Cross-Border Investigations: Navigating International Requirements
This article first appeared in the International Comparative Legal Guide to: Corporate Investigations 2021, published on 4 January 2021.
Since the ratification of the 1999 Organisation for Economic Co-operation and Development (“OECD”) Anti-Bribery Convention, signatory nations have stepped up their anti-corruption efforts by enacting and enforcing laws to prosecute companies and individuals involved in wrongdoing. The US were trailblazers, vigorously enforcing the Foreign Corrupt Practices Act (“FCPA”) since the early 2000s, with the UK and France joining the fray with the passage of the Bribery Act in 2011 and Sapin II in 2016, respectively.
It is clear that the investigatory processes and capabilities of each of these three nations’ anti-corruption authorities have evolved significantly. Despite the turbulent nature of 2020, the U.S. Department of Justice (“DOJ”) instituted 23 Deferred Prosecution Agreements (“DPAs”) and four Non-Prosecution Agreements (“NPAs”); the UK’s Serious Fraud Office (“SFO”) entered into three DPAs; whilst the French Parquet National Financier (“PNF”) concluded one convention judicaire d’intérêt public (“CJIP”).1
The Airbus DPA in January 2020 has given a clear indication of the enhanced capabilities of the authorities when working together. The lessons learned and connections developed between the agencies are likely to have a long-lasting influence on the future conduct of corporate investigations. International companies should be aware that an investigation opened by one authority may lead to investigations by others, and that investigatory efforts will likely be increasingly synchronised and unified, with multiple authorities scrutinising such a company’s every move.
In this chapter, we will look at how the US, UK and French anti-corruption agencies conduct investigations; the considerations they take into account when deciding whether or not to prosecute wrongdoing; and the alternative resolutions available to cooperative companies.
1. Standards for Investigation
Each enforcement agency employs its own standards in determining whether and how to initiate an investigation. However, the general principles across all three are substantially similar: they receive information; conduct preliminary inquiries; and weigh up evidential and public interest factors when determining whether a full-blown investigation is warranted. The DOJ prosecutes all US federal criminal matters, including the FCPA.2 The DOJ has taken an expansive and aggressive view on its territorial jurisdiction, and even foreign entities and individuals involved in overseas conduct with minimal US touch-points may be subject to rigorous DOJ scrutiny.3
The Federal Bureau of Investigation (“FBI”) typically conducts preliminary inquiries and can open a full investigation based on a “reasonable indication” of criminal activity, a low bar that is easily cleared.4 Prosecutorial decisions, including whether or not to open an investigation, are guided by the DOJ’s Principles of Federal Prosecution of Business Organizations.5 Prosecutors apply nine factors, including: the nature and seriousness of the offence; the pervasiveness of wrongdoing in the organisation; the organisation’s willingness to cooperate; the organisation’s voluntary disclosure of wrongdoing; and the corporation’s remedial actions. Unlike the DOJ, the SFO does not have a general authority or duty to prosecute crimes in the UK. Instead, the SFO investigates only the most serious and complex fraud, bribery and corruption cases. The SFO is empowered to investigate offences committed anywhere in the world by companies incorporated in the UK, as well as by British citizens or persons who are ordinarily resident in the UK.6
In deciding whether to authorise an investigation, the SFO considers: (1) whether harm may be caused to the public; (2) the reputation and integrity of the UK as an international financial centre; and (3) the economy and prosperity of the UK. It will also consider whether the complexity and nature of the suspected offence warrants the application of the SFO’s specialist skills, powers and capabilities to investigate and prosecute.7
The PNF was created in 2013 to strengthen France’s ability to investigate and prosecute “tax fraud and large-scale economic and financial crime”.8 The PNF focuses on the most complex and serious financial crime, including corruption, misappropriation of public funds, aggravated tax fraud, money laundering and market abuse. It can investigate offences committed on French territory as well as those committed abroad by a person or entity regularly domiciled in France.9
Much like its US and UK counterparts, the PNF can receive initiating information from domestic or foreign authorities, as well as from whistleblowers, self-reports or the media.
