Corruption and Corporate Responsibility

Conference Report

The annual EFCL conference, hosted this year in Paris, was opened by the associations chairman Oliver Kipper (kipper+durth) who welcomed delegates to what would become another informative and thought provoking conference. 

The first panel entitled “Combatting bribery in Europe. SAPIN II as a benchmark” was chaired by the president of the ECBA, Vincent Asselineau (Asselineau & Associés), with panelists comprising Maarten ‘t Sas (Simmons & Simmons), Aurélia Grignon (Soulez Larivière & Associés) and Shula de Jersey (BCL Solicitors).

The panel debated the competing arguments for mandatory compliance regimes which enable corporates to tackle bribery and corruption, as under Sapin II in France, as opposed to the advisory guidance in the UK and the Netherlands where the statutory defence is seen as incentive enough. The panel moved on to discuss provisions relating to whistleblowing and to explore the advantages and disadvantages of offering financial incentives to whistleblowers.

 It is clear that the mandatory regime in France has generated more questions than answers, whilst at the same time leaving corporates no alternative but to engage with their legal advisers to ensure compliance. Sapin II, described as a revolution by some of the panel, has created a new regime of cooperation with the prosecution, the likes of which French lawyers have not hitherto experienced.

During the first interval, delegates were able to discuss matters further and meet new and returning colleagues.

The second panel concerned the challenging topic of “Representing the Company in cross-border investigations” posing the question “Is there a Best Practice?” The panel consisted of Stéphane Bonifassi (Bonifassi Avocats), Maria von Tippelskirch (Staatsanwaltschaft Frankfurt am Main) and Louise Byrne (A & L Goodbody) and was chaired by Neil Swift (Peters & Peters).

The initial steps an adviser takes in the early stages of an investigation were highlighted as being critical in building a solid foundation. These include defining the core team within the corporate who will be responsible for providing material and instructions and taking steps to preserve privilege, a topic which, given the recent decisions in the UK, demonstrates how a lawyer must be alive to the different approaches in every jurisdiction. The panel warned that these matters should be kept under review and that cross-border cases rely on the trust which one jurisdiction can place on documents produced from another, without which it is difficult to make progress.

Over lunch, delegates had the opportunity to reacquaint and probe issues further with their European colleagues.

Oliver Kipper introduced the afternoon session with the fascinating Keynote Speech delivered by Frédéric Pierucci (Ikarian) on the “Challenges in combatting corruption - Lessons learned from the Alstom case”.

Delegates were given the privilege of hearing, first hand, the account of a former executive of Alstom who described the lasting impact on his personal and professional life caused by his prosecution in the US.

The final session of the day, chaired by Janusz Tomczak (Raczkowski Paruch) saw Robin Lööf (Debevoise & Plimpton), Vera Jungkind (Hengeler Mueller) and Emmanuel Rollin (Colas) discuss “Corporate Responsibility and the Employee”.

The planning of internal investigations was debated as well as the difficulties in dealing with the often competing interests, rights and responsibilities owed between the employer and the employee. In handling this relationship an important role is held by lawyers acting for the corporate to marshal cooperation, disclosure and the management of expectations when faced with the possibility of a self-report to law enforcement.

Oliver Kipper gave the final address and echoed the thoughts of the delegates on a conference which had delivered interesting content and thoughtful debate.

We will all look forward to next year's conference in London.

Report by Matthew Ewens - Mishcon de Reya LLP

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