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Challenges in the Field of Economic and Financial Crime in Europe and the US [Kõva köide]

Edited by (University of Luxembourg), Edited by (University of Liège, Belgium)
  • Formaat: Hardback, 312 pages, kõrgus x laius: 234x156 mm, kaal: 592 g
  • Sari: Hart Studies in European Criminal Law
  • Ilmumisaeg: 23-Feb-2017
  • Kirjastus: Hart Publishing
  • ISBN-10: 150990803X
  • ISBN-13: 9781509908035
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  • Formaat: Hardback, 312 pages, kõrgus x laius: 234x156 mm, kaal: 592 g
  • Sari: Hart Studies in European Criminal Law
  • Ilmumisaeg: 23-Feb-2017
  • Kirjastus: Hart Publishing
  • ISBN-10: 150990803X
  • ISBN-13: 9781509908035
Teised raamatud teemal:
In the past few years, criminal justice systems have faced important global challenges in the field of economic and financial crime. The 2008 financial crisis revealed how strongly financial markets and economies are interconnected and illustrated that misconduct in the economic and financial sectors is often of a systemic nature, with wide-spread consequences for a large number of victims. The prevention, control and punishment of such crimes is thus confronted with a strong globalisation. Moreover, continuous technological evolutions and socio-economic developments make the distinction between socially desirable and undesirable behaviour more problematic. Besides, economic and financial misconduct is notoriously difficult to detect and investigate. In light of these challenges, legislators and law enforcers have been searching for adequate responses to combat economic and financial crime by adapting existing policies, norms and practices and by creating new enforcement mechanisms.The purpose of this volume is to analyse those challenges in the field of economic and financial crime from different perspectives, and to examine which particular solutions criminal justice systems across Europe give to those challenges.The volume has four chapters. The first chapter focuses on a number of key questions with respect to substantive criminal law, whereas the second chapter will address issues affecting the administration of justice and criminal procedure. Chapter three then explores particular challenges concerning multi-agency cooperation and multi-disciplinary investigations. Finally, chapter four will concentrate on issues regarding shared or integrated enforcement models.

Arvustused

...the book gives a clear and accessible description of the different challenges. It thereby raises very intriguing questions and stimulates further research. Considering that the introductory chapter mentions these as the primary ambitions of the book, we can conclude that the book achieves its principal aims. -- Katrien Verhesschen * European Law Blog *

Foreword v
Notes on Contributors xv
1 Current Challenges in Economic and Financial Criminal Law in Europe and the US
1(18)
Katalin Ligeti
Vanessa Franssen
I Defining the Problem
1(1)
II Preliminary Observation: Economic and Financial Criminal Law as an Ill-defined Branch of Criminal Law
2(3)
III Challenges with Respect to Substantive Criminal Law
5(1)
IV Challenges with Respect to the Administration of Justice and Criminal Procedure
6(2)
V Challenges with Respect to Multi-agency Cooperation and Multi-disciplinary Investigations
8(2)
VI Challenges with Respect to Shared or Integrated Enforcement Models
10(5)
VII Concluding Remarks
15(4)
Part I: Challenges with Respect to Substantive Criminal Law
2 Prosecutors and Judges as Corporate Monitors? The US Experience
19(38)
Bruce Zagaris
I Introduction
19(1)
II The History of Corporate Monitors in the US
20(12)
A The Monitor's Role in the Legal System
20(1)
1 The Antecedents
20(1)
2 The Original Monitors
21(1)
3 Corporate Compliance Monitors
21(1)
4 Comparison Between Corporate Monitors and Various Other Compliance Actors
23(5)
B The Morford Memorandum of 8 March 2008 on the Selection and Use of Monitors
28(2)
C Additional Guidance on the Use of Monitors: Role of the DOJ in Resolving Disputes
30(1)
D Trustees and Monitors in Forfeiture Cases
31(1)
III Policy Goals and Factors Influencing the Government's Decision to Require a Monitor
32(2)
IV The Operation of Monitorships
34(5)
A Duration of Monitorship
34(1)
B Choosing a Monitor
35(1)
C The Authority of a Monitor
