The absence of attorney-client privilege protections in Japan means that regulatory investigations must be handled with particular care. Various industry parties have argued that the absence of such protections unfairly damages the interests of companies active in Japan. However, the government has refused to introduce such protections out of concern that they could limit the regulators' broad investigative powers or otherwise adversely affect the Japanese regulatory environment.
With few Foreign Corrupt Practices Act (FCPA) corruption investigations resolved under the Trump administration's watch, it is too early to weigh up how the administration will affect enforcement or settlements in the long term. On its face, the new FCPA Corporate Enforcement Policy signals a more business-friendly approach by removing the spectre of a monitor in many situations and by committing to a presumption of a declination in certain circumstances.
Transparency International recently published the 2017 Corruption Perceptions Index, which reflects the public sector corruption perspective of non-governmental organisations and representatives of the business world. Turkey came 81st out of 180 countries. This is the fourth consecutive year in which Turkey's ranking has fallen; it has lost 10 points and fallen 28 places over the past five years.
If the evaluation of a whistleblower report is completed without taking fundamental steps or necessary planning, it may result in an improper investigation and the inability to resolve the issue, or even the undertaking of an unnecessary investigation. It is therefore vital to adopt a policy on how to evaluate and treat future whistleblowers, inform employees accordingly and train decision makers in the company.
The Federal Supreme Court recently rendered a landmark decision preventing the Swiss Federal Tax Administration from transmitting un-redacted bank files to the US Internal Revenue Service (IRS) which contained information on third parties which had allegedly helped a US taxpayer to defraud the IRS. What is of particular interest to white collar crime practitioners is the emphasis put on the distinction between administrative assistance in tax matters versus legal assistance in criminal matters.
Although corruption in the ranks of Nigerian judicial officers has long been considered an issue, the authorities have been accused of lacking any genuine desire to address the problem. Although the National Judicial Council occasionally penalised judges, no judges were prosecuted. All that changed in 2016, when a number of Nigerian judges were arrested on suspicion of corruption. More recently, the Court of Appeal dismissed corruption charges against another Federal High Court judge.
German businesses have steadily expanded their compliance structures and internal training programmes and have never been in a better position than they are now. However, declining support for compliance issues among management is giving compliance officers cause for concern, and recent compliance scandals appear to indicate that further work is necessary to make management fully acknowledge the significance of compliance matters.
Companies now have even greater incentives to have strong, meaningful Foreign Corrupt Practices Act compliance programmes. When the deputy attorney general recently announced the new enforcement policy that will guide the US Department of Justice, he made it clear that the government wants to create incentives for companies to police themselves when it comes to bribery and corruption.
In a recent case, the Supreme Court stated that the test for dishonesty in fraud and other acquisitive offences – known as the 'Ghosh test' – did not correctly represent the law. Although this case was decided on principles of civil law, it arguably has further reaching implications as it represents a fundamental change to a basic tenet of criminal law and means that judges in future criminal trials will be required to give a different jury direction when summing up cases involving dishonesty.
In August 2017 the Financial Reporting Council launched a consultation on amendments to its Guidance on the Strategic Report, which encourages businesses to consider a number of issues, including non-financial reporting. The guidance was first published in 2014, but is being revised in light of new regulations that came into effect for reporting periods commencing January 1 2017.
Following the judgment in the Serious Fraud Office's (SFO's) declaratory relief application against the Eurasian Natural Resources Corporation, it appeared that the mining company would have to disclose documents which it claimed were subject to legal professional privilege. The judgment was widely scrutinised because of the impact that many expected it to have on the conduct of internal investigations and dealings with the SFO.
In July 2017 the Financial Conduct Authority notified RBS plc that it had commenced an investigation into RBS's compliance with the Money Laundering Regulations 2007. The investigation concerned a number of UK and US companies and the passing of huge sums of Russian money through British banks. In addition to RBS, 16 other UK-based financial institutions and certain US banks were allegedly involved in the scheme.
The Serious Fraud Office (SFO) Annual Report for the year 2016-2017 will be the last report overseen by David Green, who is due to step down as director in April 2018. In 2017 12 new criminal investigations were opened, with Airbus and Unaoil joining the list of high-profile investigations. The report provides an overview of the SFO's performance, covering matters such as stakeholder engagement, digital and technological capabilities and the statistical analysis of casework.
When the Federal Ministry of Finance's new whistleblowing programme was announced, an issue was identified with regard to the lack of clarity around how rewards will be calculated. Following this, there has recently been significant controversy surrounding a reward which may have been paid to an informant following the recovery of approximately $43 million under the programme. If the matter proceeds to litigation, it may provide some indication as to how the programme is actually being implemented.
In July 2017 the Supreme Court published its judgment in a case concerning the reporting of an individual's name, which had been mentioned during trial proceedings to which he was not a party. The individual had been arrested in respect of similar offences for which others were on trial, but a charging decision over him had not been made before the trial's commencement.
Under new anti-money laundering legislation, the list of activities classed as relevant financial businesses has been expanded. Unregulated investment funds and some insurance entities have now been given a grace period until May 31 2018 to establish anti-money laundering compliance programmes. This is a welcome move, particularly for unregulated investment funds which were not bound by the preceding regulations and therefore may not have policies and procedures in place.
Following media reports accusing the Nigerian Securities and Exchange Commission director general and two other senior officials of serious financial impropriety, the Federal Ministry of Finance recently announced the suspension of the accused officials pending investigations into the accusations. Regardless of whether the allegations are true, the commission has come under pressure in the past two years due to an increase in the number of market crises, which critics have attributed to failures in oversight.
In July 2017 the Serious Fraud Office (SFO) opened investigations into the oil services company Amec Foster Wheeler Plc and the Rio Tinto mining group. One month later, the SFO announced that it would investigate corruption allegations against British American Tobacco Plc. Although the SFO did not give any further details, the tobacco giant had announced in February 2017 that it was investigating claims that it had bribed officials in East Africa to undermine anti-smoking laws.
In the aftermath of the fourth mutual evaluation of Switzerland's dispositive to combat money laundering and terrorist financing by the Financial Action Task Force, the Swiss Financial Markets Supervisory Authority recently published a draft amendment to its Anti-money Laundering Ordinance. The amendment will result in a significant increase of compliance work for all financial intermediaries.
The president recently approved in full a bill passed by Congress that will substantially change the existing punitive rules for crimes and misconduct carried out within the capital and financial markets. The new law introduces some relevant changes to the rules through which the Central Bank and the Securities Commission may punish offences and to the definitions and scope of application of certain financial crimes and wrongdoings, such as insider trading and market manipulation.