ABA SIL INTERNATIONAL ANTI-CORRUPTION COMMITTEE
MINUTES OF GENERAL MEMBERSHIP CALL
THURSDAY, DECEMBER 15, 2016
Committee Co-Chairs:
Corinne Lammers
Roberto P. Bauzá
John Regis Coogan
[email protected]
[email protected]
[email protected]
John Coogan brought the call to order and chaired. Scott Jansen recorded the minutes.
1.
Introduction
a) The Chair provided a broad overview of the topics of the phone call.
b) The Chair requested members who are on the call to identify themselves by emailing any
of the Committee Co-Chairs so that the minutes can reflect who attended the call.
2.
Overview of the Kleptocracy Asset Recovery Initiative, Mara Senn, Trial Attorney,
USDOJ, Washington DC
a) The US Department of Justice's Kleptocracy Unit, which is part of the International Unit,
Asset Forfeiture and Money Laundering Section (AFMLS), is focused on finding hidden
assets of corrupt foreign leaders in the US (assets include bank accounts, real estate,
planes, and art). The International Unit is focused on the "demand side" of corruption
(compare, the FCPA Unit’s focus on "supply side").
b) Legal standard to seize assets under civil confiscation authority is preponderance of the
evidence of a nexus with the specified illegal activity under US/foreign law (such as
proceeds of the illegal activity). In short, the unit must find the assets; prove that they are
ill-gotten; seize the assets; then find a way to give them back.
c) Unit works with FBI and NGOs and also finds cases through open sources and suspicious
activity reports, among other sources. One open case, for example, involves the 1MDB
sovereign wealth fund of Malaysia and the return of $1+ billion in stolen assets.
http://www.nytimes.com/2016/07/21/world/asia/1mdb-malaysia-us-assetsseized.html?_r=0 ;
https://www.justice.gov/opa/file/877166/download (eg, Wolf of Wall Street
proceeds and other assets)
d) A major challenge is ensuring that recovered moneys are returned to foreign nations in
ways that recovered money benefits the citizens rather than corrupt officials. For nations
with significant corruption issues, the DoJ will work with the World Bank and/or an NGO
to set up programs that benefit citizens. There was discussion and Q&A on various
elements of the challenge of returning proceeds to the source country, including discussion
of how levels of corruption are assessed and channels that might be used for return.
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e) The Kleptocracy Unit is expanding by 7 trial attorneys (they currently have 16 attorneys).
USAJobs announcement for the new Kleptocracy Unit positions:
https://www.usajobs.gov/GetJob/ViewDetails/455824300
4. Sapin II and the new French anti-corruption architecture, Stéphane de Navacelle, Paris
(a) France has continued to focus on anti-corruption issues; the most recent change was Sapin
II legislation, which was adopted in Nov 2016 and enacted in Dec 2016. Among the
developments giving impetus to anti-corruption efforts in France, France’s former budget
minister Jérôme Cahuzac was recently convicted (Dec 2016) of tax fraud and money
laundering for hiding assets in off-shore accounts. He was sentenced to 3 years in prison.
https://www.washingtonpost.com/world/europe/verdict-expected-in-french-budgetministers-tax-scandal/2016/12/08/c9e14700-bd03-11e6-ae79-bec72d34f8
c9_story.html
http://www.nytimes.com/2016/12/08/world/europe/france-jerome-cahuzac-taxevasion.html?_r=0
There had also been relatively little French enforcement of laws on foreign corruption,
notwithstanding French companies paying large fines and being subject to anti-corruption
enforcement elsewhere, notably the United States (Alstom, Total and Technip respectively
paid €683 million, €217 million and €212 million fines to U.S. authorities to settle
anticorruption enforcement actions). Sapin II may be seen in part as a defensive response
to the enforcement efforts of other jurisdictions, among other things by making the French
enforcement position more visible.
(b) Sapin II amended French anti-corruption laws and regulations to bring them into
closer conformity with international standards. Significant portions of the new law were
discussed:
1) the requirement of mandatory compliance programs for companies with 500+
employees or for French or foreign subsidiaries belonging to a group of
companies whose parent company has its headquarters in France and employs
at least 500, and that have an average annual turnover of 100 million euros;
required elements of the compliance program include a code of conduct,
periodic risk assessment, training, and internal controls;
•
Note that Sapin II does not create a compliance affirmative defense (as
in the UK);
2) greater protections for whistleblowers:
•
Obligation for companies with 50+ employees and entities governed by
public law to implement anonymous procedures of reporting
•
Prohibition of disciplinary sanctions for whistleblowers’ reporting of
misconducts within the company
3) establishment of a new French anti-corruption agency, the Agence Française
Anticorruption (AFA)
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•
The new agency will be in charge of:
o rolling out a national anticorruption strategy
o advising both public administrations and private companies
(opinions, guidelines)
o preventing and detecting facts of corruption and monitoring the
implementation of compliance programs
o issuing injunctions to adapt anti-corruption measures and
sanctions up to 1,000,000€
o notifying public prosecutors of facts which may constitute
crimes or misdemeanours
4) elimination of certain French nexus elements previously required for
prosecution of foreign corruption, which may facilitate prosecutions;
5) allowance of deferred prosecution agreements for legal persons.
