Foreword |
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Notes on Contributors |
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1 Current Challenges in Economic and Financial Criminal Law in Europe and the US |
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1 | (18) |
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1 | (1) |
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II Preliminary Observation: Economic and Financial Criminal Law as an Ill-defined Branch of Criminal Law |
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2 | (3) |
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III Challenges with Respect to Substantive Criminal Law |
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5 | (1) |
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IV Challenges with Respect to the Administration of Justice and Criminal Procedure |
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6 | (2) |
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V Challenges with Respect to Multi-agency Cooperation and Multi-disciplinary Investigations |
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8 | (2) |
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VI Challenges with Respect to Shared or Integrated Enforcement Models |
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10 | (5) |
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15 | (4) |
Part I: Challenges with Respect to Substantive Criminal Law |
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2 Prosecutors and Judges as Corporate Monitors? The US Experience |
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19 | (38) |
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19 | (1) |
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II The History of Corporate Monitors in the US |
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20 | (12) |
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A The Monitor's Role in the Legal System |
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20 | (1) |
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20 | (1) |
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21 | (1) |
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3 Corporate Compliance Monitors |
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21 | (1) |
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4 Comparison Between Corporate Monitors and Various Other Compliance Actors |
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23 | (5) |
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B The Morford Memorandum of 8 March 2008 on the Selection and Use of Monitors |
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28 | (2) |
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C Additional Guidance on the Use of Monitors: Role of the DOJ in Resolving Disputes |
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30 | (1) |
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D Trustees and Monitors in Forfeiture Cases |
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31 | (1) |
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III Policy Goals and Factors Influencing the Government's Decision to Require a Monitor |
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32 | (2) |
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IV The Operation of Monitorships |
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34 | (5) |
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A Duration of Monitorship |
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34 | (1) |
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35 | (1) |
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C The Authority of a Monitor |
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36 | (1) |
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D Monitors Must Disclose Evidence of Credible and Significant Misconduct and Waive Attorney-Client Privilege |
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37 | (1) |
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38 | (1) |
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38 | (1) |
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G Disputes Between Monitors and Corporations |
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38 | (1) |
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V Evaluating the Efficacy of Monitorships |
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39 | (7) |
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39 | (1) |
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B Evaluating the Use of a Corporate Monitor as a Sanction |
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39 | (1) |
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C Monitor's Knowledge of the Business |
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40 | (1) |
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D The Importance of Detailed Work Plans |
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40 | (1) |
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E The Monitor's Initial Report |
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41 | (1) |
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F The Importance of Cooperation |
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41 | (1) |
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G The Problem of Monitor Becoming too Close to the Corporation |
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42 | (1) |
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H Example of Monitor's Prevention of Additional Wrongdoing: Standard Chartered Bank |
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43 | (3) |
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VI Proposals for Improving Monitorships |
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46 | (10) |
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A Proposed Legislation/Reforms for Improving Monitorships |
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46 | (2) |
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B Selection and Compensation of Independent Monitors |
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48 | (1) |
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49 | (1) |
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2 Monitor Compensation and Billing |
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51 | (1) |
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3 Public Disclosure of Fees and Expenses |
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51 | (1) |
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C Access to Records, Persons and Information |
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52 | (1) |
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D Restrictions Relating to Agreements |
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52 | (1) |
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E Judicial Oversight of Agreements |
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53 | (1) |
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F Public Disclosure Relating to Reports of Monitors |
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54 | (2) |
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VII Potential Application to the European Union |
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56 | (1) |
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3 The Necessity of Compliance Programmes Under German Law-Burden' or 'Blessing'? |
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57 | (26) |
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57 | (1) |
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II Requirements to Implement a CMS |
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58 | (14) |
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A Implementation of CMSs-A New Trend? |
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58 | (1) |
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B Aggressive Extraterritorial Enforcement Actions by US Authorities Against European Companies |
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59 | (3) |
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C Growing Number of Broad Crime Definitions |
