dispute resolution, he practised in both London and Hong Kong, dealing most recently with complex, high-value disputes arising out of the global financial crisis, often involving regulatory considerations. Continue reading
The PRA is consulting on a draft statement of policy setting out its approach to ring-fencing transfer schemes (RFTS), and the FCA on guidance. Continue reading
On 29 August 2015, the National People’s Congress enacted the Ninth Amendments to the PRC Criminal Law. The enactment followed two rounds of public consultation, for which draft amendments were released in November 2014 and July 2015. The amendments will become effective on 1 November 2015. Continue reading
The US Department of Justice (“DOJ”), in a memorandum issued to all federal prosecutors on Wednesday September 9, 2015, directed prosecutors to focus on seeking accountability from culpable individuals in their investigations of corporate wrongdoing. Additionally, the memorandum emphasized that corporations would be required to provide evidence concerning the individuals responsible for wrongdoing, Continue reading
The Australian Government has made and registered a critical Regulation dealing with mandatory clearing of derivatives and an exemption allowing certain single-sided reporting. Continue reading