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U.S., EU Increase Cooperation on Crime Enforcement

Melissa Klein Aguilar | February 11, 2010

The increasing trend of cooperation between U.S. law enforcers and regulators and their overseas counterparts got another boost recently, with new agreements now in effect with the European Union that make it easier to extradite people charged with transnational crimes and allow more information sharing.

The U.S. Department of Justice announced 56 agreements, effective Feb. 1, with the European Union regarding extradition and mutual legal assistance. In addition to two overarching agreements with the EU, the United States and each EU Member State entered into new agreements or adopted changes to their agreements.

The agreements, which had been under negotiation since the Sept. 11, 2001, terrorist attacks, represent a "milestone in cooperation on criminal matters" between the EU, its Member States, and the United States, according to a DoJ press release.

TerwilligerGeorge Terwilliger, Former Deputy Attorney General who now heads the white-collar practice at White & Case, says the gap between the globalization of business and the globalization of business crime enforcement "is closing rapidly. These treaties are another milestone in that progression."

The new treaties will make it easier for U.S. and EU enforcement authorities to investigate and prosecute violations of antibribery and antifraud statutes, including the Foreign Corrupt Practices Act, by individuals and corporations overseas, attorneys at White & Case note in an alert.

At a time when U.S. enforcement authorities are dedicating more time and resources to FCPA, conspiracy, and other transnational fraud investigations, the authors say the new agreements "will add yet another weapon to their arsenal."

Among other things, the agreement on extradition replaces lists of offenses that are deemed extraditable with a more flexible dual criminality standard.

Dual criminality typically requires only that the charged offense constitute a criminal act in both countries, regardless of the name given the offense or the listing of the offense in the applicable treaty, the W&C alert notes. Under prior extradition treaties, individuals charged could potentially avoid extradition if the charged crimes weren't listed in the treaty, since new criminal statutes were added to countries' criminal codes after the effective date of the treaties that had been in effect for years.

The extradition agreement also contains measures to streamline the exchange of information and transmission of documents, sets rules for determining priority in competing requests for surrender of a fugitive, and contains a provision allowing extradition to be conditioned on non-application of the death penalty, according to DoJ.

Meanwhile, the agreement on mutual legal assistance allows "prompt identification" of financial account information in criminal investigations; permits the acquisition of evidence, including testimony, via video conferencing, and authorizes U.S. criminal investigators and prosecutors to participate in joint investigative teams in the EU.

MLATs, which emerged in the 1970s as a way to deal with bank secrecy laws in Switzerland, are commonly used to obtain bank records maintained in a foreign country.

Historically, MLATs required the host country where evidence was located to deputize a local prosecutor to act on behalf of the requesting prosecutor for purposes of issuing subpoenas for documents and testimony, and conducting witness examinations, the alert notes. By authorizing the use of joint investigative teams and video conferencing, requesting prosecutors presumably will be able to personally examine witnesses without traveling to the host country, "significantly increasing the pace of transnational investigations and reducing costs."

"One of the key developments that these treaties reflect is that individual business leaders and manages are in the enforcement target zone," Terwilliger tells Compliance Week. "Increased cooperation means transnational risk for these individuals."

He says U.S. and foreign companies have to take steps to address the globalization of enforcement and increased cooperation of national enforcement authorities with their foreign counterparts. In addition to aggressively managing increased risks in legal compliance, he says that means "not just advanced compliance policies, but aggressive steps to address potential incidents of non-compliance."