Anti-Corruption Committee sessions at the IBA Annual Conference, Miami, 30 October to 4 November 2022
Aye Omolola Motunrayo
Scholar/Criminal Law Section scholarship winner
lawlar2004@gmail.com
This report outlines some of the topics discussed by panellists at sessions organised by the Anti-Corruption Committee at the IBA Annual Conference, Miami, 2022.
Monday 31 October
The role of investigative journalists in uncovering misconduct
Chair
Janusz Tomczak.
Speakers
Peter Bartlett, Kalelyn Polantz, William Shepherd, Gurbachan Singh and Sabine ten Doesschate
This session featured a discussion of the role of investigative journalists in combatting crimes and the role of professional enablers often uncovered by journalists.
Ten Doesschate discussed the MH17 plane crash of 17 July 2014 of which there were no survivors as reported in the news. It was a scheduled passenger flight from Amsterdam to Kuala Lumpuv but it crashed in eastern Ukraine.
Investigations began investigating the cause of the crash but information was not readily available. The Netherlands-based investigative journalism group Bellingcat’s report, concluded hours after the crash that a missile launcher was linked to the drowning of MH17. There were questions about how that conclusion had been reached so soon following the crash. Ten days after the conclusion, eight more reports were published and the Bellingcat report was accepted and became the focus of the Joint Investigation Team (JIT). This, in my opinion, had an impact on the outcome of the proceedings. On the 17 November 2022, the court sentenced three defendants to life imprisonment for the murder of 298 passengers and crew.
According to ten Doesschate, it is important to focus on the evidence that will build the case for a conviction and overlook irrelevant evidence that points to something. In a criminal investigation, initial clues and beliefs can have a major impact on the information processing that follows. A journalist publishing the result can also affect public opinion and this can also affect the defence.
Gurbachan Singh focused on the Pandora Papers which consist of 2.9 terabytes of data list of current and former national leaders, public officials and billionaires from countries worldwide. These papers were exposed through investigative journalism and cases were instituted both in the US and UK. The English Court in keeping with the spirit of the law adopted the stance of the US Court which in Gurbachan’s opinion was good as it allowed for the rule of law where no structure was in place.
There is however, a place for public opinion and the journalist’s task is to seek the truth, report it and shape that opinion.
William Shepherd discussed the US regulators in the 1980s, the media and fact reporting – all over the world, the media is more holistically engaged. He talked about how modern media in the US faces business pressure. The pressure is to get their stories published before their competitors and these competitors may be bloggers, twitter influencers etc. This pressure affects their ability to carry out investigation properly, understand the truth, and ask witnesses and sources before reporting the facts. Unfortunately, once a story gets published ahead of the facts, it becomes difficult for lawyers to address and slow down the momentum. Investigative journalists do play an important role but in order to rely on them, there is a need to understand that their role has changed because of the pressures they face.
Katelyn Polantz, a journalist, compared the roles of lawyer and journalist and emphasised on the similarities between them. According to her, they have much in common. She did, however state that a journalist often needs to be educated on how things work, as many journalists have not figured how law, proceedings, deadlines etc work. She said most journalists are more concerned with accuracy in their information.
Monday 31 October
Global anti-corruption update
Chair
Leopoldo Pagotto
Speakers
Elvan Sevi Bozoglu, Jeena Kim, Silvia Martina, John Oxenham, James Pakinson, Hector Scanchez Fernandiz and Robert Wyld.
At this annual conference session, the Committee discussed key developments in the field of anti-corruption regarding the legal and enforcement landscape in different jurisdictions.
This year’s discussions focused on the ongoing global fight against corruption and the growth, changes and enforcement in the anti-corruption laws of Australia, Italy, Mexico, South Korea, and the United States.
A poll was conducted for the delegates to give their opinion in these areas. Its questions were as follows:
- Do you believe that cases of bribery and corruption have increased, decreased or remains the same since the pandemic?
- 14 delegates voted ‘Increased’;
- three delegates voted ‘Decreased’; and
- six delegates voted ‘Remains the same’.
- Do you believe that anti-corruption enforcement has increased, decreased or remains the same?
- five delegates voted ‘Increased’;
- six delegates voted ‘Decreased’; and
- one delegate voted ‘Remained the same’.
Silvia Martina said she shared the view of the delegates/audience about anti-corruption enforcement decreasing over the last two years compared to the previous years and she encouraged more enforcement cases.
Jeena Kim added that more corruption cases should be encouraged. She stated that although, the current economic situation may make it more difficult, there is a need for more work to be done and if it is not looked into, there is a likelihood of increased corruption.
- How familiar are you with the 2021 Recommendation for further combatting Bribery of Foreign Public Officials in International Business transactions.
- six delegates voted ‘Not heard about it’;
- six delegates voted ‘Heard about it but not familiar with it’;
- four delegates voted ‘Heard about it and a little familiar with it’; and
- one delegate voted ‘Heard about it and very familiar with it’.
The speakers were asked questions regarding updates in their regions by the Chair.
How does internal investigation affect the cooperation of enforcement in your jurisdiction?
Jeena Kim replied that in South Korea, internal investigation does not necessarily benefit the cooperation under enforcement action because there is no specific legal system to help internal investigators while there is a general concern that sentencing should consider circumstance.