2. Conduct of Investigations
The DOJ utilises several tools at its disposal to gather evidence, including wiretaps, informants and cooperating witnesses. It typically conducts investigations through federal law enforcement agencies (such as the FBI) operating in conjunction with grand juries – independent bodies vested with expansive investigative powers tasked with determining if there is probable cause that a federal crime has been committed. Grand jury powers include the ability to compel production of corporate documents and records, and command testimony from anyone within the US. The DOJ can also obtain, via court order, warrants to enter, search and seize materials from premises.
The rules governing grand juries prevent “unreasonable or oppressive” demands for material,10 and grand jury subpoenas require that: (i) requests are relevant to the matter being investigated; (ii) there is a reasonable belief that the requested materials will yield admissible evidence; and (iii) the requests are sufficiently specific to the matter being investigated.11 Moreover, a grand jury cannot demand materials or information that are protected by “recognized constitutional, common law or statutory privileges” such as attorney-client privilege.12
The recipient of a grand jury subpoena may challenge its validity in court, but grand jury powers are broad and courts are loathe to curb them without a clear cause.
The SFO relies on Section 2 of the Criminal Justice Act 1987 to compel persons or entities under investigation, or who are believed to have relevant information, to: (i) answer questions or provide information for any matter relevant to the investigation; and (ii) produce and explain relevant documents.13 In addition, similar to the DOJ, the SFO can obtain court-ordered warrants to enter and search premises, and take possession of documents or other materials relevant to its investigation.
Like the DOJ, the SFO can enlist support from the police in conducting its investigations, thereby accessing more extensive police powers.
The PNF is also assisted by the police or specialised offices such as the OCLCIFF, which focuses on complex international corruption.14
The scope of the PNF’s powers include: (1) conducting compelled interviews, dawn raids and wiretaps; (2) retrieving data held by telecommunications operators; and (3) running undercover operations.
Whilst the Airbus DPA is a prime example of the authorities combining their investigative tool kits, as set forth below, there are a number of areas where diverging processes cause friction and can create dilemmas for both the investigating authorities and those under investigation.
French Blocking Statute
Originally enacted in 1968, the French Blocking Statute (“FBS”) prohibits the disclosure of French commercial information for foreign litigation and administrative purposes. By criminalising French individuals’ and companies’ cooperation with international investigations, the FBS can create significant hurdles for international authorities conducting investigations within France.15 By the same token, the FBS also fosters international cooperation by allowing the PNF to become aware of foreign interest in conduct involving France, open its own parallel investigation, and demand a role in a resulting joint investigation.
While each agency employs their own individual procedures and standards in determining how to resolve investigations, the commonalities can be encapsulated in three overarching factors: (1) the weight and severity of the wrongdoing; (2) the nature and behaviour of the entity; and (3) public policy factors.
The DOJ, when deciding whether to proceed with or decline prosecution, relies on the same nine factors in the Principles of Federal Prosecution of Business Organizations that guide the opening of an investigation. Under these standards, if a company has voluntarily disclosed, fully cooperated, and remediated appropriately, they will likely receive a DPA or NPA absent aggravating factors.16
While a US DPA must be approved by a judge in court proceedings, an NPA is not a publicly filed document and does not require review of a judge or a court; it is simply a letter of agreement between the DOJ and the offending corporate entity.
In the UK, the DPA Code of Practice17 (“the DPA Code”) guides the SFO’s decision on offering a DPA to companies accused of wrongdoing.
In order to enter a DPA, the SFO must apply two tests: (i) the evidential test; and (ii) the public interest test. In order to meet the evidential test, the SFO must show that either: (a) taking into account possible defences, there is sufficient evidence to provide a realistic prospect of conviction; or, that (b) there is a reasonable suspicion based upon some admissible evidence that the company has committed an offence, and there are reasonable grounds for believing that continued investigation would, within a reasonable time, provide sufficient admissible evidence to establish a realistic prospect of conviction.
The SFO must also be satisfied that the public interest is properly served by entering into a DPA rather than proceeding to prosecution. This requires balancing factors in favour of prosecution (for example: a history of similar conduct; failure to notify the authorities within a reasonable time; or significant level of harm caused to the victims or the integrity of markets or government) against those factors opposing prosecution (for example: offering a high level of cooperation; isolated examples of offending; or a change in management or corporate structure).
