Welcome to the Autumn 2019 edition of our corporate crime update – our round up of developments in relation to corruption, money laundering, fraud, sanctions and related matters. This bumper edition covers a number of jurisdictions, and includes content from the summer break.
Tag: Corporate Crime
Hong Kong SFC publishes licensing conditions for virtual asset fund managers
On 4 October 2019, the Securities and Futures Commission (SFC) published proforma terms and conditions which will apply to virtual asset fund managers that meet specified criteria.
This follows the SFC’s statement of 1 November 2018 regarding the regulatory framework for virtual asset fund managers, fund distributors and trading platform operators (see our e-bulletin of 2 November 2018 for further details), in which the SFC indicated (among other things) that it would impose terms and conditions on certain virtual asset fund managers.
Corporate Crime & Investigations Podcast Episode 2: Suspicious Activity Reports
In our Corporate Crime & Investigations podcast we look to bring you timely and incisive commentary on key developments in the CC&I space.
In this second episode we take a look at the Law Commission’s recent report on the Suspicious Activity Reporting (SAR) regime under the Proceeds of Crime Act 2002 (POCA).
Hong Kong SFC consults on new type 13 regulated activity to regulate depositories of public funds
Last Friday, the Securities and Futures Commission (SFC) launched a consultation on proposals to regulate depositaries (trustees and custodians) of SFC-authorised collective investment schemes (CISs) which are offered to the public in Hong Kong. Responses are required to be submitted by 31 December 2019.
Corporate Criminal Liability and Internal Investigations – Expected Legislative Changes in Germany
In their March 2018 coalition agreement, the coalition partners CDU, CSU and SPD have agreed to establish new rules on criminal sanctions against companies and – for the first time – legal requirements for internal investigations. The agreement already sets out a clear framework and demonstrates a strong political will to tighten the level of sanctions, introduce an obligation to prosecute corporate crimes and create incentives for compliance measures as well as for the assistance in the clarification of criminal offences through internal investigations. The former Federal Justice Minister, Katarina Barley, declared the law reform to be a “priority project”. Following her election to the European Parliament, her successor, Christine Lambrecht, made the draft bill available to a small circle of experts in mid-August 2019 and started the consultation process with the other ministries. The legislative proposal is being discussed extensively in legal practice and academia.
The new regulatory regime for insurance intermediaries in Hong Kong – are you ready for 23 September 2019?
On 23 September 2019, the new statutory regime for the regulation of insurance intermediaries will take effect.
This represents the final stage of implementation of the insurance reforms which established the Insurance Authority (IA) as Hong Kong’s independent insurance regulator. The IA assumed the regulatory responsibilities of the Office of the Commissioner of Insurance in June 2017 and will take over the regulation of insurance intermediaries (agents and brokers) from the three self-regulatory organisations (SROs) on 23 September 2019. On the same day, the requirements relating to the intermediary management function, one of the control functions of an authorised insurer, will also come into effect.
The IA will be responsible for all aspects of regulation of insurance intermediaries, including issuing rules, codes and guidelines, approving licences, monitoring compliance, conducting inspections and investigations, and imposing disciplinary sanctions where breaches have occurred.
In the lead-up to 23 September 2019, authorised insurers and insurance intermediaries should conduct a final review (if they have not already done so) to ensure that they are ready to comply with all relevant requirements under the new regime.
In this e-bulletin, we provide an overview of the new rules, codes and guidelines which will apply under the new regime, as well as the transitional arrangements relating to licensing, approval of key persons in the intermediary management control function, and ongoing complaint and disciplinary cases.
FATF and APG publish long-awaited mutual evaluation report on Hong Kong
Following the Financial Action Task Force (FATF) and the Asia/Pacific Group on Money Laundering’s inspection of Hong Kong in October and November 2018, their much anticipated Mutual Evaluation Report (Report) on Hong Kong was published on 4 September 2019. Our previous bulletin on 25 June 2019 gave early insights into the expected findings.