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62 | (2) |
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D Overview of the Relevant Legal Provisions with Respect to CMS Under German Law |
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64 | (1) |
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1 Corporate Governance Codex |
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64 | (1) |
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65 | (1) |
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66 | (1) |
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68 | (1) |
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E Future Legislative Initiatives |
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69 | (1) |
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1 Draft Law of North Rhine-Westphalia on Corporate Criminal Liability |
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69 | (1) |
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2 German Association of In-house Lawyers |
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70 | (1) |
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3 German Institute of Compliance |
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71 | (1) |
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71 | (1) |
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III Challenges (Burden) of Implementing a CMS |
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72 | (2) |
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72 | (1) |
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72 | (1) |
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C Implementation of Guidelines |
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73 | (1) |
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D Implementation of Sufficient Systems |
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73 | (1) |
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E Implementation of Training |
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73 | (1) |
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73 | (1) |
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G Implementation of Sanctions for Non-compliance |
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73 | (1) |
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IV The 'Blessing' of Having a CMS |
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74 | (2) |
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A Reduction of Risks for the Employees |
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74 | (1) |
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B Reduction of Risks for the Company |
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75 | (1) |
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V Ways to Implement a Cost-efficient CMS |
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76 | (2) |
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78 | (5) |
Part II: Challenges with Respect to the Administration of Justice and Criminal Procedure |
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4 Detecting Economic and Financial Crime: A Special Toolkit of Investigation Techniques in Luxembourg |
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83 | (12) |
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83 | (1) |
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II Detecting Economic Crime |
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84 | (2) |
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III Investigating Economic Crime |
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86 | (6) |
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88 | (1) |
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89 | (1) |
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C Special Investigative Measures Related to Financial Information |
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90 | (1) |
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D Direct Cooperation Between Administrative and Judicial Authorities |
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91 | (1) |
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IV Adjudicating Economic Crime and Executing the Sentence |
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92 | (2) |
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94 | (1) |
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5 The Role of Whistleblowing and Leniency in Detecting and Preventing Economic and Financial Crime: A Game of Give and Take? |
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95 | (22) |
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95 | (1) |
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II Outside Looking In and Inside Looking Out: The Interest in the Internal Life of Organisations |
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96 | (3) |
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99 | (2) |
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IV Risk and the Emerging Framework of Regulation |
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101 | (4) |
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101 | (1) |
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B Legal Security and Witness Protection |
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102 | (1) |
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103 | (1) |
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D Determining the Public Interest via Constitutional Debate |
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104 | (1) |
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V Economic Crime as the Domain of the Strategic Whistleblower and the Emergence of Leniency Programmes |
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105 | (3) |
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VI Profiling the Leniency Whistleblower |
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108 | (4) |
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A Outside the Public Gaze: The Low Profile of the Leniency Applicant |
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108 | (1) |
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B The Leniency Applicant as a Serial Cheat |
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109 | (1) |
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C The Leniency Applicant as a Turncoat |
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110 | (1) |
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D The Leniency Applicant as a Business Opportunist |
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111 | (1) |
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VII Economic Delinquency, Whistleblowing and Leniency Applicants: The Road to Moral and Legal Ambiguity |
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112 | (5) |
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A Moral Character and Consequent Legal Entitlement |
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113 | (1) |
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114 | (3) |
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6 Negotiated Justice-Balancing Efficiency and Procedural Safeguards |
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117 | (18) |
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117 | (1) |
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118 | (3) |
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118 | (1) |
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B What Is Negotiated Justice? |
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119 | (1) |
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119 | (1) |
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D Endangered Procedural Safeguards |
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120 | (1) |
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III Balancing a Shakedown System? |
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121 | (10) |
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121 | (2) |
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123 | (1) |