36(1)
D Monitors Must Disclose Evidence of Credible and Significant Misconduct and Waive Attorney-Client Privilege
37(1)
E Conflict of Interest
38(1)
F Submission of Reports
38(1)
G Disputes Between Monitors and Corporations
38(1)
V Evaluating the Efficacy of Monitorships
39(7)
A Settlement Agreements
39(1)
B Evaluating the Use of a Corporate Monitor as a Sanction
39(1)
C Monitor's Knowledge of the Business
40(1)
D The Importance of Detailed Work Plans
40(1)
E The Monitor's Initial Report
41(1)
F The Importance of Cooperation
41(1)
G The Problem of Monitor Becoming too Close to the Corporation
42(1)
H Example of Monitor's Prevention of Additional Wrongdoing: Standard Chartered Bank
43(3)
VI Proposals for Improving Monitorships
46(10)
A Proposed Legislation/Reforms for Improving Monitorships
46(2)
B Selection and Compensation of Independent Monitors
48(1)
1 Selection of Monitors
49(1)
2 Monitor Compensation and Billing
51(1)
3 Public Disclosure of Fees and Expenses
51(1)
C Access to Records, Persons and Information
52(1)
D Restrictions Relating to Agreements
52(1)
E Judicial Oversight of Agreements
53(1)
F Public Disclosure Relating to Reports of Monitors
54(2)
VII Potential Application to the European Union
56(1)
3 The Necessity of Compliance Programmes Under German Law-Burden' or 'Blessing'?
57(26)
Alexander Cappel
I Introduction
57(1)
II Requirements to Implement a CMS
58(14)
A Implementation of CMSs-A New Trend?
58(1)
B Aggressive Extraterritorial Enforcement Actions by US Authorities Against European Companies
59(3)
C Growing Number of Broad Crime Definitions
62(2)
D Overview of the Relevant Legal Provisions with Respect to CMS Under German Law
64(1)
1 Corporate Governance Codex
64(1)
2 Corporate Law
65(1)
3 Administrative Law
66(1)
4 Criminal Law
68(1)
E Future Legislative Initiatives
69(1)
1 Draft Law of North Rhine-Westphalia on Corporate Criminal Liability
69(1)
2 German Association of In-house Lawyers
70(1)
3 German Institute of Compliance
71(1)
F Provisional Conclusion
71(1)
III Challenges (Burden) of Implementing a CMS
72(2)
A Corporate Structure
72(1)
B Compliance Resources
72(1)
C Implementation of Guidelines
73(1)
D Implementation of Sufficient Systems
73(1)
E Implementation of Training
73(1)
F Supervision
73(1)
G Implementation of Sanctions for Non-compliance
73(1)
IV The 'Blessing' of Having a CMS
74(2)
A Reduction of Risks for the Employees
74(1)
B Reduction of Risks for the Company
75(1)
V Ways to Implement a Cost-efficient CMS
76(2)
VI Conclusion
78(5)
Part II: Challenges with Respect to the Administration of Justice and Criminal Procedure
4 Detecting Economic and Financial Crime: A Special Toolkit of Investigation Techniques in Luxembourg
83(12)
Jeannot Nies
I Introduction
83(1)
II Detecting Economic Crime
84(2)
III Investigating Economic Crime
86(6)
A 'Mini-instruction'
88(1)
B Access to Databases
89(1)
C Special Investigative Measures Related to Financial Information
90(1)
D Direct Cooperation Between Administrative and Judicial Authorities
91(1)
IV Adjudicating Economic Crime and Executing the Sentence
92(2)
V Conclusion
94(1)
5 The Role of Whistleblowing and Leniency in Detecting and Preventing Economic and Financial Crime: A Game of Give and Take?
95(22)
Christopher Harding
I Introduction
95(1)
II Outside Looking In and Inside Looking Out: The Interest in the Internal Life of Organisations
96(3)
III Contexts
99(2)
IV Risk and the Emerging Framework of Regulation
101(4)
A Legal Defence
101(1)
B Legal Security and Witness Protection
102(1)
C Legal Reward
103(1)
D Determining the Public Interest via Constitutional Debate
104(1)
V Economic Crime as the Domain of the Strategic Whistleblower and the Emergence of Leniency Programmes
105(3)
VI Profiling the Leniency Whistleblower
108(4)
A Outside the Public Gaze: The Low Profile of the Leniency Applicant
108(1)
B The Leniency Applicant as a Serial Cheat
109(1)
C The Leniency Applicant as a Turncoat
110(1)
D The Leniency Applicant as a Business Opportunist
111(1)
VII Economic Delinquency, Whistleblowing and Leniency Applicants: The Road to Moral and Legal Ambiguity
112(5)
A Moral Character and Consequent Legal Entitlement
113(1)
B Systemic Risks
114(3)
6 Negotiated Justice-Balancing Efficiency and Procedural Safeguards
117(18)
Sabine Gless
Nadine Zurkinden
I Introduction
117(1)
II Terminology
118(3)
A What Is Justice?