In Spain, Jeena confirmed that she recently heard that prosecutors offered for internal investigations to be conducted and reported back in a certain cross-border case. Jeena said, ‘we should consider a strategy to what extent should the client cooperate with prosecutors who request information on a specific legal system to help their internal investigation’.
Silvia Martina stated that in Italy, there is need for a particular approach. There is a specific rule which allows the lawyer to carry out their investigation and interview. This is also the position in South Korea and there are rules in the Italian code which makes this possible.
According to Hector Scanchez Fernandiz, in Mexico, an Anti-Corruption National Code has been created for different roles with criminal and administrative rules.
A specific article of the criminal rule states that if the company cooperates with government, the company can obtain better options for their clients. The specific rules to follow as a company are to:
- help the government obtain genuine facts;
- prove the case can be stopped before it goes to trial; and
- prove to the government that all measures have been taken to prevent the issue from reoccurring.
Once all these have been demonstrated, a firm can get better options for their client.
In Mexico, it is interesting that a suitable law exists but unfortunately, the willingness to implement the law is lacking.
What has the impact of the EU’s European Public Prosecutor's Office been on cross-border investigation?
Silvia Martina explained that the impact started with the 2021 European Public Prosecutors Office (EPPO) Report which focused on the need to ensure a coherent prosecution policy and to combat effectively the crimes against the financial interest of the European Union such as money laundering.
She also talked about the recent ongoing case investigated by the EPPO on 14 October 2022 which focuses on investigating the acquisition of Covid-19 vaccines in the EU.
What is the impact of the Commission Inquiry that has been a topic of discussion for the past three years in South Africa?
John Oxenhan responded that the Commission Inquiry has adopted significant approach to attempt to uncover and prosecute those involved in corruption activities. Its main focus is on money laundering, fraudulent activities, bribery etc and these findings are highly influential. The Commission has so far reported beneficial findings to the state, and that there have already been positive results and there would be more.
Tuesday 1 November
The development of international cooperation in corruption investigations
Chair
Sophie Scemla SC
Speakers
Adriana Meneze Dantas, Daniel Kahn, Wendy Wysong
The speakers at this session discussed cross-border investigation and the impact of the new whistleblowing legislation on companies.
Several questions were raised which were answered by the investigation lawyers and companies represented at the session. Some of the observations were that conducting cross-border investigations is no simple endeavour as there are obstacles at every step of such an investigation. Discussion looked at understanding where the pitfalls lay along the way, and how navigating them can help avoid critical missteps.
The discussion also noted that electronic documents have become widely accepted as a result of the pandemic. Adriana Meneze Dantas discussed how the pandemic affected corruption investigations and how virtual hearings became common, along with their challenges. Sophie Scemla talked about the impact of the whistleblowing directives in Europe during the pandemic and how these directives grant protection to individuals reporting misconduct.
The panel also talked about the challenges faced in the US regarding discloser issue and how reacting poorly to a whistleblower can be problematic.
In Australia, new whistleblowing legislation has been amended to provide a more robust support system. The legislation came into force from July 2022 as the Protected Disclosures (Protection of Whistleblowers) Act 2022. The new legislation makes it easier for workers to raise concerns about ethics, risks, financial impropriety and safety in the workplace without fear of recrimination. The Public Disclosure Act has also been expanded to cover public sector whistleblowers.
In Nigeria, there is currently no National Assembly legislation backing a whistleblowing policy. Protection for individual whistleblowers can be found in Section 39(10) of the Economic Financial Crimes Commission (Establishment) Act 2004 and Section 64(1) of the Independent Corrupt Practices and Other Related Offences Act 2004.
Nevertheless, if the identity of the whistleblower is for any reason compromised, there is no system in place to offer further protection.
The 2008 Whistleblower Protection Bill has yet to be passed by the National Assembly.
Wednesday 2 November
The importance of anti-corruption due diligence in M&A transactions
Chair
Andrew Levine
Speakers
Alix Apollon, Thiago Jabor Pinheiro, Ibtissem Lassoued and Nadege Nguyen.
Although, I was not present at this session, I had already acquired some knowledge about it during the Young Lawyers’ Training held at the University of Miami on the 29 October 2022. Consequently, the report on this subject is from what I learned during the training session.
The panel discussed best practice for accessing anti-corruption risk in the transaction to give clients better results and how the purpose of a pre-deal anti-corruption due diligence within M&A transactions is used to access corruption risk associated with the target company.
Due diligence varies depending on the type and nature of transaction. The important questions during due diligence are to ask why the buying and selling are being carried out, and to identify the risk involved.
Regarding what a lawyer is to look out for during compliance on anti-corruption, Leopoldo Pagotto stated that, there is a need to do a thorough check and investigation to ascertain whether the company has a troubled past. Additionally, the lawyer must interview management and prepare a risk assessment.
Due diligence also helps lawyers to understand how the business operates. The obligation is to understand how to help the client close the transaction. Our duty as lawyers is to move the process forward.
Thursday 3 November
Anti-Corruption Committee open business meeting
The meeting allowed all members of the Committee to discuss matters of interests as well as the Committee’s future activities.
Conclusion
The sessions, which were interesting and educative, brought home the importance of taking anti- corruption laws and strategies seriously. The role of investigative journalism cannot be overstated, similarly the need for countries to work together in the fight against corruption. Both private and public sectors have important roles to play in this fight against corruption and this should not be left to the government or public sector alone.