The new failure to prevent fraud offence and new ‘senior manager’ attribution test for corporate criminal liability contained in the Economic Crime and Transparency Act 2023 are relevant to private equity firms for two key...more
The UK government is already proposing further expansion to the basis on which companies can be fixed with criminal liability.
The Economic Crime and Corporate Transparency Act 2023 (ECCTA), passed in October, significantly...more
12/6/2023
/ Corporate Crimes ,
Corporate Entities ,
Corporate Governance ,
Corporate Transparency Act ,
Criminal Liability ,
Financial Crimes ,
Fraud ,
Investigations ,
Regulatory Agenda ,
Small and Medium-Sized Enterprises (SMEs) ,
UK
The new Economic Crime and Corporate Transparency Act 2023 (the Act) is the latest step in the UK Government’s attempts to address economic crime and improve transparency over corporate entities. Whilst most of the key...more
10/30/2023
/ Corporate Counsel ,
Corporate Crimes ,
Corporate Entities ,
Corporate Fraud ,
Corporate Governance ,
Corporate Liability ,
Corporate Transparency Act ,
Enforcement Actions ,
Financial Crimes ,
Investigations ,
Regulatory Agenda ,
UK
Where a criminal offence requires proof of a specific mental state, or ‘mens rea’ (such as intent, recklessness or dishonesty), previously a company could only be found guilty if an individual who represented the company’s...more
The Economic Crime and Corporate Transparency Act 2023 was granted Royal Assent on 26 October 2023. It contains a new ‘failure to prevent fraud’ corporate criminal offence which will render large companies liable for fraud...more
10/26/2023
/ Corporate Crimes ,
Corporate Entities ,
Corporate Governance ,
Corporate Transparency Act ,
Enforcement Actions ,
Failure to Prevent ,
Financial Crimes ,
Fraud ,
Investigations ,
Popular ,
Regulatory Agenda ,
UK ,
UK Bribery Act ,
White Collar Crimes
The UK Government is expanding the scope of the Serious Fraud Office’s (SFO) power to compel individuals and companies to provide information before a formal SFO investigation is commenced. Currently the power can only be...more
A draft ‘failure to prevent fraud’ corporate criminal offence will render large companies liable for fraud committed by their associates. We consider the draft offence and implications for businesses....more
9/13/2023
/ Board of Directors ,
Corporate Crimes ,
Corporate Governance ,
Corporate Investigations ,
Corporate Officers ,
Criminal Liability ,
Enforcement Actions ,
Extraterritoriality Rules ,
Failure to Prevent ,
Fraud ,
Legislative Agendas ,
Proposed Legislation ,
Shareholders ,
UK ,
UK Bribery Act ,
UK Corporate Criminal Offense ,
White Collar Crimes
A draft ‘failure to prevent fraud’ corporate criminal offence will render large companies liable for fraud committed by their associates. We consider the draft offence and implications for businesses....more
9/6/2023
/ Board of Directors ,
Corporate Crimes ,
Corporate Governance ,
Corporate Investigations ,
Corporate Officers ,
Criminal Liability ,
Enforcement Actions ,
Extraterritoriality Rules ,
Failure to Prevent ,
Fraud ,
Legislative Agendas ,
Proposed Legislation ,
Shareholders ,
UK ,
UK Bribery Act ,
UK Corporate Criminal Offense ,
White Collar Crimes
Last Thursday, the government publicised its intention to use the Economic Crime Bill to significantly expand corporate criminal liability through reform of the ‘identification doctrine’. This is the English law rule on how...more
Financial services firms are already subject to significant obligations to prevent financial crime. The proposed introduction of the new failure to prevent fraud offence will no doubt prompt the question within such...more
The UK Financial Conduct Authority’s (FCA) 2023 Business plan suggests some subtle amendments to the priorities previously set out in its three-year strategy....more
The UK Government has published a draft ‘failure to prevent fraud’ corporate criminal offence rendering large companies liable for fraud committed by their associates. We consider the draft offence and implications for...more
Cyber incidents have a serious regulatory and reputational impact, and increasingly form the subject of follow-on civil litigation. Such civil claims may be less financially attractive for claimants as a result of this case,...more
The FCA is proposing to streamline decision-making and governance by moving some decision-making powers from the more independent, board level, Regulatory Decisions Committee (RDC) to senior members of the Authorisation,...more
The FCA is extending its existing annual financial crime reporting obligation (termed the “REP-CRIM” by the FCA) to a broader range of firm types. The change is expected to impact approximately 4500 firms who were previously...more
The Supreme Court has decided the Serious Fraud Office does not have the power to issue a section 2 notice to a non-UK company with extraterritorial application. It can, however, continue to compel production of documents...more
A DPA can now be entered into in respect of offences under ss 89, 90 and 91 of the Financial Services Act 2012 (FSA).
The Crime and Courts Act 2013 (the Act) (Deferred Prosecution Agreements) (Amendment of Specified...more
Despite valid service on the issuer, the English court refused to grant declarations sought by a corporate trustee as to amounts outstanding under unsecured notes issued by a now-insolvent issuer. The declarations would be...more
Ukraine v The Law Debenture Trust Corporation PLC [2018] EWCA Civ 2026 -
The second round of the legal battle between Russia and Ukraine over repayment of Eurobonds issued by Ukraine has ended with a victory for Ukraine:...more
The Serious Fraud Office can validly issue a section 2 notice with extraterritorial application. It can compel production of documents held extraterritorially by a UK company, or issue a notice to foreign companies in...more
Documents, including interview notes, generated by mining company ENRC during an internal corruption investigation were protected by privilege and therefore did not have to be disclosed to the Serious Fraud Office (SFO). ...more
In two recent decisions, the English courts have grappled with the application of litigation privilege in the wake of Andrews J’s decision in SFO v ENRC. In Bilta v RBS, the court upheld a claim to litigation privilege over...more
The Supreme Court unanimously held that a lender was only entitled to recover new money, which had been advanced as part of a loan refinancing, in its claim against a negligent valuer (whose report it relied upon in entering...more
Ivey v Genting Casinos [2017] UKSC 67 -
In a landmark case, the UK Supreme Court has clarified the test for dishonesty under criminal law. This re-alignment of the criminal test for dishonesty is significant for both...more
A political battle between Russia and Ukraine has ended up before the English courts, in the context of a dispute over repayment of Eurobonds issued by Ukraine. The decision in The Law Debenture Trust Corporation plc v...more