1 00118601 Emerging themes 2019 A4 AW v31 combined - Page 15



EMERGING THEMES 2019
can be a real fight between authorities to extradite
individuals to their own jurisdiction. Further issues arise
where national courts refuse to extradite individuals,
even under the European Arrest Warrant, as we saw
with Germany and France last year in the context of
the Euribor investigation.
In the context of purely regulatory outcomes,
coordinating the timing of any global settlement – and
the division of financial penalties between authorities –
has been a further source of disagreement and friction
between different national authorities. It is normally in
the firm’s interest to agree a single global settlement,
but the interests of different authorities may well conflict.
Each authority naturally wants to be seen as the ‘lead’
on the investigation, and to be viewed as having
achieved the most successful outcome. While the
announcement of a multi-regulator settlement can
appear externally to be a well-choreographed affair,
the reality is that settlements of this nature are the result
of hard bargaining and the resolution of disagreements
not only with the defendant firm but also between the
various regulators involved.
Yet there are signs that the poor relationships between
international authorities in recent years are now
beginning to improve. The Department of Justice’s
(DOJ’s) Rosenstein memo to US Attorney Generals in
May 2018 made clear both that US prosecutors must
coordinate properly with other agencies in the US and
internationally, and that in the setting of financial
penalties it is necessary to take into account the
actions of other authorities to avoid the imposition
of duplicative fines.
constructive relationship between the UK and US
prosecutors. In her first speech as Director just days after
taking up her position at the end of August 2018, she
signalled her intentions: “Our kinds of cases are
becoming increasingly multijurisdictional and complex,
so cooperation to achieve global settlements like
Rolls-Royce are ever more important. Strengthening
and deepening the relationships that make this happen
is going to be a major focus for me.” Since then
Ms Osofsky has been busy visiting prosecutors
in a range of jurisdictions to build that mutual trust
and cooperation.
In summary
While a binding global protocol to ensure that
regulators and prosecutors operate in a constructive
and cooperative manner with parallel authorities
internationally still seems a long way off, these
recent signs of an enhanced commitment to
cooperation rather than competition between
investigatory bodies on both sides of the Atlantic
are to be strongly welcomed.
There are signs that the poor
relationships between international
authorities in recent years are now
beginning to improve.
Equally the new Director of the SFO, Lisa Osofsky, is
clearly committed to repairing soured relationships with
the DOJ in order to maximise cooperation and harmony
between the two bodies in the future. As a US citizen
who has spent five years working as Deputy General
Counsel and Ethics Officer at the FBI, Ms Osofsky has
the understanding, empathy and high level personal
contacts that will be key to rebuilding a strong and
NATHAN WILLMOTT
Co-head of the Investigations, Financial
Regulation & White Collar Group, London
/15

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