Indonesia’s KPK ramps up Rolls-Royce investigation with key arrests and charges
Indonesia’s Corruption Eradication Commission (KPK) has charged Emirsyah Satar, the former head of state airline, Garuda, with money laundering and ordered his detention for 20 days. Emir Satar has been caught up in the KPK’s two year investigation, a spin-off of the SFO’s major investigation into Rolls-Royce. The SFO and Singapore’s Corrupt Practices Investigation Bureau have assisted the KPK with its investigation.
President Trump Issues New Executive Order Blocking Property of the Government of Venezuela
On August 5, 2019, President Trump issued a new Executive Order (“EO“), blocking all property and interests in property of the Government of Venezuela (defined to include the Central Bank of Venezuela and Petróleos de Venezuela (“PdVSA“)) in the US or in the possession of US persons. The EO also empowers the Secretary of Treasury, in consultation with the Secretary of State, to block the property and interests in property of individuals or entities that materially assist, sponsor, or provide financial, material, or technological support for, or goods or services to, any “specially designated nationals” (“SDNs“) or blocked persons under the EO, or entities owned, controlled by, or acting on behalf of the foregoing. As is common practice, the US Department of Treasury’s Office of Foreign Assets Control (“OFAC“) has issued revised FAQs and a number of revised and new general licenses (“GLs“) authorizing certain limited activities by US persons involving the Government of Venezuela. These licenses relate primarily to the maintenance or winding down of existing activities with the Government of Venezuela, humanitarian efforts in the country, and other non-commercial and administrative tasks.
The EO follows months of incremental tightening of sanctions on Venezuela, meant to place increased pressure on the Maduro regime, and the expiration of a number of GLs authorizing certain activities in Venezuela. For US persons and companies, the EO further limits their ability to do business in Venezuela if that business involves the Government of Venezuela. For non-US persons and companies, the EO creates a new basis for the imposition of secondary sanctions, authorizing the sanctions designation of non-US persons who engage in material transactions with the Government of Venezuela.
The EO
The EO blocks all property and interests in property, in the US or in the possession of US persons, of the Government of Venezuela, including those entities owned, directly or indirectly, 50 percent or more by the Government of Venezuela (such as the Central Bank of Venezuela, as well as PdVSA). The EO also empowers the Secretary of Treasury, in consultation with the Secretary of State, to block the property and interests in property of individuals or entities that materially assist, sponsor, or provide financial, material, or technological support for, or goods or services to, any SDNs or blocked persons under the EO, or entities owned, controlled by, or acting on behalf of the foregoing.
OFAC’s amended FAQs make clear that the US has stopped short of imposing a full embargo on Venezuela: “US persons are not prohibited from engaging in transactions involving the country or people of Venezuela, provided blocked persons or any conduct prohibited by any other Executive order imposing sanctions measures related to the situation in Venezuela, are not involved.”
General licenses
OFAC has revised several existing GLs to authorize certain transactions that would otherwise be prohibited by the new EO, namely:
- GL 2A, authorizing certain dealings in debt, equity, and securities of PDV Holding, Inc. (“PDVH“) and CITGO Holding, Inc. (“CITGO“);
- GL 3F, authorizing dealings in certain bonds of the Government of Venezuela;
- GL 4C, authorizing certain transactions related to, inter alia, the export and re-export of agricultural commodities, medicine, and medical devices to Venezuela;
- GL 7C, authorizing all transactions and activities with PDVH and CITGO, where they are the only Government of Venezuela entities involved, through January 2021 (subject to renewal), and authorizing those entities to purchase and import petroleum and petroleum products from PdVSA through April 28, 2019;
- GL 8C, authorizing the maintenance of operations or contracts with PdVSA by Chevron Corporation, Halliburton, Schlumberger Limited, Baker Hughes, and Weatherford International through October 25, 2019;
- GL 9E, authorizing certain dealings in the debt or equity of PdVSA;
- GL 10A, authorizing US persons in Venezuela to purchase refined petroleum products from PdVSA for personal, commercial, or humanitarian uses;
- GL 13C, authorizing certain transactions with Nynas AB through October 25, 2019;
- GL 15B, authorizing activities by Mastercard Inc., Visa Inc., American Express Company, Western Union Company, and MoneyGram International with certain Venezuelan banks, through March 22, 2020;
- GL 16B, authorizing transactions related to the maintenance, operation, or closure of accounts of US persons at certain Venezuelan banks, through March 22, 2020;
- GL 18A, authorizing certain transactions relating to the maintenance or operation of Integracion Administradora de Fondos de Ahorro Previsional, S.A.; and
- GL 20A, authorizing certain transactions and activities by specific humanitarian entities involving the Central Bank of Venezuela, through January 2021.
