White-Collar Crime 2022

General Overview

We are very pleased to present the fourth edition of the Chambers Global Practice Guide White-Collar Crime.

This guide, which compiles the views and opinions of a group of leading practitioners from 28 different countries, is designed to provide lawyers and all other practitioners with an overview of the various systems of regulation in the specific field of white-collar crime, practical guidance regarding the application and enforcement of these laws, and insight into potential future developments.

This field includes many subdisciplines that we have endeavoured to cover exhaustively within the present guide, such as criminal company law and corporate fraud, anti-bribery law, market abuses, tax fraud regulations, criminal competition law, consumer criminal law, cybercrime and anti-money laundering law.

White-collar crime legislation and enforcement have developed considerably over the past decade, with a multiplication of the offences related to business practice and a strengthening of prosecution authorities. While commentators had been calling for the decriminalisation of some offences that they considered detrimental to business, it is clearly the opposite stance that has prevailed.

France

In France, since the creation of the National Financial Prosecutor’s Office in 2013, the institution has been significantly reinforced, with 636 pending proceedings as of 1 December 2021, cumulative fines of EUR56.5 million for 2021, and the largest ever convention judiciaire d'intérêt public (the French equivalent of the US deferred prosecution agreement) signed by a major manufacturer in the aerospace sector for more than EUR2.08 billion (out of a three-jurisdiction settlement, for a global amount of EUR3.598 billion). France has also seen the number of decisions rendered by the Enforcement Committee of the Financial Markets Authority increase, while the Enforcement Committee of the newly created Anti-corruption Agency rendered its third decision on 7 July 2021.

The UK

In the UK, the last few years have seen a number of new investigative tools and criminal offences introduced into the world of white-collar crime through the Criminal Finances Act 2017. These include Unexplained Wealth Orders and Account Freezing and Forfeiture Orders, which have helped a variety of law enforcement agencies to, among other things, freeze bank accounts. This Act also introduced two new offences relating to companies: the failure to prevent the facilitation of UK tax evasion, and the facilitation of foreign tax evasion. Moreover, on 26 April 2021, the UK implemented a new sanctions regime – set out in the Global Anti-Corruption Sanctions Regulations 2021 – that allows the UK government to impose asset freezes and travel bans on individuals and entities determined to have committed or been involved in serious corruption.

International Trends

Co-operative rather than adversarial regimes

The continuing move to a co-operative approach initiated by the USA has clearly spread to many other states. The deferred prosecution agreement (DPA) has been used in the USA for decades, and its use in the UK has been increasing since UK law made it available in 2014. Other countries, including France and Singapore, have introduced equivalent tools into their legislation, while Australia is considering doing so. Even if the specific DPA regime varies from country to country, companies are encouraged to co-operate fully by, for example, informing the authorities of the discovery of wrongdoing, conducting internal investigations, allowing access to all relevant documentation and highlighting key documents to regulators.

Even if many people have reservations as to whether DPAs actually encourage businesses to behave ethically, whether they are transparent enough and whether they have a negative impact on concurrent action against individuals, this trend to co-operate and negotiate rather than going through the traditional adversarial regime is growing. A striking illustration is the agreements concluded on 31 January 2020 by a leading manufacturer in the aerospace sector with the French Parquet National Financier, the UK’s Serious Fraud Office and the US Department of Justice in order to resolve investigations into allegations of bribery and corruption, for a total of EUR3.598 billion. Another CJIP was concluded on 31 May 2022 with a major US multinational fast food chain over claims the company diverted income abroad – through abusive practice of royalties – to cut its tax bills. The settlement includes a fine of about EUR508 million and tax payback, as well as penalties of EUR737 million.

Larger sanctions

Sanctions incurred in the US system for white-collar offences have always been much higher than in France, especially because of the possibility of cumulative penalties. However, the sanctions pronounced in France are increasingly severe and more and more in line with US sentences. Total criminal fines imposed over the past four years are as follows:

• EUR296.4 million in 2018;
• EUR4.261 billion in 2019, because of a record fine of EUR3.7 billion pronounced by the Paris Criminal Court against a Swiss bank for unlawful solicitation of French prospects and aggravated money laundering of the proceeds of tax fraud, reduced to EUR3.7 million by the Paris Court of Appeal;
• EUR2,091 billion in 2020; and
• EUR56.5 million for 2021.

In Australia, where the trend is the same, the government is looking to pass new laws, whose most important changes will be an increase in the term of imprisonment for criminal offences and larger financial penalties for both criminal offences and civil contraventions.

Harmonisation and international co-operation

Anti-corruption law, and white-collar criminal law in general, is being harmonised internationally, due especially to the influence of the US Foreign Corrupt Practices Act on the Organization of American States and OECD Conventions.

Moreover, more and more companies are contributing to such harmonisation by adopting, on their own initiative, international standards, such as the ISO 37001 standard for the implementation of an Anti-Bribery Management System.

The introduction of whistle-blower protection legislation in several countries is an example of how white-collar criminal law is increasingly focused on ensuring that employees and citizens more actively detect and report misconduct to authorities.

While substantive rules are becoming more uniform, international co-operation in criminal matters is stronger than ever. While many tools to co-operate on a global scale have been established, the appointment on 27 July 2020 by the European Council of 22 European public prosecutors most clearly reflects the growing desire of European countries not to see their investigations fail because of the complexity and transnational nature of the financial crimes being prosecuted. As another example, in 2021 the French National Financial Prosecutor’s Office issued 57 requests for international assistance and received 90.

The Role of the Practitioner

White-collar crime is increasingly international in scope. For this reason, it is important that practitioners are aware of the different systems of regulation across the world and the extraterritorial reach exercised by many enforcement bodies. It will not only allow them to work in their respective jurisdictions but also to extend their reach, including through exchange with colleagues around the world.

As criminal lawyers, we never forget that our first task is to defend our clients, who remain innocent until proven guilty, even in the present "cancel culture" world. In an ever-changing regulatory environment, and given the trends described above, this is a more and more challenging mission. However, it is also what makes our profession so rewarding.

It is therefore our hope that, by virtue of the quality of its contributors, this guide will be viewed as an essential resource by practitioners and will help them on their path to success.