For a DPA to be approved, it must be considered in a public hearing by a judge, who must conclude that the DPA is in the interests of justice and that its terms are fair, reasonable and proportionate. To ensure full transparency, that judgment will be published along with the DPA.
In France, at the conclusion of an investigation, the Public Prosecutor will decide, based on the findings of the investigation, whether there is sufficient evidence to proceed to trial or whether a company should be offered a CJIP – an option available where that result would be in the public interest and public proceedings have not begun.18
CJIPs must also be validated by a judge during a public hearing. The judge will assess whether the company should be offered a CJIP by determining: (1) whether it is appropriate to enter into a settlement; (2) whether all procedural rules have been followed during the negotiations between the company and the prosecutor; (3) whether the fine imposed is lawful;19 and (4) the fine’s proportionality to the gains derived from the company’s wrongdoing.
4. Considerations for DPA/CJIP
Where a company (and in the US, also individuals) decides that they would rather engage meaningfully with the authorities and secure a DPA/CJIP, rather than risk the uncertainty of potentially lengthy court proceedings, they will need to actively seek to comply with the standards of cooperation set forth by the enforcement agencies.
Self-reporting is one of the most serious and consequential decisions a company can make, and requires extremely careful and informed consideration and an in-depth analysis of the short-, medium- and long-term risks and benefits of doing so. Whilst law enforcement agencies strongly encourage self-reporting, it is not necessarily the right decision and it is possible for a company that did not initially self-report to ultimately obtain a DPA/CJIP if their subsequent cooperation is sufficient.
Cooperation is the essential factor that the authorities will consider when determining whether or not a DPA/CJIP is an appropriate resolution for wrongdoing. As was recently stated by Mr. Justice Davis in his judgment on the application for a UK DPA for G4S Care and Justice Services (UK) Ltd, it is the overall level of cooperation that matters and “initial reluctance to cooperate fully can be dealt with when considering the discount on any financial penalty”.20
For a company to seek to obtain a DPA/CJIP, they will generally be expected to identify suspected wrongdoing and those who committed it, report it within a reasonable time, and preserve and provide available evidence to the authorities.
One area of cooperation where the US deviates somewhat from its UK and French counterparts is with respect to the waiver of legal privilege. In the US, a corporate can cooperate fully with a DOJ investigation without waiving legal privilege. Indeed, DOJ policy specifically forbids prosecutors from suggesting that a corporate under investigation waive privilege,21 and its Corporate Enforcement Policy states that “[e]ligibility for cooperation or voluntary self-disclosure credit is not in any way predicated upon waiver of the attorney-client privilege or work product protection”.22
The SFO, on the other hand, views a corporate’s waiver of privilege over materials generated during the course of an internal investigation as a “strong indicator of cooperation”, favourably impacting its ability to achieve a DPA.23
The PNF asserts that maintaining legal privilege can meaningfully harm a company’s ability to negotiate a CJIP.24 According to the Guidelines issued by the PNF and the Agence française anticorruption (“AFA”), (i) the work product created during an external lawyer’s internal investigation will not be covered by French professional secrecy (“secret professionnel”) as a matter of course; and (ii) a company’s failure to provide documents on grounds of professional secrecy can be viewed as non-cooperation.25
Enforcement authorities in the US, UK, and France have all made clear the importance, and potential benefit, of a robust anti-corruption compliance programme. DOJ Assistant Attorney General, Brian Benczkowski, told the Ethics and Compliance Initiative 2019 Annual Impact Conference that a good compliance programme “is the first line of defense that prevents the misconduct from happening in the first place. And if done right, it has the ability to keep the company off our radar screen entirely”.26 He also noted that even where a compliance programme does not prevent misconduct, it allows for better detection and investigation of the wrongdoing by the government: “At the end of a corporate investigation, prosecutors would weigh heavily the company’s compliance program when determining whether and how to resolve the case.”
