Tag Archives: Laurent Cohen-Tanugi

New CJIP Implementation Guidelines Further Align France with the US Anti-Corruption Enforcement Regime, But Key Differences Remain

by Laurent Cohen-Tanugi and Ann Y. Du

In December 2016, to strengthen its position in the international fight against corruption, the French government adopted a new anti-corruption law known as “Law Sapin 2.”  Law Sapin 2 introduced several innovations, including a new negotiated instrument labeled “convention judicaire d’intérêt public” (“CJIP”), modeled on the US deferred prosecution agreement (“DPA”).

On June 27, 2019, the Financial Prosecutor’s office (Procureur de la République financier, or “PRF”) published jointly with the French Anti-Corruption Agency (“AFA”) a set of guidelines on the implementation of CJIPs (the “Guidelines”). The Guidelines further align the new French enforcement regime with its US counterpart, notably with respect to its emphasis on cooperation and internal investigations, a centerpiece of the US enforcement system. However, several critical differences with US practice remain that may prove problematic in a multi-jurisdictional context.

While the Guidelines are not legally binding, they provide useful insight into future French enforcement policy and practices. Continue reading →

Scapegoating: A Structural Risk in Current U.S. Cross-Border Corporate Crime Enforcement

by Laurent Cohen-Tanugi

The interaction of corporate and individual liability in cases of corporate misconduct raises complex issues for prosecutors, management, and employees alike. Such issues, however, are generally discussed in connection with situations where corporate wrongdoing can be attributed to one or more individuals. Yet those “rogue employee” situations are neither the most difficult ones to address, nor the most frequent to arise.

More common, as evidenced by the numerous DPAs acknowledging wrongdoing entered into by corporate entities, and more problematic from a fairness standpoint, are situations where wrongdoing is instructed more or less overtly by senior management, and/or imbedded in a company’s business model and corporate culture, and implemented by lower level executives as part of their duties. The fairness issue stems from the pressure on both prosecutors and the company’s senior management to identify sanctionable individuals who may not be those ultimately responsible. And this problem is compounded in cross-border enforcement situations. Continue reading →