Issue link: https://digital.shearman.com/i/1389983
21 foreign bribery scheme. Although the indictment alleged bribery, the defendant was charged in August 2020 with one count of conspiracy to launder money and five counts of money laundering. The DOJ's approach allows the DOJ to ramp up prosecution of corruption by foreign officials, even in circumstances when it is not clear it has jurisdiction to charge others with violations of the FCPA. The DOJ's ability to charge defendants with allegations of fraud, bribery, and money laundering extends their reach in extraterritorial situations or in matters involving foreign nationals and increases the scope of their anticorruption enforcement. However, that expanding reach does not explain why the individuals accused of paying bribes are not charged with both FCPA and money laundering offences. Perhaps these cases are simply instances of the DOJ not "piling on" charges for the same conduct. The DOJ shows no sign of deviating from this tactic, so further examples may illuminate the reasoning behind it. FOREIGN DEVELOPMENTS EU ESTABLISHES PUBLIC PROSECUTION OFFICE On June 1, 2021, the European Union's European Public Prosecutor's Office (EPPO) officially began operations after its establishment more than three years ago. The EPPO is an independent agency that has been charged with investigating and prosecuting corruption, money laundering, and serious tax fraud, among other crimes, in twenty-two participating countries. The EPPO plans to hire 140 local prosecutors from national law enforcement agencies who will handle cases in their home countries under the supervision of three prosecutors who are not from the country in which the case is based, and report to twenty-two public prosecutors based in Luxembourg. As of the EPPO's opening, only 88 positions had been filled, with two countries, Finland and Slovenia, yet to fill any appointments. Five EU countries—Denmark, Hungary, Iceland, Poland, and Sweden—have refused to join the EPPO at all, forcing the establishment of information sharing agreements and the secondment of officers should investigations arise in these countries. Under the EPPO framework, cases will be brought in the courts of the participating countries using each state's domestic laws, which will require the EPPO to rely on local experts in each country. The use of domestic laws may also lead to procedural challenges as the EPPO tries to navigate varying laws and regulations. The EPPO currently has 3,000 cases on its books and plans to add 2,000 each year. With an annual budget of only €44.9 million and a number of weakened European economies because of the COVID-19 pandemic, however, the EPPO may find itself running low on funds with nowhere to turn for additional resources. DUTCH COURT ISSUES RULING CHARACTERIZING CORPORATE INTERNAL INVESTIGATIONS AS PARTIAL On April 20, 2021, a court of appeals in the Netherlands ruled that internal investigations conducted by external counsel are not independent because they are done in the interests of a client. The Amsterdam court stated that these investigations were not sufficiently impartial and that a company claiming such an internal investigation was impartial may be "potentially misleading." The case involves Jonathan Taylor, a former in-house lawyer at SBM Offshore, a Dutch oil company based in Monaco, who sought documents from SBM as part of his case against the company. Taylor, a citizen of the United Kingdom, claims that SBM accused him of defamation after he made corruption allegations against the company in 2012 related to bribes being paid in exchange for contracts. Taylor wanted a partner from an external law firm to testify about the internal investigation he conducted related to the corruption allegations at SBM, a request that was denied by a lower court. On appeal, the Court of Appeals in Amsterdam ruled that the documents sought were protected on the grounds of professional legal privilege—as they were prepared on behalf of the client—and used the ruling to also state that SBM had made misleading public statements about the impartiality of the internal investigation. Some commentators say that the court's ruling just formally states that investigations lawyers are partial to the interests of their clients, a fact that is already known by Dutch lawyers, while others say the ruling may result in prosecutors giving less deference to internal investigations than they have in the past. It remains to be seen whether the ruling will impact how external law firms carry out investigations in the Netherlands and whether prosecutors will be more critical of external firms' investigative findings. EXTRADITION PROCEEDINGS OF SBM OFFSHORE WHISTLEBLOWER IN CROATIA In a related case, Taylor is being investigated by the authorities in Monaco over allegations of corruption and bribery in a case he helped bring to light as an internal whistleblower. Specifically, SBM accused him of extortion, claiming that he demanded to be paid for his silence, and authorities in Monaco attempted to have him extradited for questioning. In July 2020, Taylor was arrested by authorities in Croatia while on a family vacation, and although the Interpol warrant for his arrest was later withdrawn, Croatian courts prohibited Taylor from leaving the country pending the ongoing extradition proceedings. Taylor, who has not been charged with any crimes, denies the claims. The Whistleblowing International Network (WIN) has stated that the extradition proceedings amount to retaliation for Taylor speaking out about SBM's alleged bribery and corruption.