118(1)
B What Is Negotiated Justice?
119(1)
C What Is Efficiency?
119(1)
D Endangered Procedural Safeguards
120(1)
III Balancing a Shakedown System?
121(10)
A Laying Out the Ground
121(2)
B Examples
123(1)
1 Deferred Prosecution Agreements and Guilty Pleas in the US
124(1)
2 The German Examples: 'Negotiated Agreement' and 'Provisional Terminations of Proceedings'
127(4)
IV Closing Remarks
131(4)
Part III: Challenges with Respect to Multi-agency Cooperation and Multi-disciplinary Investigations
7 Cooperation Between Administrative Authorities in Transnational Multi-agency Investigations in the EU: Still a Long Road Ahead to Mutual Recognition?
135(32)
Lothar Kuhl
I Introduction
135(3)
II Vertical Cooperation Between OLAF and National Authorities in the Fight against Fraud
138(18)
A Cooperation in OLAF Investigations with the Competent Authorities
138(1)
1 OLAF Investigations Under EU Law in a Comparative Perspective
138(1)
2 Requests for Information and Assistance by OLAF in Its Investigations (Art 7 para 7)
143(1)
3 Investigative Support by OLAF to National Criminal Investigation Authorities
149(1)
4 Admissibility of Information Collected by OLAF in Evidence in National Criminal Proceedings
150(1)
B Assistance and Coordination Support in Cooperation with National Authorities Outside OLAF Investigations
151(1)
1 Legal Basis Under the Treaty and Under 'Third Pillar' Legislation (Second Protocol)
151(1)
2 Mutual Assistance and Exchange of Information Between OLAF and National Authorities
153(1)
3 OLAF Support to the Performance of National Criminal Investigation and Enforcement
154(1)
4 Status of OLAF and Status of the Commission in National Criminal Proceedings
155(1)
III Horizontal Transnational Cooperation Between Competent National Administrative Authorities
156(7)
A Customs Cooperation Under the TFEU: Administrative (Art 33) and Enforcement (Art 87(2))
156(1)
1 Mutual Administrative Assistance in the Field of Customs Under Regulation 515/97
156(1)
2 Customs Cooperation in Criminal Matters Under the Naples II Convention
159(1)
B Competent Authorities of the Member States for Anti-fraud Cooperation: Proposal for Multi-disciplinary Transnational Cooperation Instruments
160(1)
1 Objectives of the Cooperation Between Competent Authorities Under the (Amended) Proposal
160(1)
2 General Concepts of the Proposal
162(1)
IV Conclusion and Outlook for the Future
163(4)
8 Jurisdictional Issues in Transnational Multi-agency and Multi-disciplinary Investigations of Economic and Financial Crimes
167(24)
John Vervaele
I Introduction
167(2)
II Examples of Enforcement Practice
169(6)
A Law Enforcement in Action
169(1)
1 Fortis Bank: Market Abuse
170(1)
2 Libor/Euribor: Interest Rate Rigging Scandal
171(1)
3 BNP Paribas Bank: Violations of State Embargos
173(1)
B Evaluation of Law Enforcement in Action
174(1)
III Approach to Challenges Within Regional Integration Frames: The Example of the EU
175(8)
A Challenges
175(4)
B Solutions at EU Level
179(4)
IV Approach to Challenges at a Global Transnational Level
183(5)
A The External Dimension of the EU
183(2)
B The US
185(2)
C The International Community
187(1)
V Solutions
188(3)
9 Transnational Multi-disciplinary Investigations and the Quest for Compatible Procedural Safeguards
191(20)
Michiel Luchtman
I Introduction
191(1)
II Procedural Safeguards: The Nation-state
192(4)
III Procedural Safeguards: International (Criminal) Law
196(4)
IV Procedural Safeguards: The European Union
200(8)
A Procedural Safeguards in the European Union
201(3)
B A Series of Observations
204(4)
V Concluding Remarks
208(3)
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?
