Mixed regulatory fortunes in approaches to economic crime highlighted as law firm Wilmerhale gives status reports.
Proposed reforms in economic crime, which could expand the ‘failure to prevent’ model in the Bribery Act 2010, have ‘ground to a halt’ in the UK, while FCPA in the US has seen another active year, says WilmerHale.
Ground to a halt
In its ‘Global Anti-Bribery Year-in-Review,’ international law firm WilmerHale said there ‘has been little mention of this issue since’ the UK Ministry of Justice published a consultation on corporate liability for economic crime at the beginning of 2017. Although it closed on 31 March that year, it has yet to respond to the submissions. WilmerHale stated that reforms have ‘ground to a halt.’ The MoJ position is that a response would be published ‘in due course,’ and observers expect it to emerge in Springtime. A House of Lords committee tasked with assessing the effectiveness of the 2010 act is currently in the process of drawing up its final report. According to the WilmerHale survey, current figures indicate that so far the act has led to little enforcement activity. The report staes, ‘in the seven years since the act went into force, prosecutors have proceeded against 22 individuals under section 1 (bribing another person) and 13 individuals under section 2 (receiving bribes), while no prosecutions under section 6 (bribery of a foreign public official) have been commenced.’ The report predicts change over the next few months with the Serious Fraud Office's new director Lisa Osofsky in place.
In the US, the report notes 2018 was yet again an active year for foreign corrupt practices act (FCPA) enforcement, demonstrating that US and international governments continue to focus on combating corruption and encouraging compliance at global companies. Below are five key takeaways regarding FCPA enforcement in 2018: Blockbuster resolutions are here to stay; international cooperation and coordinated resolutions continue to occur with regularity and show no sign of abating; multiple DOJ policy changes in 2018 appear corporation friendly on their face, but time will tell how much practical effect they have; the judiciary handed the enforcement agencies some losses that resulted in a narrowing of the agencies’ jurisdictional and charging theories; after a few off years, prosecutions of individuals are at near-record levels; and, as large resolutions and global scandals proliferate the DOJ continues to prioritise punishing individual wrongdoers and they are likely to continue. The report can be read here.