The SFO’s compliance programme guidance27 provides that during investigations, the SFO “will need to assess the effectiveness of the organisation’s compliance programme”. In 2019, SFO Director Lisa Osofsky said that “codes that govern prosecutors’ decisions to bring charges instruct us to take into account the existence of effective compliance programmes and speedy self-reporting”.28
The key attributes that the US, UK and French authorities cite as characteristics of a robust anti-corruption compliance programme broadly align, with each authority encouraging a dynamic, tailored, and proportionate programme which implements an internal framework for investigations and compliance violations; provides training to employees; and effectively monitors third parties operating on behalf of the company. Each authority also stresses the need for management to actively promote a culture of compliance.
The DOJ considers the state of a compliance programme, both at the time of the offence and at the time of the charging decision, when deciding whether or not to prosecute. On 1 June 2020, DOJ updated its guidance to prosecutors on how to assess corporate compliance programmes, calling for “a reasonable, individualized determination in each case” of the effectiveness of a company’s compliance programme.
In the UK, Sir Brian Leveson noted in his preliminary judgment of the Sarclad DPA29 that the government made “a policy choice in bringing DPAs into the law of England and Wales, that a company’s shareholders, customers and employees (as well as those with whom it deals) are far better served by self-reporting and putting in place effective compliance structures. When it does so, that openness must be rewarded and be seen to be worthwhile”.
Section 7(2) of the UK’s Bribery Act 2010 also provides a defence to companies which have put in place adequate procedures designed to prevent a bribery offence from being committed. Even where procedures cannot be said to be adequate, the extent to which efforts were made to institute such procedures will be relevant to whether the case merits prosecution, a DPA, or no action.
In France, Sapin II requires companies with over 500 employees and revenues greater than EUR 100 million to implement effective compliance programmes.30 Joint guidance issued by the PNF and AFA31 provides that the effectiveness of a compliance programme will be “carefully examined by prosecutors when considering the possibility of entering into a CJIP”.
An ineffective compliance programme will not preclude the company from obtaining a CJIP, but the company will need to take active steps to demonstrate that it is serious about compliance and is willing to change its culture.
A circular issued by the French Ministry of Justice in June 202032 emphasised the importance of a well-tailored compliance programme in order for a company to be eligible to obtain a CJIP, requiring particular attention be paid to ensure that such programme is adequate and proportionate to the risks faced.
5. DPA/CJIP Implications
Irrespective of the level of cooperation offered by companies to the authorities, the end result of a DPA/CJIP is likely to be a substantial financial penalty. Each of the authorities has their own method of calculating the penalty and making appropriate reductions, as outlined below. In a multijurisdictional investigation, the calculation of the penalty may be influenced by penalties which are to be imposed in different jurisdictions so as to allow for a coordinated global resolution which is fair and proportionate, and which does not provide multiple fines for the same conduct.
The U.S. Sentencing Guidelines33 are the starting point for sentencing determinations. Calculating penalties pursuant to the Guidelines involves consideration of: (1) the offence; (2) the value of the loss; and (3) aggravating and mitigating factors.
Where a company accused of anti-corruption offences is found to have met all the requirements of cooperation for the purposes of a DPA, the DOJ will recommend a “50% reduction off of the low end of the U.S. Sentencing Guidelines fine range, except in the case of a criminal recidivist”. For those who failed to voluntarily disclose misconduct, but “later fully cooperated and timely and appropriately remediated”, the DOJ will recommend “up to a 25% reduction off of the low end” of the U.S. Sentencing Guidelines. To qualify for any reduction, the company must pay any and all disgorgement, forfeiture, and restitution resulting from the misconduct.
The Crime and Courts Act 2013 requires that the value of any fine proposed in a DPA must correspond to the value of a fine that the court might have imposed if the company had pleaded guilty.34 Companies found guilty of bribery of another person, being bribed, or bribery of a foreign public official are guilty of an offence under the Bribery Act and are liable to an unlimited fine. The applicable UK Sentencing Guidelines35 divide the sentencing process into a series of steps. The appropriate level of fine is determined by assessing the gross profit from the contract obtained, retained or sought as a result of the bribery offence (the “harm figure”), then multiplying that figure by a multiplier (between 20–400%) determined by the level of culpability attributable to the company, and the presence of a series of aggravating and mitigating factors.
