Corporate criminal investigations across borders are increasing. This is no surprise: The worldwide economy is global and many companies conduct their business across borders, so the very nature of their enterprise will implicate the laws, including the criminal laws, of more than one country. Some criminal laws specifically focus on conduct abroad. The Foreign Corrupt Practices Act, adopted in 1977, by its terms applies to corrupt payments made to recipients outside the United States; since the adoption of the OECD Anti-Bribery Convention in 1997,1 similar prohibitions to those contained in the FCPA are now found in the legislation of many countries around the world. Potential violations of antitrust laws, such as through offshore cartels, have long been the focus of criminal investigations;2 concern about evasion of the tax laws by use of offshore “fiscal paradises” has spurred cross-border activity designed in particular to pierce veils of confidentiality.3
Trans-border criminal investigations can pose different kinds of problems depending on whether there is a single investigating authority (often the U.S. Department of Justice), or if the investigating authorities in more than one country are simultaneously involved. Even the relatively straightforward “one prosecutor” situation may pose vexing problems relating to finding and assembling the relevant evidence and information when such evidence is located outside of the United States; much more complicated are situations when not only the Department of Justice but investigating authorities in other countries are also involved. The purpose of this article is to provide a preliminary and basic checklist to identify the key variables in both situations necessary to develop an effective strategy.
Step One: Identify Interested Countries
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