6) creation of the offense of influence peddling on a foreign public official, as
counterpart to the offense of corruption of foreign public official
7) possibility for associations to initiate public proceedings. The normal process
would only permit victims to initiate complaints, which in cases of cross-border
corruption presents numerous difficulties. This has now been expanded to
permit anti-corruption associations (eg, non-governmental or civil society
organizations) to initiate complaints. If the AFA or PNF do not act, the
association can go to a prosecuting magistrate.
(c) There has also been increased recent focus on internal investigations. France does not
have a history or tradition of internal investigations. The Paris Bar in September 2016
launched an initiative recommending, among other things, a version of an Upjohn warning,
to make clear to employees that counsel represent the company rather than the individual.
However, in France, employees have the right to legal counsel when they might be
exposed to criminal liability personally.
(d) French law already criminalized foreign corruption, and the French anticorruption criminal
prosecution unit (PNF) is staffed and funded and has some 20 cases underway at the
present time. They may be more visible and more effective in the future.
Stéphane's outline was circulated prior to the meeting and is attached, along with the translation of
the communication of the Paris Bar Council of September 2016 on internal investigations (Upjohn
warning).
3.
Call for Proposal for the Fall 2017 Meeting in Miami - deadline 11 January
John noted that the deadline to submit proposals for the International Law Section Fall
2017 meeting is January 11 (the same message was sent out in email to the Committee of
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December 14). Interested individuals should focus on the meeting theme of “Doing Business
in the Americas: A New Dawn in the Hemisphere.”
The Section is strongly encouraging collaboration with other Section Committees. Members
are encouraged to work with other Committees if they have ideas that would overlap with the
subject matter of other Committees. Norman Greene queried whether the encouragement from
the Section to have well-recognized experts as speakers might run counter to the Section's
other aspirations to ensure diversity and voice for under-represented groups.
The Section has asked our Committee to consider programs regarding the current policy
debates around offshore jurisdiction, in the wake of the law firm leaks and attendant publicity
in recent months. Our Committee will be looking at ways to address offshore jurisdictions
without undue overlap with the offshore jurisdiction track at the upcoming Washington Spring
Meeting.
4.
Format for Monthly Committee Conference Calls - joint calls with other Committees?
John mentioned an idea that had recently been proposed to consider an occasional joint
monthly teleconference with another Section committee with similar interests, such as the
International Criminal Law Committee. Norman Greene queried whether joint calls are a good
idea, inasmuch as we can stay abreast of what other Committees are doing by way of liaisons
who might attend their meetings. The consensus on the teleconference was that it is worth
trying as an experiment, so long as the call has a good agenda of mutually interesting topics.
A Committee Co-Chair may be reaching out to another ABA committee for one of our
upcoming monthly teleconferences.
5.
Other Business.
a) The Chair noted that our next call will be held on January 19, 2017.
b) Members were asked to direct any other questions to the Committee Co-Chairs.
c) The call was then adjourned.
Members who identified themselves as participating in the call:
Name
Company
e-mail
Corinne Lammers
Roberto P. Bauzá
John Regis Coogan
Mara Senn
Stéphane de Navacelle
Scott Jansen
Leslie Benton
Kara M. Bombach
Nancy Boswell
Elisabeth Danon
Paul Hastings
Rattagan Macchiavello Arocena
IFC
US DOJ
Navacelle
Georgetown Law
[email protected]
[email protected]
[email protected]
Greenberg Traurig
Washington College of Law
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[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Stuart H. Deming
Deming Group
[email protected]
Fred Einbinder
[email protected]
Porpoise Evans
[email protected]
Frank Anthony Fariello
World Bank
[email protected]
Jack Giraudo
Olin Corporation
[email protected]
Tara K. Giunta
Paul Hastings
[email protected]
Ned Glenn
[email protected]
Norman Greene
[email protected]
Jeanne Hauch
World Bank
[email protected]
Bruce Horowitz
Paz Horowitz
[email protected]
Judy Krieg
Shepherd and Wedderburn LLP
[email protected]
Lesli Ligorner
Simmons & Simmons
[email protected]
Linda Lowson
Global Regulatory Academy
[email protected]
Obiamaka Madubuko
Greenberg Traurig
[email protected]
Philippe Oudinot
Raytheon
[email protected]
Jörg Rehder
Schiedermair
[email protected]
Vivian Robinson
McGuire Woods
[email protected]
Candice C. Shang
Troutman Sanders
[email protected]
Benny Spiewak
ZCBS LLC
[email protected]
Alejandro Staines A.
Calderon y de la Sierra
[email protected]
Alexander S. Vesselinovitch Freeborn & Peters
[email protected]
Ed Wilson
Venable LLP
[email protected]
Severin Ian Wirz
[email protected]
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