A few weeks ago, I had the opportunity to learn about the inner workings of the International Foreign Bribery Taskforce (IFBT). Not familiar with the IFBT? It doesn’t get a lot of attention.
Working mainly out of the limelight, the IFBT was established in 2013 and consists of the FBI, the Royal Canadian Mounted Police, the Australian Federal Police, and the City of London Police Overseas Anti-Corruption Unit.
The purpose of the IFBT is to enhance the sharing information and the joint pursuit of investigations involving cross-border bribery.
Representatives from these law enforcement agencies addressed the annual conference of the International Forum on Business Ethical Conduct for the Aerospace and Defence Industry (IFBEC) in London. IFBEC was kind enough to allow me to share some insights from the panel, which provided a valuable glimpse into how the IFBT works to combat bribery and corruption on a global scale.
The IFBT works together in a number of ways. Representatives from the four law enforcement agencies formally meet on an annual basis to exchange information regarding on-going investigations, report on innovative investigative techniques and determine what country is best suited to take the lead on particular multi-jurisdictional matters.
However, the real meat of the relationship is real-time information sharing.
According to the panel, the agencies speak and correspond with each other on an almost daily basis. The panelists emphasized that if one agency is investigating misconduct that involves another IFBT country, they will communicate that to one another “quite early” in the process.
Moreover, each of the agencies frequently second personnel to physically sit in the offices of the other agencies. For example, both the FBI and the Australian Federal Police currently have agents based in London working with the UK National Crime Agency and the Serious Fraud Office.
The panelists indicated that the agencies informally assign one organization among them to take the leading role in each multi-jurisdictional investigation. This decision is based not only where the misconduct has occurred or the situs of most of the evidence, but also where they’re likely to secure the largest penalty.
The other interesting piece of information was the number of cross-border bribery cases each agency is currently handling.
Not surprisingly, the United States tops the list, with approximately 140 on-going FCPA cases, including public companies, private companies and individuals.
Britain reported having approximately 38 on-going investigations under the UK Bribery Act.
Australia and Canada reported having 20 active cross-border bribery investigations each.
The panelists did not provide details about how many cases they’re currently working on together, but did report that the number is significant.
The IFBT panel was a stark reminder that corruption investigations are becoming increasingly international in scope. The implications for voluntarily disclosing potential infractions in an effort to secure cooperation credit are obvious. At least among these four common law jurisdictions, there can be no forum shopping.
Bill Steinman is a Contributing Editor of the FCPA Blog. He’s the senior partner at Steinman & Rodgers LLP, a boutique law firm in Washington, D.C. specializing in international anti-corruption compliance and investigations.
Interesting to hear that potential penalty weighs in as a factor for this type of cooperation – presumably double jeopardy and the scope for agreed shares of multi jurisdictional disgorgement would play a part in this consideration? The approach to these issues would seem to be important for managing the risks of jurisdiction shopping, as well as speeding up settlements.
I was hoping to see some mention of the International Anti Corruption Cordination Centre, the similar but broader initiative announced at this May's London Anti Corruption Summit. Now that France has its own alternative settlement mechanism through Spain II we might hope to see a bit more coordination and a bit less carbon copy fines for this sort of international corruption cases.
Nick, you raise an excellent question about double jeopardy. It was only briefly discussed, and then only by the non-U.S. participants. There has been much scholarship written on the issue of international double jeopardy, and at the risk of grossly over-simplifying the issue, we don't have the concept in the United States. If one looks at the Fifth Amendment, it precludes being put in jeopardy multiple times for the "same offense." Now, this is crucial — it speaks of the same "offense" and not for the same "conduct." Therefore, if one engages in conduct that violates both the FCPA and the Canadian CFPOA, then from a constitutional perspective, this is not the same "offense," but two. If one is prosecuted in Canada, then one may also be prosecuted in the United States. Moreover, there is a string of Supreme Court cases indicating that the Fifth Amendment limitation applies to multiple prosecutions by the same sovereign. Again, I'm glossing over some important bits, but ultimately, if one violates foreign anti-bribery laws, there's no protection from the same conduct triggering prosecution here in the U.S.
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