The Guidelines stipulate that whilst the fine must be sufficiently substantial to have a real economic impact, the court should ensure that the effect of the fine is proportionate to the gravity of the offence, and will take into account whether the fine would have the effect of putting the company out of business.
In addition to the fine component of the overall financial penalty, the company must also disgorge profits made from the offending behaviour, and cover the legal costs of the SFO incurred during the investigation.
The fine element under a DPA may be discounted by up to 50% depending on the level of cooperation provided, compared with the maximum one-third discount generally available for entering an early guilty plea following charge.
In the context of a CJIP, Sapin II imposes a cap on fines at 30% of a company’s average annual revenue over the prior three years.36 The PNF calculates fines as a multiple of the benefit to the company from the criminal conduct, determined by a number of aggravating and mitigating factors. Aggravating factors include: (1) repeated or systemic acts of corruption; (2) the corruption of public officials; (3) prior convictions/sanctions imposed in France or abroad; and (4) the use of the company’s resources to conceal the acts of corruption. Mitigating factors include: (1) self-reporting within a reasonable time; (2) excellent cooperation; (3) the implementation of an effective compliance programme; and (4) remedial measures.
U.S. authorities are the leading proponents of monitorships, with nearly 60% of DOJ corporate resolutions in FCPA cases requiring the appointment of an independent compliance monitor for a set period of time.
However, the U.S. approach to monitorships has changed in recent years, driven in part by the October 2018 memorandum on the “Selection of Monitors in Criminal Division Matters” by Assistant Attorney General Brian A. Benczkowski. The Benczkowski Memorandum recognised the onerous burden and costs that monitorships could create, and instead advocated a regime focused on “whether the proposed scope of a monitor’s role is appropriately tailored to avoid unnecessary burdens to the business’s operations”. Whilst the use of monitorships by the DOJ has not dramatically changed, monitorships with a more limited scope and/or shorter terms have been seen in recent DPAs, such as that agreed with Walmart Inc. in June 2019.
The DOJ generally will not require appointment of a monitor if the corporate has, at the time of resolution, implemented an effective compliance programme. According to Mr. Benczkowski, “[i[n determining whether a monitor is appropriate, we will look to several key factors, most notably, the investments and improvements a company has made to its corporate compliance programme and internal controls and whether remedial measures have been tested for the ability to prevent or detect similar misconduct in the future”.37
In the UK, it is anticipated that under the stewardship of Director Osofsky, a former U.S. prosecutor and a former monitor in private practice, monitorships may become more prevalent in UK DPAs. SFO guidance on evaluating corporate compliance programmes38 released in January 2020 acknowledged that a DPA may still be appropriate if an organisation does not yet have a fully effective compliance programme, because the DPA can be used to require further improvements. In such cases, the DPA will likely require a monitor to allow the prosecutor to assess the expected reforms while the DPA is in force. SFO Guidance published on 23 October 2020 requires a monitorship to be “fair, reasonable and proportionate”.39
The G4S C&J DPA in July 2020 was the first UK DPA to require the appointment of a monitor (in this case, referred to as an external third party “reviewer”) to report on the implementation of compliance measures. The SFO required approval of the reviewer and mandated the format for reporting back to the SFO.
The CJIP Guidelines also provide for ongoing monitoring under a CJIP. Responsibility for monitoring companies registered or operating in France or on French territory is delegated to the AFA,40 and the company can apply for a period of up to three years, pursuant to a five-stage process: (1) the AFA will carry out an initial audit to assess the measures in place within the company to prevent and detect fraud; (2) the company will propose an action plan; (3) the action plan proposed will be approved by the AFA; (4) the AFA will validate the key tools of the anti-corruption programme, carry out targeted audits and prepare annual reports; and (5) the AFA will carry out a final audit and transmit its report to the PNF.
The world’s leading anti-corruption agencies continue to pursue wrongdoing ever more vigorously. Law enforcement processes and procedures long established in the US have been increasingly adopted and adapted by the UK and French authorities, who in turn are influencing the thinking of their American counterparts. The agencies’ relationships continue to evolve and deepen as they work increasingly together and coordinate their practices. Companies need to be cognisant of the nuances of each agency’s enforcement procedures, as well as their respective avenues for resolving investigations.
