The US Department of Justice's Criminal Division has reported a marked increase in Foreign Corrupt Practices Act (FCPA) enforcement for 2024, with more corporate resolutions and higher global monetary amounts than any year since 2020. The Division also achieved a record number of successful trials against individuals and increased individual convictions and charges. Key policy developments include the launch of the International Corporate Anti-Bribery Initiative to enhance cooperation with foreign authorities, updates to the Corporate Enforcement and Voluntary Self-Disclosure Policy, and the introduction of a Corporate Whistleblower Awards Pilot Program. Additionally, the Department has revised its policy to incentivise companies to report misconduct within 120 days of receiving an internal whistleblower report, offering the possibility of a declination for timely self-disclosure.

The Criminal Division of the US Department of Justice has launched a Corporate Whistleblower Awards Pilot Program, to help uncover and prosecute corporate crime. Whistleblowers under the program, who provide accurate information resulting in successful forfeiture may be eligible for an award. The information provided must relate to certain crimes involving financial institutions, foreign corruption or domestic misconduct by companies or healthcare fraud schemes involving private insurance plans.

The US Department of Justice has concluded an investigation into AAR CORP, a publicly traded aviation services company, for violations of the Foreign Corrupt Practices Act. AAR CORP has agreed to pay over $55m to resolve allegations of bribery schemes in Nepal and South Africa between 2015 and 2020. The company entered into an 18-month non-prosecution agreement, admitting to conspiring to bribe government officials to secure contracts with state-owned airlines, resulting in nearly $24 million in illicit profits. The settlement includes a criminal penalty, administrative forfeiture and disgorgement to the SEC. While AAR CORP received credit for self-reporting and cooperation, it did not qualify for full voluntary disclosure under the Department of Justice policies. Two individuals have been previously charged in related cases.

The US Department of Justice has announced a settlement with McKinsey & Company Africa (Pty) Ltd, requiring the firm to pay over $122m to resolve an investigation into bribery of South African government officials between 2012 and 2016. The company entered into a three-year deferred prosecution agreement, admitting to conspiracy to violate the Foreign Corrupt Practices Act. The scheme involved bribing officials at state-owned entities Transnet and Eskom to secure lucrative consulting contracts. A former senior partner, Vikas Sagar, has pleaded guilty to a related charge. The resolution, coordinated with South African authorities, reflects a 35% reduction in penalties due to McKinsey Africa's cooperation and remedial measures. This case marks the third coordinated resolution between the US and South Africa in two years, demonstrating the efficacy of the International Corporate Anti-Bribery initiative.

The US Department of Justice has sentenced Manuel Chang, the former Finance Minister of Mozambique, to 102 months in prison for his role in a $2 billion international fraud, bribery, and money laundering scheme. Chang was convicted of conspiracy to commit wire fraud and conspiracy to commit money laundering, having received $7 million in bribes to approve fraudulent loans. The scheme involved misrepresenting the use of loan proceeds to banks and investors, with over $200 million diverted for bribes and kickbacks. This resulted in substantial losses to investors due to loan defaults. Chang has been ordered to forfeit $7 million, with a restitution amount to be determined at a later date. This case is linked to a previous settlement in 2021 where Credit Suisse admitted to defrauding investors in related loan arrangements in coordinated enforcement action between the US and UK.

The US Department of the Treasury's Office of Foreign Asset Control (OFAC) has designated cybersecurity experts who are affiliated with the Islamic State of Iraq and Syria (ISIS). This follows the cybersecurity experts providing ISIS leadership and supporters with training in cybersecurity, enabling virtual currency use and supporting their recruitment. The OFAC have also designated a financial facilitator of ISIS who transferred funds to ISIS-affiliated individuals in Syria. This action means that the property, interests and entities of the designated individuals 'that are in the US or in possession or control of US or control of US persons will be blocked and reported to OFAC'.

Arbitration analysis: Luxembourg- and Netherlands-based petitioners commenced an arbitration at the World Bank’s International Center for Settlement of Investment Disputes (ICSID) under the Energy Charter Treaty (ECT), against Spain because it ‘walked back’ incentives to attract investments in renewable energy after petitioners invested approximately €139.5m in solar energy projects. The ICSID tribunal ruled in favor of the petitioners, awarding €112m in damages, plus interest and costs. Petitioners filed a Motion to Confirm the arbitral award and the respondent Spain filed a Motion to Dismiss the petitioners’ proceeding to confirm an ICSID arbitral award issued pursuant to the ECT. Spain’s Motion was denied because the District Court had personal and subject-matter jurisdiction over Spain under the arbitration exception to immunity under the US Foreign Sovereign Immunities Act (FSIA), the pecuniary ICSID award was entitled to be given full faith and credit pursuant to US law applicable to ICSID awards, and, most importantly, because the Foreign Sovereign Compulsion Doctrine was inapplicable to shield Spain from liability to EU investors arbitrating under the ICSID Convention in which comity concerns are ‘baked into’ the Convention. Written by Charles H Camp, president; and Joesphine Gray, law clerk, Law Offices of Charles H. Camp, PC, Washington, DC.

