White Collar Crime updates

Brazil

Contributed by Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados
Use of settlements and plea deals in wake of new enforcement landscape
  • Brazil
  • 13 August 2018

After years of extensive anti-corruption investigations launched by Operation Car Wash, the national and international legal community have recognised that Brazil's enforcement of regulatory and criminal matters has become stronger than ever. While work is still needed, it is clear that the use of settlements and plea deals in Brazil is here to stay and that these methods have radically changed the local enforcement landscape.


British Virgin Islands

Amended anti-money laundering and terrorist financing code gazetted
  • British Virgin Islands
  • 01 May 2017

Schedule 2 of the Anti-money Laundering and Terrorist Financing Code of Practice 2008 sets out a list of jurisdictions with laws and regulations similar to those of the British Virgin Islands. The principal advantage of relying on Schedule 2 is that business coming from recognised jurisdictions will generally attract the application of reduced client due diligence measures.


Cayman Islands

AHAB v Saad – importance of a particularised and principled tracing claim
  • Cayman Islands
  • 23 July 2018

In Ahmad Hamad Algosaibi & Brothers Company (AHAB) v Saad, the Grand Court found that AHAB's claims, which attempted to trace its funds into the hands of defendant SIFCO5, were "unparticularised and unprincipled". Further, AHAB was unsuccessful in establishing that funds representing traceable proceeds from the Money Exchange reached SIFCO5 or in articulating any discernible cause of action against SIFCO5 in respect of such funds.

Grand Court dismisses multibillion-dollar fraud claims in one of largest Ponzi schemes in history
  • Cayman Islands
  • 09 July 2018

In a landmark ruling, the Grand Court emphatically dismissed a multibillion-dollar claim in a case involving allegations of fraud arising from one of the largest corporate collapses of the financial crisis. The case has showcased the court's ability to manage high-profile large-scale litigation, demonstrating especially the quality of the Cayman Islands judiciary and the court's ability to use cutting-edge technology, as well as the resources and flexibility to manage a year-long, multi-jurisdictional trial.

Anti-money Laundering Regulations for unregulated investment and insurance entities to take effect
  • Cayman Islands
  • 18 December 2017

Under new anti-money laundering legislation, the list of activities classed as relevant financial businesses has been expanded. Unregulated investment funds and some insurance entities have now been given a grace period until May 31 2018 to establish anti-money laundering compliance programmes. This is a welcome move, particularly for unregulated investment funds which were not bound by the preceding regulations and therefore may not have policies and procedures in place.

New Anti-money Laundering Regulations come into force
  • Cayman Islands
  • 20 November 2017

The government recently adopted updated Anti-money Laundering Regulations. The regulations demonstrate the Cayman Islands' ongoing commitment to comply with the highest international standards on combating money laundering and terrorist financing and aim to ensure consistency with the Financial Action Task Force 2012 recommendations. The move is part of an overall update of the territory's anti-money laundering regime.


Cyprus

Implementing EU anti-money laundering legislation in Cyprus
  • Cyprus
  • 20 March 2017

Cyprus implements EU anti-money laundering directives through the Prevention and Suppression of Money Laundering Laws 2007 to 2013. The Advisory Authority for Combating Money Laundering is working with the local industry to transpose the EU Fourth Anti-money Laundering Directive and (in due course) the EU Fifth Anti-money Laundering Directive through amendments to domestic legislation.


Germany

Contributed by CMS
Criminal penalties for tax fraud cannot apply to breach of trust allegations
  • Germany
  • 24 September 2018

According to the Federal Court of Justice's established case law, the penalty for tax evasion of more than €1 million should generally be imprisonment rather than a suspended sentence. However, the court recently ruled that these principles cannot apply to breach of trust allegations. The decision has significant implications for white collar crime and compliance.

Seizure of documents relating to internal investigations – legislative changes ahead?
  • Germany
  • 03 September 2018

A recent Federal Constitutional Court decision has clarified whether documents relating to internal investigations can be regarded as defence documents. Against the hope of companies and law firms, the court rejected the general prohibition on the seizure of such documents; however, it indicated that such a prohibition should always be determined on a case-by-case basis.

Corporate penalties and internal investigations
  • Germany
  • 18 June 2018

The federal government plans to create new corporate penalties and abandon the discretionary principle which has thus far applied in corporate prosecutions. Further, the upper limit of penalties will be significantly increased. At the same time, the government aims to establish legal requirements for internal investigations that provide an incentive for investigation support.

Companies step up compliance while management support declines
  • Germany
  • 29 January 2018

German businesses have steadily expanded their compliance structures and internal training programmes and have never been in a better position than they are now. However, declining support for compliance issues among management is giving compliance officers cause for concern, and recent compliance scandals appear to indicate that further work is necessary to make management fully acknowledge the significance of compliance matters.

Compliance management system can lead to reduction in fines
  • Germany
  • 18 September 2017

The Federal Court of Justice recently decided for the first time that the establishment of a compliance management system designed to prevent breaches of the law can reduce fines in accordance with the Administrative Offences Act. The court pointed out that even the optimisation of a compliance management system following compliance breaches can lead to a reduction in fines and provided guidelines for the measures to be taken in such cases.