Changes in working practices and adjustments to normal operating and compliance processes as a result of COVID-19 will no doubt be an area of particular focus for the enforcement agencies as the corporate world begins to recover. Companies can ensure that they are prepared for tough regulator questions by reviewing, adjusting and strengthening their compliance practices to fit changed circumstances, and ensuring that any flaws in the system are recognised in good time.
Where wrongdoing has been discovered, engaging with the authorities in a meaningful way with the intention of obtaining a DPA/CJIP will not be in every company’s interest. However, in the current, aggressive corruption enforcement environment, companies should anticipate increased scrutiny and be ready to navigate multiple legal regimes, enforcement authorities and procedures. Companies with potential liability in multiple jurisdictions should carefully consider their strategy and options at the outset and seek advice from experienced outside counsel.
1) Figures as at 1 November 2020.
2) Justice Manual 9-2.001; 28 U.S.C. § 547, available at https://www.justice.gov/jm/jm-9-2000-authority-us-attorney-criminal-division-mattersprior-approvals.
3) The DOJ’s position is being tested in the courts. In June 2019, a Lebanese citizen alleged to have coordinated USD 200 million in kickbacks was acquitted by a jury. Post-trial polling revealed that the jury acquitted because they could not understand how Brooklyn prosecutors had the authority to prosecute crimes not occurring within their jurisdiction. The jury rejected the prosecutors’ argument that the fact that bribes had passed through the US financial system via correspondent bank accounts was sufficient to establish jurisdiction. See United States v. Boustani, 1:18-cr-00681 (E.D.N.Y.).
4) AG Guidelines, available at https://www.justice.gov/archives/ag/attorney-generals-guidelines-general-crimes-racketeering-enterprise-and-domestic#:~:text=The%20standard%20of%20%22reasonable%20indication,a%20prudent%20investigator%20would%20consider.
5) FCPA Manual, Chapter 5, available at https://www.sec.gov/spotlight/fcpa/fcpa-resource-guide.pdf.
6) Section 12, Bribery Act 2010, available at https://www.legislation.gov.uk/ukpga/2010/23/section/12.
7) Available at https://www.sfo.gov.uk/about-us/.
8) The PNF was created by Law n° 2013-1117 of 6 December 2013 on combatting tax fraud and large-scale economic and financial crime. Also see the CJIP Guidelines, 26 June 2019, available at https://www.agence-francaise-anticorruption.gouv.fr/files/files/Lignes%20directrices%20PNF%20CJIP.pdf.
9) Articles 435-6-2 and 435-11-2 of the French Criminal Code.
10) Rule 17 (c)(2), Federal Rules of Criminal Procedure, available at https://www.federalrulesofcriminalprocedure.org/title-iv/rule-17-subpoena/.
11) See e.g. United States v. Komisaruk, 885 F.2d 490, 494 (9th Cir. 1989). This requirement may also excuse compliance with a subpoena if it would result in violation of a foreign law; see In re Grand Jury Subpoena, 912 F.3d 623, 633 (D.C. Cir. 2019) (holding that compliance with the grand jury subpoena was neither unreasonable nor oppressive because the appellant failed to meet its burden that compliance would be contrary to the foreign state’s laws).
12) In re Grand Jury Matters, 751 F.2d 13, 18 (1st Cir. 1984).
13) SFO Operational Handbook, Section 2 Notice.
14) The Office central de lutte contre la corruption et les infractions financières et fiscales (“OCLCIFF”) teams are trained in accounting, corporate law, public procurement law and other relevant knowledge that is necessary to unravel international financial crime schemes.
15) Punishable by imprisonment of up to six months and/or a fine of up to EUR 18,000 for an individual and EUR 90,000 for a company; Article 3, Law no 68-678 of 26 July 1968: https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000501326/1980-07-17/.
16) Department of Justice Corporate Enforcement Policy, available at https://www.justice.gov/criminal-fraud/file/838416/download.
