US Anti-Corruption Strategy: US law enforcement efforts increase as SFO reports lowest number of new investigations
How will the recently released US anti-corruption strategy affect the UK? Richard Sallybanks and Anoushka Warlow examine the US government’s proposals and what they might mean for the SFO.
On December 6, 2021, the US administration released its first-ever “Anti-Corruption Strategy” (“The Strategy”) which includes a stern warning to its foreign counterparts: comply with obligations to criminalize and prosecute foreign bribery, or be held responsible.
What is the strategy?
That corporate criminal liability is a low priority for the Trump administration is not surprising given that the former president himself reportedly once complained that “”it’s so unfair that American companies are not allowed to pay bribes to do business abroad!“It is also not surprising that soon after taking office, President Joe Biden took a markedly different stance.
On June 3, 2021, the Biden administration released a National Security Study Memorandum establishing the fight against corruption as a fundamental national security interest of the United States. The struggle was so great that government agencies were asked to undertake a 200-day interagency review, the product of which – 186 days later – is the Strategy; a 38-page document identifying corruption as “a fundamental threat to the rule of law” and presenting a “comprehensive approach” to combat it.
The Strategy organizes its efforts into five mutually reinforcing pillars of work:
- Modernize, coordinate and finance anti-corruption efforts;
- Fight against illicit financing;
- Hold corrupt actors accountable;
- Preserve and strengthen the multilateral anti-corruption architecture; and
- Improve diplomatic engagement and leverage foreign aid to advance political goals.
Under these pillars, a comprehensive menu of policies and enforcement strategies is presented. But, for those in the UK, there are two main takeaways: first, the US will do more to tackle corruption both globally and nationally, and second, in doing so, the states United will expect help and cooperation from foreign governments. .
“Aggressive coercive actions”
The strategy makes it clear that the US government is committed to taking “aggressive enforcement action” to root out widespread corruption. The strategy promises independence and resources to law enforcement agencies that investigate and prosecute domestic crimes, as well as a series of new initiatives to increase intelligence-gathering, investigative efforts and expand coordination among US government agencies.
Among other things, the strategy includes plans to vigorously pursue the enforcement of foreign bribery cases through criminal and civil enforcement measures, including through the (somewhat neglected under the Trump administration) Foreign Corrupt. Practices Act, the American equivalent of the Bribery Act 2010.
The strategy matches comments from Lisa Monaco, the U.S. Deputy Attorney General, in her opening address to the American Bar Association’s National Institute on White Collar Crime in October 2021, in which she urged prosecutors to be bold in holding those who commit criminal behavior accountable and to outline policy changes designed to “revitalize the ministry’s efforts to tackle corporate crime.”
Recognizing the global nature of the threat, the Strategy emphasizes the importance of the need to work with “partner countries” to strengthen the fight against corruption and prevent the creation of new havens for corrupt actors and their ill-gotten gains.
Among other things, it sets out plans to preserve and strengthen the existing international anti-corruption architecture, including pushing the G7 and G20 (both of which include the UK) to focus on implementing anti-corruption measures. – strong corruption and the promotion of transparency and good governance.
Specific reference is also made to the need to improve information sharing at the national and international levels, in particular through international partnerships, and to deepen cooperation and assistance, including, where appropriate, in s ” associating with foreign jurisdictions in the context of joint investigations and prosecutions.
In his own words: “We’re going [be]… urging partners to respect their obligations and holding accountable those who do not”.
What does all this mean?
What it lacks in detail, the Strategy makes up for with a strong message: corruption will not be tolerated. It is therefore not surprising that defense attorneys for US companies report a significant increase in work and an increased demand for services in connection with white-collar practices, including foreign bribery, money laundering, laws antitrust, sanctions and cryptocurrency.
Meanwhile, in the UK, the SFO recorded its lowest annual number of new criminal misconduct investigations, just four in 2021, echoing similarly low numbers in 2019 and 2020 (five and seven respectively) . However, as recent examples of its close and effective working relationship with its US counterparts, the SFO will cite the deferred prosecution agreements reached with Airbus SE and Amec Foster Wheeler Energy Limited in 2020 and 2021 respectively as part of global investigative settlements. anti Corruption. involving the US authorities.
While the ‘close partnership’ between the UK and the US should shield the SFO from direct criticism, just six months ago, at the G7 conference, the two countries agreed to ‘lead the world ”in the fight against illicit financing by strengthening transparency and financial integrity, protecting open societies and giving corrupt and malicious actors no place to hide.
There is no doubt that the SFO will feel the pressure to keep those promises, especially in circumstances where it concludes 2021 bruised by the highly critical comments of the Court of Appeal in connection with the known Unaoil corruption case. now that he has certainly strained the working relationship between the SFO and the US Department of Justice.
Either way, what seems very clear is that UK law enforcement can anticipate an increase in requests for intelligence sharing, mutual legal assistance and extradition, as well as pressures to escalate its own anti-corruption activity, as the US Department of Justice firmly believes, is renewing its focus on complex multi-jurisdictional bribery and corruption investigations.
The strategy document is available here: https://www.whitehouse.gov/wp-content/uploads/2021/12/United-States-Strategy-on-Countering-Corruption.pdf
The national security study memorandum is available here: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/06/03/memorandum-on-establishing-the-fight-against-corruption-as-a-core-united-states-national- security interest /