Corporate Crime update – Autumn 2019

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.

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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.

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ESMA publishes Report on licensing of FinTech business models

On 12 July, the European and Securities Markets Authority (ESMA) published its Report on the licensing of FinTech business models (the Report) as part of the European Commission’s wider FinTech Action Plan. While ESMA concluded in its report that it was not necessary to put forward any recommendations to the European Commission to adapt the current financial services legislative framework to address innovative business models in the FinTech industry, the Report did set out some of the key challenges National Competent Authorities (NCAs) are facing in regulating FinTech firms.

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Product Intervention Powers and Design and Distribution Obligations in Financial Services: A Cross-Border Perspective

Authors: Hannah Cassidy, Clive Cunningham, Natalie Curtis, Javier de Carlos, Katherine Dillon, Matthias Gippert, Leopoldo Gonzalez Echenique, Vincent Hatton, Patricia Horton, Pierre Le Ninivin, Kai Liebrich, Natasha Mir, Stuart Paterson, Fiona Smedley, Jenny Stainsby, Jennifer Xue

Many regulators view their ability to intervene as one of their key supervisory tools to reduce harm in cases where there is a risk of significant consumer detriment or threat to financial markets.

At the same time, many jurisdictions have put in place product governance regimes for financial services firms which aim to avoid, or at least mitigate from an early stage, any potential risks of failure to comply with investor protection rules. In particular, the design and distribution obligations under these product governance regimes aim to overcome the limitations of disclosure and ensure that firms which manufacture and distribute financial products take some responsibility and adopt a more targeted customer-centric approach.

The stages of development, level of detail, scope and coverage of regulators’ product intervention powers, and the product design and distribution obligations under product governance regimes, vary across jurisdictions.

Our guide (which can be found here) summarises the frameworks in selected jurisdictions, allowing a high-level comparison of the different regimes and offering a glimpse of the direction of travel.

KEY CONTACTS

Clive Cunningham
Clive Cunningham
Partner, London
+44 20 7466 2278
Fiona Smedley
Fiona Smedley
Partner, Sydney
+61 2 9225 5828
Hannah Cassidy
Hannah Cassidy
Partner, Hong Kong
+852 21014133
Natalie Curtis
Natalie Curtis
Partner, Singapore
+65 6868 9805

EU adopts new sanctions framework targeting external cyber-attacks

Authors: Susannah Cogman, Daniel Hudson and Hannah Lau

On 17 May, the EU adopted legislation which will enable it to impose sanctions against persons and entities who engage in cyber-attacks against the EU and its member states. The sanctions will be designed “to deter and respond to cyber-attacks with a significant effect which constitute an external threat to the EU and its Member States”. The new regime underlines a clear commitment by the EU to continue to strengthen its capability to address its “[concern] at the rise of malicious behaviour in cyberspace”.

BACKGROUND

In recent years, the EU has taken a series of actions to tackle cyber threats. On 19 June 2017, the EU developed a framework for a joint response to malicious cyber threats (known as the “Cyber Diplomacy Toolbox”), and subsequent implementing guidelines envisaged sanctions as one of the tools available. The timing of the announcement of the new regime is also notable given its proximity to the EU Parliament elections which started on 23 May.

Reported concerns amongst officials from the EU and certain member states in the past have related to hacking incidents or threats linked to China, Russia and North Korea. However, the legislation explicitly states that the imposition of sanctions against a person or entity does not amount to attribution of responsibility to a third state, which is a political decision.

SCOPE OF THE SANCTIONS REGIME

The sanctions will target persons involved in cyber-attacks with a significant effect which constitute an external threat to the EU and/or its member states. It also covers attempted attacks with a potentially significant effect.

“External”

Cyber-attacks constituting an external threat include those which:

  1. originate, or are carried out, from outside the EU;
  2. use infrastructure outside the EU;
  3. are carried out by any person or entity established or operating outside the EU; or
  4. are carried out with the support, at the direction of or under the control of any person or entity operating outside the EU.

“Threat to member states or the EU”

Attacks which are a threat to member states are envisaged to be cyber-attacks targeting: (a) critical infrastructure; (b) social and economic services (such as in the energy, health and financial markets sector); (c) critical state functions (such as areas of defence and public elections); and (d) classified information.

Threats to the EU include cyber-attacks carried out against its various institutions and its common security and defence policy (“CFSP”). The legislation also reserves the right to apply sanctions in relation to cyber-attacks against third States and international organisations where deemed necessary to achieve CFSP objectives, giving it a potentially broad scope.

“Significant effect”

Whether an attack has a “significant effect” will depend on a range of factors including the scale of disruption, the number of persons or entities concerned, the loss caused, and the nature of the data stolen.

Who can be penalised

There is a broad scope for those who could be listed. The sanctions could target individuals or entities who:

  1. carry out (attempted) cyber-attacks;
  2. provide financial, technical or material support for such attacks including facilitating such attacks by action or omission; or
  3. are associated with those in (a) or (b) above.

The type of sanctions imposed

The sanctions available will include a ban on any listed persons from travelling to the EU and asset freezes. EU persons and entities will also be forbidden from making funds or economic resources available directly or indirectly to those listed.

PRACTICAL CONSIDERATIONS

The new regime emphasises the continuing willingness of the EU to use sanctions to address concerns, noting the similarity of these sanctions to recent EU sanctions aimed at targeting the use of chemical weapons. While no one has yet been listed under this framework, there is a continuing need for companies to ensure that they have thorough, up-to-date and ongoing screening to identify any listed persons they might directly or indirectly deal with.

It is noted that the UK government has said that in the event of a “no deal” Brexit, it will look to carry over all EU sanctions through regulations made under the Sanctions and Anti-Money Laundering Act 2018, in order to ensure a smooth transition. These UK regulations will come into force on 11 June 2019.

Susannah Cogman
Susannah Cogman
Partner, London
+44 20 7466 2580
Daniel Hudson
Daniel Hudson
Partner, London
+44 20 7466 2470
Hannah Lau
Hannah Lau
Associate, London
+44 20 7466 2314
Andrew Moir
Andrew Moir
Partner, London
+44 20 7466 2773
Elena Hogg
Elena Hogg
Associate, London
+44 20 7466 2590

The month ahead in financial services regulatory developments…

In this blog post, we round-up forthcoming developments in the UK and at EU and International levels in financial services regulation for June 2019.

3 Jun
5 Jun
8-9 Jun
  • G20 ministerial meetings:
    • finance ministers and central bank governors (Fukuoka, Japan)
    • trade and digital economy (Tsubuka, Japan)
10 Jun
11 Jun
12 Jun
13-14 Jun
14 Jun
15-16 Jun
19-20 Jun
20-21 Jun
21 Jun
26 Jun
27 Jun
28-29 Jun
29 Jun
  • Deadline for responses to the European Securities and Markets Authority (ESMA) CP on ELTIF RTS
By 30 Jun
End Jun
Jun
Jun/Jul
Jun-Aug

Corporate Crime Update – Winter 2019

Welcome to the Winter 2019 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.

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