Global investigations

Briefings in English - 2010

Multilateral development bank investigations now threaten harsher sanctions and higher costs. Debarments are on the rise and, under a new agreement, several banks have agreed to cross-debar firms debarred by another bank. This briefing outlines the issues and explains how contractors should plan ahead for investigations and protect themselves with up-to-date compliance programs. (July 2010)

Briefings in English - 2009

Following the first trial of a follow-on damages claim before the Competition Appeal Tribunal (CAT), Enron has lost its claim against EWS (Enron Coal Services (In Liquidation) v English Welsh & Scottish Railway [2009] CAT 36). The CAT has emphasised that the decision is dependent on the particular facts of the case, but the judgment shows that the CAT will not simply award damages to claimants without proof that the losses claimed were caused by breaches of competition law found by the regulator. Mere assertion is not enough. This briefing outlines the decision’s implications for businesses involved in follow-on damages claims. (December 2009)

Recent corruption investigations in China involving employees of multinational corporations continue what has been a busy year for Chinese and foreign regulators investigating corrupt practices both at home and abroad. It is therefore timely to survey briefly this year’s developments in anti-corruption laws and investigations in the People’s Republic of China, the UK, the US and Germany. Developments in the UK, US and Germany are relevant to companies conducting business in China because these countries have long-arm jurisdiction to investigate and prosecute corrupt practices overseas. In addition, parent companies in the UK, the US and Germany may be implicated in corruption procedures through the actions of subsidiaries and employees in China. (October 2009)

The Joint Parliamentary Committee established to conduct pre-legislative scrutiny of the draft Bribery Bill has now published a report strongly supporting the Bill. In summary, the Joint Committee: supports the proposed new statutory definition for the offence of bribery; recommends a strict liability test for corporates, subject only to a defence based on the adequacy of a company’s anti-bribery procedures; did not comment on whether a parent company should be liable for the conduct of its subsidiaries; and endorses tough penalties: the legislation must have ‘teeth’. (August 2009)

The EU applies sanctions within the framework of the Common Foreign and Security Policy (CFSP) on an autonomous EU basis or by implementing binding Resolutions of the UN Security Council. The sanctions target governments and non‑state entities, and comprise measures such as arms embargoes, financial restrictions and restrictions on admission. They apply to EU and non-EU nationals doing business within the EU territory. Due to the allocation of powers between the EU and member states the application of sanctions follows a complicated procedure, which may imply the adoption of Common Positions, Council Regulations and Council Decisions, as well as national laws. This briefing gives an overview of the EU sanctions regime currently in place. (July 2009)

Following the promulgation of the PRC Anti Monopoly Law (AML) (which came into effect in August 2008), individuals and small to medium-sized enterprises (SMEs) have been testing how robustly the new law will be enforced. A number of private actions against business giants have been brought under article 50 of the AML. Although no judgments have yet been rendered, the fact that the Chinese courts have allowed a number of these complaints to be filed indicates that the plaintiffs have at least established a prima facie case. Further observation is needed to understand exactly how article 50 of the AML will operate to protect against anti-competitive monopolistic conduct and to what extent therefore it may impact on business practices. (July 2009)

Claimants seeking to recover alleged losses arising from infringements of EC competition law will be able to progress follow-on damages litigation in England, even if appeals are pending against European Commission decisions finding infringement, following the recent ruling in National Grid v ABB. Parties may be required to finalise pleadings, and possibly give some disclosure, but no trial can take place while there are pending appeals. On a similar note, the Court of Appeal has ruled in BCL v BASF that if an appeal relates to a fine only, a claimant will not need permission to bring a damages claim in the Competition Appeal Tribunal. (16 June 2009)

Non-US corporations and financial institutions face an increasing risk of prosecution by US authorities. US criminal jurisdiction has outgrown territorial limits and now impinges on a range of conduct outside the US. This briefing summarises some of the major sources of criminal liability that can apply extraterritorially to non-US companies and financial institutions. (May 2009)

The UK appears likely to continue its shift towards adopting some of the prosecutorial techniques employed in the US, while contemplating legislative reform to facilitate easier corporate convictions. In the light of the current environment, recent corporate scandals and the attendant shift in enforcement priorities, there is little doubt that corporates and financial institutions should anticipate an increased risk of criminal prosecution by both domestic and foreign authorities. (May 2009)

US economic sanctions can have broad and unexpected applications to non-US entities, particularly those with US affiliates or that do substantial business in or with the US. In recent years, the US government has sought substantial criminal penalties against non-US banks and companies that deal with Iran and other targets of US economic sanctions. The prosecutors who bring these cases have broadly asserted US jurisdiction over non-US persons based on limited and indirect contacts with the US. Non-US financial institutions and companies should be aware of these cases if they or their affiliates do business both with the US and with Iran, Iranian state banks or other countries or persons targeted by US sanctions.