Additionally, OFAC has issued a number of new GLs:
- GL 21, authorizing US financial institutions to debit accounts blocked under the EO or Executive Order 13850 (relating to entities operating in the gold or oil industry) at that institution in payment or reimbursement of normal service charges;
- GL 22, authorizing the provision of certain goods or services in the US to Venezuela’s mission to the UN;
- GL 23, authorizing US depository institutions, registered brokers or dealers, and money transmitters to process funds in relation to the operating expenses or other official business of third-country diplomatic or consular missions in Venezuela;
- GL 24, authorizing all transactions involving the Government of Venezuela incident to the receipt and transmission of telecommunications, and all transactions of common carriers involving the Government of Venezuela incident to the receipt or transmission of mail and packages between the US and Venezuela;
- GL 25, authorizing the exportation or re-exportation from the US or by US persons to or involving the Government of Venezuela of services, software, hardware, and technology incident to the exchange of communications over the Internet (e.g., through instant messaging);
- GL 26, authorizing the provision of certain medical services involving the Government of Venezuela;
- GL 27, authorizing certain transactions in connection with US patent, trademark, copyright, or other intellectual property protection;
- GL 28, authorizing through September 4, 2019, transactions ordinarily incident and necessary to the wind down of operations, contracts, or other agreements involving the Government of Venezuela in effect before August 5, 2019;
- GL 29, authorizing all transactions involving the Government of Venezuela ordinarily incident and necessary to certain activities of non-governmental organizations or “NGOs”;
- GL 30, authorizing all transactions involving the Government of Venezuela ordinarily incident and necessary to the operation or use of ports and airports in Venezuela;
- GL 31, authorizing US persons to engage in all transactions involving the Interim President of Venezuela, Juan Gerardo Guaidó Márquez, and his administration, including the Venezuelan National Assembly;
- GL 32, authorizing US persons in Venezuela to engage in transactions involving the Government of Venezuela prohibited by the EO ordinarily incident and necessary to their personal maintenance in Venezuela (e.g., payment of housing expenses, acquisition of personal goods, payment of taxes or fees, and the purchase of permits, licenses, and public utilities); and
- GL 33, authorizing the payment of fees to the Government of Venezuela related to emergency landings or other air-related medical emergencies.
We continue to monitor developments in this area. Please contact the authors or your usual Herbert Smith Freehills contact for more information.
Susannah Cogman
Partner, London
+44 20 7466 2580
Daniel Hudson
Partner, London
+44 20 7466 2470
Jonathan Cross
Counsel, New York
+1 917 542 7824
Christopher Milazzo
Associate, New York
+1 917 542 7807
Corporate Crime & Investigations Podcast Episode 1: Deferred Prosecution Agreements
In our Corporate Crime & Investigations podcast we look to bring you timely and incisive commentary on key developments in the CC&I space.
In this inaugural episode we take a look at the Deferred Prosecution Agreements (DPAs) landscape. In particular we set in context the latest DPA agreed between the Serious Fraud Office (SFO) and a subsidiary in the Serco Group of companies.