International Co-Operation In Investigations

Author:Ms Anna Gaudoin
Profession:WilmerHale
 
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In recent years, the rise of multi-jurisdictional investigations and corresponding multi-jurisdictional settlements has changed the enforcement landscape. Notable examples include the tri-lateral settlements of Odebrecht and Rolls-Royce, at the end of 2016 and beginning of 2017, respectively. More recently, Airbus has been under the scrutiny of the UK Serious Fraud Office ("SFO"), France's Parque National Financier ("PNF") and the US Department of Justice ("DOJ"). But why the rise in co-operation, and what does it mean for the future of investigation and enforcement?

The globalisation of financial crime

Two main factors are contributing to the increasingly international nature of crime. Firstly, the criminal conduct itself is becoming more global, routinely spanning a number of countries; and secondly, the government is reaching further when legislating in this field, creating more offences with extra-territorial effect.

The international nature of criminal conduct, driven by the international nature of business, has profoundly affected the criminal landscape. The increasing globalisation of corruption and financial crime has been evident for some time. Increasing international trade, coupled with the rise in technology and the ease of communication and travel have made the world a much smaller place than it once was. This, in turn, has resulted in an uptick in criminal conduct which is not simply confined to one jurisdiction.

Aside from the spread of more "traditional" financial crimes such as bribery, new developments in the nature of criminal activity mean that cross-border crimes are increasingly common. A prime example of this is cybercrime. Instances of cyberattacks have skyrocketed in recent years - notable examples include the notorious Panama and Paradise Papers - yet many of these attacks originate outside the jurisdiction of their target, hampering investigation. Co-operation is needed between the investigating enforcement agency and the agencies which may, in practice, have far better access to the necessary evidence.

Moreover, the advent of new legislation designed to place the burden on companies to prevent crimes associated with them, regardless of where in the world they are perpetrated - the so-called "failure to prevent" offences - is expanding the government's enforcement reach. For example, the government's guidance on the Criminal Finances Act 2017 (which introduces offences of failure to prevent facilitation of tax evasion) states...

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