211(14)
Martin Bose
I Introduction
211(1)
II The US: A Formal Approach
212(3)
III The Council of Europe: A Substantive Approach
215(3)
IV The EU: Maintaining Dual Sanctioning Schemes?
218(3)
V Conclusion
221(4)
Part IV: Challenges with Respect to Shared or Integrated Enforcement Models
11 Challenges in the Field of Economic and Financial Crime from a European Perspective
225(8)
Jeroen Blomsma
I Introduction
225(1)
II Special Nature of Criminal Law
226(5)
A Legal Bases
226(1)
B Legislating in the Field of Criminal Law
227(1)
C Complementary Enforcement
228(2)
D What Are 'Criminal' Sanctions?
230(1)
III Outlook
231(2)
12 Enforcing Prudential Banking Regulations in the Eurozone: A Reading from the Viewpoint of Criminal Law
233(32)
Silvia Allegrezza
Ioannis Rodopoulos
I Introduction
233(1)
II The European Banking Union Enforcement Mechanisms: A Shared Enforcement Model for the Eurozone
234(12)
A Investigatory Powers Within the SSM and the SRM
235(3)
B Sanctioning Powers Within the SSM and the SRM
238(1)
1 Direct Sanctioning Powers
239(1)
2 Indirect Sanctioning Powers
244(1)
C Judicial Protection Within the SSM and the SRM
245(1)
III The Interaction Between Administrative and Criminal Enforcement Systems Within the EBU Legal Framework
246(10)
A Intersystemic Interactions: The-Cumulative and/or Alternative-Use of Administrative and Criminal Sanctions
248(1)
B Intrasystemic Interactions: On the 'Penal' Nature of the Administrative Sanctions
249(1)
1 Administrative Pecuniary Penalties and Fines
250(1)
2 Periodic Penalty Payments
251(2)
C Which Criminal Law Principles for Which Administrative Sanctions?
253(1)
1 Substantive Principles
253(1)
2 Procedural Principles
254(2)
IV Towards a Coherent Framework of Enforcement: Rethinking the Role of Criminal Law in the Enforcement of Prudential Banking Regulations
256(9)
A What Criminal Law Can and Cannot Offer in Bank Prudential Regulation
258(2)
B The Self-limitation of Criminal Law as an Enforcement Tool: Reviewing the Principles of 'Ultima Ratio' and Proportionality
260(2)
C Criminal Law as a Normative and Epistemological Paradigm for Non-criminal Enforcement Policies
262(3)
13 Strategy of Integrated Enforcement: The UK Competition and Markets Authority
265(22)
Stephen Blake
I Introduction
265(1)
II The Importance of Cartel Enforcement and the Role of the CMA
265(3)
III The Cartel Enforcement Regime
268(4)
A The Criminal Regime
268(1)
B The Civil Regime
269(2)
C Relationship Between the Criminal and Civil Regimes
271(1)
IV The Case for Specialist Enforcement Authorities: Meeting the Challenges of Cartel Enforcement
272(14)
A Inclusion of Cartel Enforcement Within an Independent Specialist Competition Agency
273(2)
B Inclusion of Investigatory and Prosecution Functions Within the Same Agency
275(1)
1 The Roskill Model
275(1)
2 Leniency
276(2)
C A Dedicated Cartels Group With the Ability to Draw on Expertise from Elsewhere Within the Wider Competition Agency
278(1)
D Strong Relationships and Joint Working Arrangements With Other National and International Enforcement Partners
279(1)
1 Coordination with International Counterparts
279(1)
2 Building Relationships at Home
281(1)
3 The Cartel Offence and Other Criminality: A Mutually Reinforcing System
282(1)
E Political and Wider Public Support
283(3)
V Conclusion
286(1)
Index 287
Katalin Ligeti is Professor of European and International Criminal Law at the University of Luxembourg. Vanessa Franssen is an assistant professor at the University of Liège, an affiliated senior researcher at the KU Leuven and a guest lecturer at the University of Luxembourg.