The latest update from Herbert Smith's Corporate Crime team.
Bribery and corruption
Delay to full implementation of the Bribery Act 2010The Minister of Justice stated in response to written parliamentary questions (published 18 February) that there will be a delay to both publishing the guidance and full implementation of the Act. He would not comment on how long that delay might be. Mr Clarke stated that he wanted to make sure the guidance was practical and useful for legitimate business and trade and that it would be published once he was confident that it addressed the legitimate concerns of all those who took part in the consultation process. Helpfully Mr Clarke stated that he was determined to ensure that the Act was implemented in a way which tackles corruption but does not impose unnecessary cost and uncertainty on legitimate business and trade.Mr Clarke also stated that the Ministry of Justice's guidance would be published alongside joint prosecution guidance issued by the Director of the SFO and the Director of Public Prosecutions.In addition Mr Clarke confirmed that the Act would only be implemented in full three months after the guidance had been published. Which leaves open the question of whether there may be staged implementation. |
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SFO settles Nigeria bribery case for £7 millionThe SFO has secured a £7m civil recovery order from engineering group, M. W. Kellogg Limited, in a case relating to the payment of bribes undertaken by its parent company and others.According to the SFO press release the SFO recognised that MWKL took no part in the criminal activity which generated the funds. The funds due to MWKL were share dividends payable from profits and revenues generated by contracts obtained by bribery and corruption undertaken by MWKL's parent company and others. The agreement will lead to the payment of £7,028,077 within fourteen days in full and final settlement of the case. This sum represents the share dividends due and the interest which has accrued on these sums.The contracts were awarded to a company partly owned by MWKL on behalf of its US parent company. MWKL reported concerns to the SFO under the "self referral" scheme and fully co-operated with the subsequent investigation. The SFO, working in partnership with the US Department of Justice, reviewed the conduct of MWKL and decided that the most appropriate approach was to remove the funds which will become due to the company through the unlawful conduct. This reflects the finding that MWKL was used by the parent company and was not a willing participant in the corruption.
The US parent company was one of four corporate entities which formed a joint venture to bid for contracts on a liquefied natural gas project in Nigeria. The joint venture created three special purpose vehicles to bid for, and subsequently run, the contracts. Three of the four contracts won by the joint venture were obtained through promises to pay or payments of bribes. The US parent company, Kellogg Brown and Root LLC and its predecessors (KBR) has been subject to a criminal and civil investigation in the US. The criminal investigation, which was conducted by the Department of Justice (DOJ), related to KBR and a number of other corporate and individual parties. KBR has acknowledged, in its plea agreement with the DoJ, that it owned the special purpose vehicle created for the Nigerian project, through MWKL in order to distance itself from the corruption and avoid the consequences of the Foreign Corrupt Practices Act 1977. KBR had resolved all matters with the US authorities, including a civil settlement with the Securities and Exchange Commission, by February 2009. The agreement also ensured that MWKL overhauled its procedures to enable it to satisfy the SFO that its compliance systems are in accordance with UK law. MWKL has also agreed to pay the costs of the investigation. |
Best practices in fighting bribery and corruptionOn 15 February at the ICC Conference hosted by Herbert Smith, Chris Walker, head of policy at the SFO, gave a speech on best practices in fighting bribery and corruption. Mr Walker explained what changes the Bribery Act 2010 would bring about in the way in which corporates and businesses operate, both within the UK and abroad. | |
Speech by Richard Alderman on the Bribery Act 2010 and SFO's approachOn 9 February the SFO published a speech by Richard Alderman, director of the SFO, on the Bribery Act 2010 and the SFO's approach.Key points raised by Mr Alderman include:-
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Terrorist financing/sanctions/money laundering
Bank Mellat v HM Treasury [2011] EWCA Civ 1The Court of Appeal dismissed Bank Mellat's application to set aside the Financial Restrictions (Iran) Order 2009 (SI 2009/2725) (the Order). The bank had contended that the Order was procedurally and substantively unlawful on the basis that the HM Treasury did not give the bank an opportunity to make representations before making the Order directing that all persons operating in the UK financial sector (relevant persons) must not enter into or continue to participate in any transactions or business relationship with Bank Mellat and Islamic Republic of Iran Shipping Lines.The Court of Appeal concluded that the Order was procedurally and substantively lawful. | |
