International Regulatory Enforcement

International Chamber of Commerce Releases COVID-19 Recovery Guidance
The International Chamber of Commerce (ICC), representing more than 45 million companies in over 100 countries has just issued its ICC Guidance on Integrity for a Covid-19 Response and Resilient Rebuild. The Guidance has been finalized under the leadership of the Commission on Corporate Responsibility and Anti-corruption, taking into consideration input and commentary from ICC national committees and members. According to the ICC, “with this Guidance, ICC encourages business and governments to continue to uphold the highest standards for integrity in business transactions during the Covid-19 crisis and for the post-Covid rebuild”.
On the Heels of Significant FCPA Settlements, Past & Present Meet: Novartis Reaches FCA Settlements
Government resolutions with pharmaceutical companies from the early 2000s involving expensive meals and speaker honoraria provided to healthcare professionals ("HCPs") helped reshape the way the industry considered and approached transfers of value to HCPs. More recently, government investigations and resolutions have focused on whether and how manufacturers are transferring value to patients through donations to charitable copay foundations and patient support programs. Past and present have converged in Novartis' most recent settlements out of the Southern District of New York and District of Massachusetts, reminding life sciences companies, already wisely focusing on new(er) risk areas, to devote resources and attention to traditional risk areas, especially as these traditional activities migrate to new platforms in the present COVID-19 environment.
New Targeted and Secondary Sanctions Regime For Hong Kong and the PRC
In one of the latest developments in the fast-changing economic and foreign policy relationship between the United States and the People’s Republic of China (“PRC”), the Trump Administration on July 14, 2020 issued an executive order implementing economic sanctions against foreign persons who undermine Hong Kong’s autonomy. The President also signed the Hong Kong Autonomy Act (HKAA) into law on the same day.
UK implements sanctions on Somalia in preparation for Brexit
Within three days of announcing the first-ever sanctions implemented under the Sanctions and Anti-Money Laundering Act 2018 ("SAMLA"), the UK Government has announced further SAMLA-based sanctions. On 9 July 2020, the Somalia (Sanctions) (EU Exit) Regulations 2020 ("Somalia Regulations") were put in place to facilitate the continuation of a sanctions regime targeting Somalia on the exit of the European Union at 11pm on 31 December 2020.
At Long Last DOJ and SEC Update Their FCPA Resource Guide
In July 2020, the DOJ released the second edition of its Resource Guide to the U.S. Foreign Corrupt Practices Act (the “2020 FCPA Guide” or the “Guide”); an update of the first edition released in November 2012 (the “2012 FCPA Guide”) by the U.S. Department of Justice (“DOJ”) and Securities and Exchange Commission (“SEC”). The 2020 FCPA Guide continues to serve the main purposes of its previous edition: (i) to outline the Government's interpretation of the law; (ii) provide insight into its enforcement priorities; and (iii) communicate a clear understanding of how the Government exercises its discretion. Reflecting the increased volume of U.S. Foreign Corrupt Practices Act (“FCPA”) investigations since 2012 and resulting litigation, the 2020 FCPA Guide also incorporates the DOJ's and SEC's interpretations of a number of important federal court decisions
Watch Out the Blind Spot: Export Credit and the Fight Against Corruption
Sacré Bleu! France Sends a Message in the Fight Against Foreign Bribery
On June 2, 2020, French Minister of Justice Nicole Belloubet issued a « circulaire » (hereafter, the “Circular”) on “criminal policy related to international bribery,” which provides guidance to French prosecutors on the priority of enforcing France’s anti-corruption laws. The Circular reflects another significant French development in the corruption enforcement landscape and sends two important messages to French and foreign companies.
UK Government Uses Sanctions to Target Human Rights Contraventions
In the wake of the ongoing Brexit process, the UK Government has today (6 July) signalled its intention to use unilateral financial sanctions to target foreign nationals alleged to be involved in human rights abuses. The UK Office of Financial Sanctions (“OFSI”) announced targeted sanctions against 47 foreign nationals in furtherance of that intention.
Key Takeaways from the Novartis $345 Million FCPA Settlement
On Thursday, June 25, 2020, the United States Department of Justice (“DOJ”) announced a pair of deferred prosecution agreements with one current and one former subsidiary of Swiss pharmaceutical giant Novartis AG to resolve criminal Foreign Corrupt Practices Act (“FCPA”) allegations to the tune of a combined $233 million. In a parallel resolution, Novartis AG agreed to pay the Securities and Exchange Commission (“SEC”) $112 million to settle charges that it violated the FCPA in connection with misconduct by its subsidiaries. Novartis’s combined $345 million resolution represents the largest FCPA resolution of this calendar year since the monumental Airbus resolution in January, as well as the third largest FCPA resolution of all time in the life sciences industry. Additionally, this resolution is the second time within the last four years that Novartis AG has fallen under regulatory scrutiny for alleged FCPA misconduct; it reached a $25 million resolution with the SEC in March 2016 related to two of its Chinese subsidiaries. With Thursday’s resolution, Novartis is the first FCPA recidivist manufacturer in the pharmaceutical sector.
Foreign Investment Control and COVID-19 in Germany
In June 2020, the German government tightened again the rules of screening of foreign direct investments by revising the Foreign Trade and Payments Ordinance ("AWV"). The initiative is a response to the COVID-19 pandemic emphasizing the importance of protecting critical technology and assets in the current crisis and extends the ability of the German Ministry for Economic Affairs and Energy to scrutinize, intervene in, and prohibit the acquisition of companies in critical sectors—with an emphasis on the health care sector—by non-EU investors. Moreover, the German Parliament is currently revising the Foreign Trade and Payments Act ("AWG") to streamline the screening of foreign direct investments and to implement the EU Regulation on the Screening of Foreign Direct Investments ("EU Screening Regulation").
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