Lloyd's Maritime and Commercial Law Quarterly
CROSS-BORDER CRIMINAL INVESTIGATIONS: THE UNITED STATES MARSHALL AT RECEPTION
Nicholas Purnell *
The growth of international business, the globalization of markets and the development of e-commerce have made it increasingly difficult to identify the physical location of suspected corrupt and anti-competitive practices. This article considers strategies employed in different jurisdictions to deal with such abuses and their ramifications.
Newspaper columns are increasingly becoming filled with accounts of criminal investigations and trials concerning United Kingdom and European corporations and their employees and officers taking place in foreign jurisdictions—principally in the United States of America. Whilst this phenomenon has been steadily developing over recent years, the degree of aggression that is now characterizing the policy of the US Department of Justice is rooted in its growing disillusion with law enforcement agencies in the UK and Europe and its corresponding and increasing confidence that it can and does achieve results by undertaking its own prosecutions of foreign nationals which are in the interests of American consumers.
By the 1980s, if not before, governments world-wide were becoming increasingly concerned that the growth of international business, the globalization of markets and the development of e-commerce were making it increasingly difficult to identify a precise physical location at which a questionable transaction had taken place. If the transaction gave rise to investigation because of suspected corruption or anti-competitive practice, the territorially based jurisdiction model of domestic legislation was proving impotent to tackle these cross-border activities. At the same time, corruption and cartel activity were perceived as becoming almost endemic in business transactions in certain areas of the world and in particular industries. The economic harm, the obstruction to sustainable development and the potential for undermining respect for human rights created an ineluctable necessity for the introduction of measures internationally to promote higher standards of business fairness and propriety. It was hoped that a co-ordinated strategy to tackle corruption and anti-competitive practices might provide the businessman and woman with a supporting framework within which to negotiate and undertake business commitments. Recent history has also demonstrated that corrupt practices provide obvious targets for infiltration by organized crime and terrorist activity into legitimate areas of business.
The dual role of the Securities and Exchange Commission (“SEC”) in the US as regulator and prosecutor with access to civil and criminal processes provided it in the mid-1970s