White Collar Crime updates

Guernsey

Refusal of consent under AML reporting regime: Royal Court weighs in
Ogier
  • Guernsey
  • 20 August 2018

The Financial Intelligence Service's recent refusal to consent to a proposed transaction under Guernsey's anti-money laundering reporting regime has resulted in the Royal Court deciding its first private law action between the person claiming the asset and the financial institution holding it. The decision clarifies the legal framework for determining the source of funds, which will be highly relevant to all regulated entities in Guernsey.


Indonesia

Anti-corruption update: some encouragement for whistleblowers and first-ever prosecution of corporation
Ali Budiardjo, Nugroho, Reksodiputro
  • Indonesia
  • 24 December 2018

A number of anti-corruption developments took place in Indonesia in 2018. For example, the Government Regulation on Public Participation in the Prevention and Suppression of Corruption was issued in order to incentivise more whistleblowers to come forward and encourage public participation in the fight against corruption. Further, the Corruption Eradication Commission brought its first-ever prosecution against a corporation.


Japan

Contributed by Nagashima Ohno & Tsunematsu
New corporate group governance guidelines
  • Japan
  • 28 October 2019

Certain large corporate groups in Japan have been criticised for having antiquated group governance structures that do not provide adequate protection against corporate malfeasance. It has been recognised that poor group design and governance often play at least an indirect role in white collar crime. As part of ongoing efforts to address these issues, the Ministry of Economy, Trade and Industry recently published the Practical Guidelines on Group Governance Systems.

New plea bargaining system in practice
  • Japan
  • 12 August 2019

Since Japan's first plea bargaining system was introduced in June 2018, prosecutors have used plea bargains in two cases, the second of which led to the dramatic arrest of Carlos Ghosn, former CEO and chair of Renault-Nissan, on the tarmac of Haneda Airport in November 2018. The one-year anniversary of the new system therefore seems like an appropriate time to take stock of the first cases and examine the implications for the future.

Whistleblowing certification regime launched
  • Japan
  • 13 May 2019

Over the past decade, a number of significant regulatory and compliance issues have affected large multinationals based in Japan. As such, the Consumer Affairs Agency recently created a certification regime for corporate whistleblowing systems, which is designed to incentivise businesses to voluntarily enhance their own whistleblowing systems and thereby gain the trust of various stakeholders, including shareholders, counterparties and consumers.

Heightened sensitivity in Japan over virtual currencies
  • Japan
  • 01 October 2018

In 2017, following consultations with representatives of the virtual currency (VC) industry, the Act on Payment and Settlement and the Act on the Prevention of Transfer of Criminal Proceeds were amended to require operators of VC exchange businesses to register with the Japanese Financial Services Agency (JFSA). Notably, the amendments reflect the JFSA's desire to implement a risk-based approach with respect to anti-money laundering and terrorist financing.

Are lead managers liable for material misstatements in IPO disclosure documents?
  • Japan
  • 16 July 2018

A recent Tokyo District Court decision was reported to be the first to hold an underwriter liable to investors that purchased shares in a company based on material misstatements in the financial information contained in the statutory disclosure document for a public offering in Japan. However, the Tokyo High Court overturned the district court decision in this regard and concluded that the lead manager was not liable to investors.


Jersey

Reform of civil forfeiture orders
Ogier
  • Jersey
  • 06 August 2018

MONEYVAL's 2015 inspection of Jersey's anti-money laundering regime and its subsequent report issued in May 2016 encouraged Jersey legislators and regulators to actively prosecute more financial crime and, in particular, introduce a non-conviction-based confiscation regime to apply in parallel with the conviction-based system. The Draft Forfeiture of Assets (Civil Proceedings) Jersey Law is a paradigm shift in regulatory approach to achieve the objectives set by MONEYVAL.


Mexico

Companies' criminal and administrative liability
  • Mexico
  • 24 December 2018

Historically, only individuals could commit crimes in Mexico. However, following recent amendments to the Criminal Code and the enactment of the new National Code of Criminal Procedures, companies may now be held criminally liable. As such, the implementation of an integrity policy is crucial for companies. Where a company does not have such a policy and an employee commits a company-related crime, the company may be subject to both criminal and administrative liability.