17) The SFO and Crown Prosecution Service, “Deferred Prosecution Agreements Code of Practice: Crime and Courts Act 2013”, available at https://www.cps.gov.uk/sites/default/files/documents/publications/DPA-COP.pdf.
18) CJIP Guidelines, p. 6, 27 June 2019, available at https://www.agence-francaise-anticorruption.gouv.fr/files/files/EN_Lignes_directrices_CJIP_revAFA%20Final%20(002).pdf.
19) Fines in France are capped at 30% of the annual turnover of a company over the past three years, and any fines exceeding that amount are not permitted.
20) SFO and G4S Care and Justice Services (UK) Limited; Davis J at para. 27 of the judgment, available at https://www.judiciary.uk/wp-content/uploads/2020/07/SFO-v-G4S-Judgment.pdf.
21) Department of Justice, Justice Manual, 9-28.710, available at https://www.justice.gov/jm/jm-9-28000-principles-federal-prosecution-business-organizations.
22) FCPA Corporate Enforcement Policy, p. 4, available at https://www.justice.gov/criminal-fraud/file/838416/download.
23) Lisa Osofsky, Director of the SFO, speaking at the Royal United Services Institute in London on 3 April 2019, available at https://www.sfo.gov.uk/2019/04/03/fighting-fraud-and-corruption-in-a-shrinking-world/.
24) The CJIP is the French equivalent of a DPA and became available following Sapin II. CJIPs are available for companies (but not individuals) in matters of corruption, influence peddling, and laundering of the proceeds of tax fraud and related or connected offences. See CJIP Guidelines, p. 10, 27 June 2019, available at https://www.agence-francaise-anticorruption.gouv.fr/files/files/EN_Lignes_directrices_CJIP_revAFA%20Final%20(002).pdf.
25) CJIP Guidelines, 27 June 2019, available at https://www.agence-francaise-anticorruption.gouv.fr/files/files/EN_Lignes_directrices_CJIP_revAFA%20Final%20(002).pdf.
26) Assistant Attorney General Brian A. Benczkowski, Ethics and Compliance Initiative 2019 Annual Impact Conference (Dallas TX, 30 April 2019), available at https://www.justice.gov/opa/speech/assistant-attorney-general-brian-benczkowski-delivers-keynote-address-ethics-and.
27) “Evaluating a Compliance Programme”, SFO Operational Handbook, available at https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/sfo-operational-handbook/evaluating-a-compliance-programme/ (hereinafter “SFO Guidance”).
28) Lisa Osofsky, Cambridge Symposium on Economic Crime (Cambridge UK, 2 September 2019), available at https://www.sfo.gov.uk/2019/09/02/cambridge-symposium-2019/.
29) Serious Fraud Office v. Sarclad , available at https://www.sfo.gov.uk/download/sarclad-ltd-and-sfo-deferred-prosecution-agreement-judgment/.
30) Article 17, Sapin II.
31) “Guidelines on the Implementation of the Convention Judiciaire Intérêt Public”, AFA, at 7 (20 September 2019), available at https://www.agence-francaise-anticorruption.gouv.fr/fr/traduction-en-anglais-des-lignes-directrices-convention-judiciaire-dinteret-public-elaborees-par.
32) Circulaire de politique pénale en matière de lutte contre la corruption International, French Ministry of Justice (2 June 2020), available at http://www.justice.gouv.fr/bo/2020/20200611/JUSD2007407C.pdf.
33) United States Sentencing Commission, Federal Sentencing Guidelines Manual (2018).
34) Crime and Courts Act 2013, Schedule 17, para. 5(4).
35) The Sentencing Council, “Sentencing Guidelines for use in Crown Court”, available at https://www.sentencingcouncil.org.uk/wp-content/uploads/Fraud-Bribery-and-Money-Laundering-offences-definitive-guideline-Web.pdf.
36) The French Code of Criminal Procedure – Article 41-1-2.
38) SFO, SFO Operational Handbook: Evaluating a Compliance Programme, 17 January 2020.
40) “Guidelines on the Implementation of the Convention Judiciaire D’Interêt Public”, 26 June 2019, at Annex 1.