Rollover of restrictive measures on ZimbabweForeign Secretary William Hague has updated Parliament on the EU's decision to rollover the restrictive measures on Zimbabwe. Following an in-depth assessment the UK and its EU partners have unanimously agreed to the renewal of the measures for a further twelve months, whilst removing 35 people from the list of those subject to an EU visa ban and asset freeze on the grounds that they are no longer involved in human rights abuses or undermining democracy or the rule of law. | |
HM Treasury: financial sanctions notification – BelarusHM Treasury has published a notice which adopts Council Regulation (EU) No 84/2011 which amends Council Regulation (EC) No 765/2006, which places certain restrictions, including an asset freeze, on persons responsible for the violations of international electoral standards in the presidential elections in Belarus on 19 December 2010. Regulation 84/2011 came into force on 2 February 2011 and is directly applicable in the UK. | |
HM Treasury: financial sanctions notification - TunisiaHM Treasury has published a notice which adopts Council Regulation (EU) No 101/2011(the Regulation), which places restrictive measures on certain persons, entities and bodies responsible for the misappropriation of Tunisian State funds.The Regulation came into force on 5 February 2011 and is directly applicable in the UK. | |
Release of White Paper on Enterprise-Wide STR SharingThe Egmont Group has published a White Paper on "Enterprise –wide STR Sharing: Issues and Approaches". Mr. Boudewijn Verhelst, the Chair of the Egmont Group of Financial Intelligence Units (FIUs), says the paper will be of interest to all FIUs and jurisdictions, as the major benefits from enterprise-wide STR (suspicious transaction reports) sharing could result in more effective anti-money laundering/combating the financing of terrorism. The White Paper also outlines a series of approaches jurisdictions might take to allow enterprise-wide STR sharing, and considers the implications of each, but does not endorse any particular approach. | |
New legal principle on combating money-laundering in the UAE The Dubai Court of Cassation has established a new legal principle on combating money-laundering. Financial institutions operating in the UAE are now legally obliged to report suspicious transactions related to money laundering to the Central Bank.The court emphasised that the institutions are exempt from any liability stemming from the report of such suspicious transactions as long as it is not proven that the reporting was with bad intent to harm the owner of the account or transaction. |
Market Abuse/Insider dealing/FSA enforcement
Investment banker, his wife and family friend sentenced for insider dealingChristian Littlewood, a senior investment banker and former FSA Approved Person, his wife Angie Littlewood (also known as Siew Yoon Lew and Angie Lew) and a family friend, Helmy Omar Sa'aid, have been sentenced for insider dealing contrary to section 52 of the Criminal Justice Act 1993. The case is the sixth successful prosecution for insider dealing brought by the FSA.
Christian Littlewood was sentenced to three years and four months in custody; Angie Littlewood was sentenced to twelve months in custody suspended for two years; and Helmy Omar Sa’aid was sentenced to two years in custody.
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Corporate finance advisor fined £150,000 and banned for market abuse The Upper Tribunal has unanimously upheld a decision of the FSA that David Massey committed market abuse by short selling 2.5 million shares in Eicom plc on the basis of inside information concerning the availability of discounted shares. | |
Prison sentence for failure to comply with court order obtained by FSA and FSA Francois de Dietrich has been sentenced to an 18 month prison sentence by the High Court in Northern Ireland. The sentence was imposed as a result of Mr de Dietrich's failure to comply with a court order obtained by the FSA, and the FSA's statutory information requests which required the disclosure of information regarding the location of his assets. |
Miscellaneous
First conviction for corporate manslaughterCotswold Geotechnical Holdings is the first corporate entity to be convicted under the Corporate Manslaughter and Corporate Homicide Act 2007. As the corporate entity was a small one, the proceedings did not answer many of the questions concerning how the Act will be applied to large corporate entities. In particular, how, in practice, the court will approach the question of identifying who within a large organisation is to be identified as a "senior manager". This is central to the new offence as senior management failure must be a substantial element in the corporate entity's breach of its duty of care.Cotswold was described in court as being in a "parlous financial state" and therefore the fine of £385,000 indicates that very high fines may be imposed. Mr Justice Field in his sentencing remarks observed that a larger fine would cause the company to be liquidated and that people would lose their jobs. He added "It may well be that the fine in terms of its payment will put this company into liquidation. If that is the case it is unfortunate but unavoidable, but it is a consequence of the serious breach". |
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.