Companies based outside the US are well aware that US prosecutors and the Securities and Exchange Commission (SEC) are increasingly seeking to enforce the US Foreign Corrupt Practices Act (FCPA) against non-US entities and individuals. The prosecutors and SEC have adopted very broad interpretations of the FCPA and their jurisdiction over persons and business ctivities outside the US. At the same time, many other countries have adopted or increased their enforcement of similarly broad laws prohibiting foreign bribery. This briefing outlines the key facts and recent developments of which non-US entities need to be aware in relation to US antibribery law and its enforcement. (March 2009)

The Office of Foreign Assets Control (OFAC), within the U.S. Treasury Department, is the primary agency responsible for the administration of U.S. economic sanctions against designated non-U.S. countries, governments and persons. This briefing describes how these sanctions affect non‑U.S. firms. (February 2009)

The Law Commission has proposed sweeping changes to the UK’s law on bribery. This briefing outlines the problems with the current bribery law and how they may be resolved by the proposals. It also highlights the potential implications for businesses should these proposals be enacted and comments on probable next steps. (January 2009)

Briefings in English - 2008

Restitutionary remedies are not available in cartel damages actions. Compensatory damages are an adequate and appropriate remedy. This is the outcome of today’s Court of Appeal ruling in Devenish Nutrition Limited v Sanofi-Aventis SA and others. (14 October 2008)

Transfer pricing is probably the single biggest tax issue facing multinational businesses. Tax administrations have become more innovative and aggressive in challenging cross-border transfer pricing and profit attribution. Each tax administration wants to secure what it considers to be its ‘fair share’ of taxable income. However, the administrations act in a relatively unco-ordinated way – it is rare to find a co-ordinated approach that matches transfer pricing adjustments in one jurisdiction with corresponding adjustments in another. This leaves businesses exposed to parallel investigations and potential double taxation charges. This publication explains the challenges that international businesses face in transfer pricing enquiries in some of the key jurisdictions in which we operate. It also outlines other ‘hot topics’ in the field of tax disputes in each of our key jurisdictions. (October 2008)

Those involved in European Commission cartel investigations may have the possibility of settling early with a 10 per cent discount on their fines now that the Commission has adopted its notice and regulation providing for settlements in appropriate cartel cases. Parties opting for settlement should benefit not only from lower fines, but also from a quicker and less burdensome administrative procedure – although whether a company should opt for settlement in a given case is likely to be a finely balanced decision. (July 2008)

The possibility of individuals serving prison time for cartel activity is now very much a reality in the UK following the sentencing this week of three UK nationals to terms of imprisonment. (June 2008)

The European Commission has put forward some potentially far-reaching and significant suggestions in its White Paper on damages actions for breach of EC Treaty antitrust rules, published on 3 April 2008. It recommends measures aimed at ensuring that all victims of anti-competitive behaviour are able to obtain full compensation for harm suffered. This is to be achieved through a combination of Community and member state action. Comments are invited by 15 July 2008. (April 2008)

Her Majesty’s Revenue and Customs (HMRC) has in recent times adopted a far more aggressive stance towards tax investigations and disputes. HMRC’s main compliance goals are to reduce the perceived ‘tax gap’ and to change what is considered unacceptable taxpayer behaviour in relation to taxation. This brochure briefly explains who we are and what we do in the tax disputes area. More importantly, it explains how we can use our knowledge and experience to help you respond to HMRC enquiries and investigations and to formulate proactive strategies for dealing with HMRC. (March 2008)

This briefing summarises the position and the issues that arise and sets out some of our more relevant experience in this area. Clients who had any involvement with the OFFP should consider taking appropriate preparatory steps in expectation of an approach from the SFO.

Briefings in German - 2009

In Österreich wird seit längerem – und seit der Verschärfung der Finanzkrise noch intensiver – über die gesetzliche Regelung von Massenverfahren diskutiert. Es liegt dazu bereits ein Entwurf zur Änderung der Zivilprozessordnung vor, in deren 5. Abschnitt ein solches Massenverfahren (§§ 619 ff ZPO) eingeführt werden soll. Ziel dieses Entwurfes ist es, Ansprüche einer Vielzahl von Personen, die jeweils in einem engen rechtlichen oder faktischen Zusammenhang stehen, in Hinkunft gebündelt und möglichst ökonomisch im Rahmen eines sogenannten Gruppenverfahrens geltend machen zu können. (März 2009)

Die Europäische Kommission hat am 19. Februar 2009 ein von der Bundesregierung aufgelegtes Programm genehmigt, durch das die Voraussetzungen für die Gewährung zinsverbilligter Darlehen für Unternehmen geschaffen werden. Mit dem Programm soll die durch die aktuelle Finanzkrise verursachte Kreditklemme bekämpft werden. Die Genehmigung war auf der Grundlage des vorübergehenden Gemeinschaftsrahmes für staatliche Beihilfen der Kommission möglich. (März 2009)

Briefings in Japanese - 2010

複数の国で当局（検察を含む）による調査を受けたとき、たは受 けそうなとき、企業は以下の点に注意する必要があります。

Briefings in Chinese - 2009

非美国公司和金融机构被美国有关当局起诉的风险日益增加。美国的刑事管辖权已冲破其国境界限，影响到美国境外的一系列行为。本简介将概述可在域外适用于非美国公司和金融机构之刑事责任的若干主要依据。(Aug 2009)

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