Arbitration analysis: MOL, a Hungarian oil and gas company, brought an arbitration against Croatia in ICSID alleging violation of the Energy Charter Treaty (‘ECT’). ICSID awarded MOL damages, finding that Croatia had breached its ECT obligations. MOL filed a petition to enforce the ICSID award in the DC District Court. Croatia moved to dismiss based on sovereign immunity, personal jurisdiction, forum non conveniens, and failure to state a claim on the merits. The court held there was jurisdiction because the ECT is an agreement to arbitrate that waives sovereign immunity under the United States Foreign Sovereign Immunities Act (‘FSIA’). The court also held that MOL’s claim was one in which the court could grant relief because: (1) the ICSID award is entitled to full faith and credit; (2) the act of state defense does not apply here; and (3) the foreign sovereign compulsion doctrine does not bar enforcement of this award. This case has practical implications for ECT signatories who wish to seek or avoid enforcement of ICSID awards in the United States as it shows a continued pattern by the courts in holding that the ECT is an arbitration agreement under the FSIA, thereby removing any signatories's defense of sovereign immunity in enforcing ICSID awards. Written by Charles H. Camp, president; Matthew Brajuka, law clerk; and Kale Wright, law clerk; Law Offices of Charles H. Camp, PC, Washington, DC.

Arbitration analysis: Turkish plaintiff Etrak and defendant Libya entered into a settlement agreement following Etrak’s prevailing against Libya in Libya’s Court of First Instance in Beida, Libya. After Libya breached the settlement agreement, Etrak commenced a Swiss arbitration brought under Libya and Turkey's bilateral investment protection treaty (the ‘BIT’), obtaining a favorable arbitral award successfully arguing that the settlement agreement was an investment under the BIT. Etrak then commenced this action in the US District Court to confirm the Swiss arbitration award. While arbitral proceedings were pending, and in further violation of the settlement agreement, Libya returned to its courts and successfully appealed the adverse judgment entered by the Libyan Court of First Instance. Libya made the novel argument in the District Court that its successful post-settlement and post-arbitration appeal was res judicata and prevented the District Court from confirming the Swiss arbitral award. Libya also unsuccessfully argued that the District Court should not confirm the arbitral award because of ongoing parallel confirmation proceedings in Turkey and Curaçao. Written by Charles H. Camp, president; Matthew Brajuka, law clerk; and Kale Wright, law clerk; Law Offices of Charles H. Camp, PC, Washington, DC.

Arbitration analysis: Dutch companies NextEra Energy Global Holdings BV and NextEra Energy Spain Holdings BV (NextEra) invested in Spanish solar energy plants benefiting from the then favourable economic tariffs for investors. These projects were hindered by dramatic regulatory changes stressed by EU authorities, leading Spain to revoke the incentives regime. Under the Energy Charter Treaty (ECT), NextEra sought redress by requesting arbitration before the International Centre for Settlement of Investment Disputes (ICSID), winning a €291m award (ICSID Award). Although the ICSID tribunal ruled that Spain had breached the ECT, the country has refused to pay, supported mainly by the Achmea and Micula judgments of the Court of Justice of the European Union (CJEU) that declared intra-EU arbitration incompatible with the EU laws, forcing NextEra to seek enforcement in the US. On 15 February, 2023, Columbia district judge Tanya S Chutkan rejected Spain’s motion to dismiss the ICSID award’s confirmation and allowed NextEra’s cross-motion for summary judgment. Furthermore, the district judge partially granted NextEra an anti-suit injunction against Spain, restraining the country from pursuing proceedings it had initiated in the Netherlands to prevent the recognition of the ICSID Award in the US. For its importance, this decision may mark the final stage in Nextera’s award enforcement odyssey, which Spain has persistently opposed as part of its global strategy. Written by Josep Galvez, English barrister, Del Canto Chambers (London) and Spanish Abogado, Litigo Partners (Barcelona).

The US Department of Justice (DoJ) has released its first department-wide corporate enforcement policy for criminal matters, aimed at promoting uniformity and fairness in the prosecution of white-collar crimes. The policy applies to all corporate criminal cases handled by the DoJ, except those relating to antitrust matters and supersedes existing component-specific and US Attorney's Office-specific corporate enforcement policies currently in effect. It incentivises companies to voluntarily disclose misconduct, cooperate in investigations and fix issues promptly. Where companies meet those criteria, and in the absence of certain limited aggravating circumstances, the DoJ will decline to prosecute them.

ARCHIVED–this archived case hub reflects the position at the date of the decision of 28 April 2020; it is no longer maintained. NOTE—appeals lodged before the General Court in Cases T- 386/21 and T- 406/21 See further: timeline. Case facts Outline European Commission Article 101 TFEU investigation into the exchange of commercially sensitive information and price coordination concerning US dollar denominated supra-sovereign, sovereign and agency bonds (Case AT.40346). Latest development On 28 April 2021, the Commission issued its infringement decision against Bank of America Merrill Lynch, Crédit Agricole and Credit Suisse for participating in a cartel in the secondary trading market within the EEA of Supra-sovereign, Sovereign and Agency bonds denominated in US Dollars. The cartel involved a core group of traders at these investments banks, who knew each other on a personal level. The Commission found that, during a five-year period, the traders provided each other with recurring updates on their trading activities, exchanged commercially sensitive information, coordinated on prices shown to their customers, or to the market in general