Workshop A — A Deep Dive into the Grey Areas of the FCPA, UKBA, Sapin II and German Law

Jun 23, 2020 8:30am – 12:00pm

At this practical session, expert faculty members will delve into the complexities and grey areas of the FCPA, UKBA, Sapin II, and German. They will focus on crucial real-life lessons for the industry moving forward as global enforcement intensifies. This working group will provide helpful insights for individual and corporate risk mitigation and how to leverage the lessons learned to enhance compliance programme better and respond to the government’s audit and investigations. Participants will benefit from smaller-group learning, enhanced Q & A, and reference materials prepared by the expert speakers. Topics will include:

The United Kingdom

  • The UK’s new Senior Managers and Certification regime
  • DPAs and Self-reporting: The balance between discounts on financial penalties and effective deterrence.
  • Approaches to individual liability and resolution for the prosecution of individuals
  • Privilege protection: When the SFO expects companies to share written notes of internal investigation interviews
  • Corporate hospitality: where businesses should draw the line between genuine hospitality and excessive generosity, which is, in effect, a bribe?
  • How much cooperation exists between the CPS, SFO, Police, NCA, HMRC, and others?

In the USA

  • Are the FCPA books and records and internal controls provisions limitless? How do you evaluate risk when dealing with SEC and DOJ interpretations that seem capable of stretching to fit the facts of every case?
  • Where is the line between goodwill and bribery? How do you measure the nexus between the provision of something of value and obtaining or retaining business?
  • Who am I? The unique challenges faced by foreign private issuers under the FCPA.

Germany

  • The expansion of bribery offences, e.g., by the so-called business owner model (Geschäftsherren-modell) and specific corruption regulation in the healthcare sector.
  • Increased personal responsibility for compliance matters – Increasing the number of lawsuits and judgments on compliance duties and failures of executive bodies.
  • Introduction of “Corporate Criminal Liability” under the Ministerial draft on the Law of Combating Corporate Crime ("Verbandssanktionengesetz"): What would be the most important consequences for corporations if the draft comes into force?
  • The particular form of "compliance instructions," the certification by "an external body," procedural flexibility such as DPAs

France

  • Key takeaways of the new CJIP Guidelines – what are the French authorities’ expectations of companies? What are the questions still unanswered?
  • AFA’s Enforcement Practices – What does the AFA Sanctions Committee expect? What practices are in breach of the Sanctions Committee’s view?
  • Merger & Acquisition Guidelines published by the AFA – due diligence methodology would be adopted throughout M&A transactions.
  • The reform of the French Blocking Statute, what is the current uncertainty on the content and calendar of the change.