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1 Deferred Prosecution Agreements and Guilty Pleas in the US |
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124 | (1) |
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2 The German Examples: 'Negotiated Agreement' and 'Provisional Terminations of Proceedings' |
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127 | (4) |
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131 | (4) |
Part III: Challenges with Respect to Multi-agency Cooperation and Multi-disciplinary Investigations |
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7 Cooperation Between Administrative Authorities in Transnational Multi-agency Investigations in the EU: Still a Long Road Ahead to Mutual Recognition? |
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135 | (32) |
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135 | (3) |
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II Vertical Cooperation Between OLAF and National Authorities in the Fight against Fraud |
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138 | (18) |
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A Cooperation in OLAF Investigations with the Competent Authorities |
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138 | (1) |
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1 OLAF Investigations Under EU Law in a Comparative Perspective |
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138 | (1) |
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2 Requests for Information and Assistance by OLAF in Its Investigations (Art 7 para 7) |
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143 | (1) |
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3 Investigative Support by OLAF to National Criminal Investigation Authorities |
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149 | (1) |
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4 Admissibility of Information Collected by OLAF in Evidence in National Criminal Proceedings |
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150 | (1) |
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B Assistance and Coordination Support in Cooperation with National Authorities Outside OLAF Investigations |
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151 | (1) |
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1 Legal Basis Under the Treaty and Under 'Third Pillar' Legislation (Second Protocol) |
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151 | (1) |
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2 Mutual Assistance and Exchange of Information Between OLAF and National Authorities |
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153 | (1) |
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3 OLAF Support to the Performance of National Criminal Investigation and Enforcement |
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154 | (1) |
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4 Status of OLAF and Status of the Commission in National Criminal Proceedings |
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155 | (1) |
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III Horizontal Transnational Cooperation Between Competent National Administrative Authorities |
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156 | (7) |
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A Customs Cooperation Under the TFEU: Administrative (Art 33) and Enforcement (Art 87(2)) |
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156 | (1) |
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1 Mutual Administrative Assistance in the Field of Customs Under Regulation 515/97 |
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156 | (1) |
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2 Customs Cooperation in Criminal Matters Under the Naples II Convention |
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159 | (1) |
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B Competent Authorities of the Member States for Anti-fraud Cooperation: Proposal for Multi-disciplinary Transnational Cooperation Instruments |
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160 | (1) |
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1 Objectives of the Cooperation Between Competent Authorities Under the (Amended) Proposal |
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160 | (1) |
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2 General Concepts of the Proposal |
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162 | (1) |
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IV Conclusion and Outlook for the Future |
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163 | (4) |
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8 Jurisdictional Issues in Transnational Multi-agency and Multi-disciplinary Investigations of Economic and Financial Crimes |
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167 | (24) |
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167 | (2) |
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II Examples of Enforcement Practice |
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169 | (6) |
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A Law Enforcement in Action |
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169 | (1) |
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1 Fortis Bank: Market Abuse |
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170 | (1) |
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2 Libor/Euribor: Interest Rate Rigging Scandal |
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171 | (1) |
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3 BNP Paribas Bank: Violations of State Embargos |
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173 | (1) |
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B Evaluation of Law Enforcement in Action |
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174 | (1) |
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III Approach to Challenges Within Regional Integration Frames: The Example of the EU |
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175 | (8) |
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175 | (4) |
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179 | (4) |
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IV Approach to Challenges at a Global Transnational Level |
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183 | (5) |
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A The External Dimension of the EU |
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183 | (2) |
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185 | (2) |
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C The International Community |
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187 | (1) |
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188 | (3) |
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9 Transnational Multi-disciplinary Investigations and the Quest for Compatible Procedural Safeguards |
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191 | (20) |
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191 | (1) |
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II Procedural Safeguards: The Nation-state |
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192 | (4) |
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III Procedural Safeguards: International (Criminal) Law |
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196 | (4) |
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IV Procedural Safeguards: The European Union |
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200 | (8) |
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A Procedural Safeguards in the European Union |
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201 | (3) |
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B A Series of Observations |
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204 | (4) |
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208 | (3) |
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10 The Consecutive Application of Different Types of Sanctions and the Principle of Ne Bis in Idem: The EU and the US on Different Tracks? |
