4 Hogan Lovells
2018 in three minutes
For the most part, 2018 will see countries do more to enforce their anti-bribery and
corruption laws. How authorities plan to go about this — from cooperating with
foreign counterparts to adapting others’ regimes — differs by jurisdiction.
There’s no catch-all advice we can give. But we can share our lawyers’ insights on
areas that might affect you and what to watch out for. In terms of what you should do,
we’d need to talk.
To date, the Trump administration has kept up
enforcement of the U.S. Foreign Corrupt Practices
Act (FCPA) cases that began under the Obama
administration. The real test, of course, will come when
new cases arise. If the result is more of the same, big
settlements remain a prospect, too.
Seven of the 13 corporate enforcement actions by
the U.S. Department of Justice (DOJ) and the U.S.
Securities and Exchange Commission (SEC) in 2017
involved non-U.S. companies. This backs up the Trump
administration’s promise to counter foreign corruption.
And if this continues — there are few signs it won’t —
individuals and foreign companies beware. See p. 6,
“New administration, same policy? Only time will tell.”
More than half DOJ’s 35 deferred prosecution
agreements (DPAs) and non-prosecution agreements
in 2016 saw companies hire monitors. See p. 10,
“Joint or dual monitorships — the finer points.” Six
out of 13 settlements with DOJ and the SEC resulted
in appointing monitors. These were mostly where
the companies’ internal controls had failed. Use of
monitors is here to stay.
Worldwide take up of the DPA regime is some way
off, if not unlikely. But as interagency cooperation
and cross-border investigations increase, the UK,
France, and Italy have become a testing ground. With
prosecutors shaping how they’ll work together across
jurisdictions, you need to be aware of emerging DPAs in
Europe and how it might affect you. See p. 14, “Deferred
prosecution agreements in Europe.”
Privilege protection varies: documents protected in
one jurisdiction may not have the same protection
elsewhere. Case law has put privilege in the spotlight in
Germany and the UK. We share steps you should know
and take. See p. 18, “Privilege protection — its limits
and good practice.”
China’s new Anti-Unfair Competition Law redefines
commercial bribery. It has wider coverage — to include
parties with influence over a transaction, for example,
though who these are remains unclear — and increased
penalties. See p. 22, “New law for China, while Hong
Kong continues with high-profile actions.” How it
works in practice won’t be known until we see judges
interpret the law.
International cooperation is up. Authorities and
agencies in countries in Africa and Latin America, for
example, are working with their foreign counterparts
to tackle domestic corruption. See p. 26, “Brazil and
Mexico make strides in anti-corruption enforcement”
and p. 33, “Africa leans toward cooperation.”
This trend in cooperation goes both ways. The U.S.
SEC acknowledged help in FCPA matters from
19 jurisdictions in 2017. Indeed, the larger FCPA
resolutions — Telia Company and Rolls-Royce, to
name two — were made possible through working
with foreign counterparts. Fewer countries now
go it alone, in fact, which makes it harder to