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211 | (14) |
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211 | (1) |
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II The US: A Formal Approach |
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212 | (3) |
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III The Council of Europe: A Substantive Approach |
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215 | (3) |
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IV The EU: Maintaining Dual Sanctioning Schemes? |
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218 | (3) |
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221 | (4) |
Part IV: Challenges with Respect to Shared or Integrated Enforcement Models |
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11 Challenges in the Field of Economic and Financial Crime from a European Perspective |
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225 | (8) |
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225 | (1) |
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II Special Nature of Criminal Law |
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226 | (5) |
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226 | (1) |
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B Legislating in the Field of Criminal Law |
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227 | (1) |
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C Complementary Enforcement |
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228 | (2) |
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D What Are 'Criminal' Sanctions? |
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230 | (1) |
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231 | (2) |
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12 Enforcing Prudential Banking Regulations in the Eurozone: A Reading from the Viewpoint of Criminal Law |
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233 | (32) |
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233 | (1) |
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II The European Banking Union Enforcement Mechanisms: A Shared Enforcement Model for the Eurozone |
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234 | (12) |
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A Investigatory Powers Within the SSM and the SRM |
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235 | (3) |
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B Sanctioning Powers Within the SSM and the SRM |
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238 | (1) |
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1 Direct Sanctioning Powers |
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239 | (1) |
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2 Indirect Sanctioning Powers |
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244 | (1) |
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C Judicial Protection Within the SSM and the SRM |
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245 | (1) |
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III The Interaction Between Administrative and Criminal Enforcement Systems Within the EBU Legal Framework |
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246 | (10) |
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A Intersystemic Interactions: The-Cumulative and/or Alternative-Use of Administrative and Criminal Sanctions |
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248 | (1) |
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B Intrasystemic Interactions: On the 'Penal' Nature of the Administrative Sanctions |
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249 | (1) |
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1 Administrative Pecuniary Penalties and Fines |
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250 | (1) |
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2 Periodic Penalty Payments |
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251 | (2) |
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C Which Criminal Law Principles for Which Administrative Sanctions? |
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253 | (1) |
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253 | (1) |
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254 | (2) |
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IV Towards a Coherent Framework of Enforcement: Rethinking the Role of Criminal Law in the Enforcement of Prudential Banking Regulations |
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256 | (9) |
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A What Criminal Law Can and Cannot Offer in Bank Prudential Regulation |
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258 | (2) |
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B The Self-limitation of Criminal Law as an Enforcement Tool: Reviewing the Principles of 'Ultima Ratio' and Proportionality |
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260 | (2) |
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C Criminal Law as a Normative and Epistemological Paradigm for Non-criminal Enforcement Policies |
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262 | (3) |
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13 Strategy of Integrated Enforcement: The UK Competition and Markets Authority |
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265 | (22) |
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265 | (1) |
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II The Importance of Cartel Enforcement and the Role of the CMA |
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265 | (3) |
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III The Cartel Enforcement Regime |
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268 | (4) |
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268 | (1) |
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269 | (2) |
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C Relationship Between the Criminal and Civil Regimes |
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271 | (1) |
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IV The Case for Specialist Enforcement Authorities: Meeting the Challenges of Cartel Enforcement |
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272 | (14) |
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A Inclusion of Cartel Enforcement Within an Independent Specialist Competition Agency |
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273 | (2) |
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B Inclusion of Investigatory and Prosecution Functions Within the Same Agency |
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275 | (1) |
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275 | (1) |
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276 | (2) |
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C A Dedicated Cartels Group With the Ability to Draw on Expertise from Elsewhere Within the Wider Competition Agency |
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278 | (1) |
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D Strong Relationships and Joint Working Arrangements With Other National and International Enforcement Partners |
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279 | (1) |
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1 Coordination with International Counterparts |
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279 | (1) |
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2 Building Relationships at Home |
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281 | (1) |
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3 The Cartel Offence and Other Criminality: A Mutually Reinforcing System |
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282 | (1) |
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E Political and Wider Public Support |
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283 | (3) |
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286 | (1) |
Index |
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