On 1st May, the Nassau Guardian reported that a former Cabinet minister accused of corruption while in office will not go to trial until 2020. Former Minister of Environment, Kenred Dorsett, who served in the Christie Cabinet from 2012 to 2017, was accused of bribery months after the Progressive Liberal Party (PLP) was swept from office in a landslide defeat in May 2017; and was the first of 3 PLP members to be accused of abusing their office for financial gain. Another former minister, Shane Gibson, faces trial in September, and a former Senator and Public Hospitals Authority Chairman, acquitted in January faces an appeal against that acquittal.
The Seattle Times on 1st May reported that a metals manufacturer faked test results and provided faulty materials to NASA, causing more than $700 million in losses and 2 failed satellite launch missions, according to an investigation. It said that Portland company Sapa Profiles (now known as Hydro Extrusion Portland) falsified thousands of certifications for aluminium parts over 19 years for hundreds of customers, including NASA. Norsk Hydro ASA, the current parent company of Sapa, had agreed to pay $46 million to NASA, the DoD and others to resolve criminal charges and civil claims related to the fraud, which took place from 1996 to 2015.
In the latest TRACE podcast, Thad McBride, an international trade partner with Bass, Berry & Sims, describes corruption and sanctions challenges associated with doing business in Russia and how to enter and exit this challenging market prudently.
The US DoJ has issued in April updated guidance in the context of the specific factors that prosecutors should consider in conducting an investigation of a corporation, determining whether to bring charges, and negotiating plea or other agreements. These factors include “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision” and the corporation’s remedial efforts “to implement an adequate and effective corporate compliance program or to improve an existing one”. The guidance says that it is meant to assist prosecutors in making informed decisions as to whether, and to what extent, the corporation’s compliance programme was effective at the time of the offence, and is effective at the time of a charging decision or resolution, for purposes of determining the appropriate form of any resolution or prosecution; the monetary penalty, if any; and compliance obligations contained in any corporate criminal resolution (e.g. monitoring or reporting obligations). It starts by saying that there are 3 basic questions that should be asked –
- Is the compliance programme well designed?
- Is the programme being applied earnestly and in good faith? (In other words, is the programme being implemented effectively?)
- Does the corporation’s compliance programme work in practice?
On 18th April, Crowell & Moring published an analysis which says that the “America first” policies of the current US administration mean importers to the US could face increased risk from False Claims Act (FCA) litigation. In qui tam suits the plaintiff can also make a claim where the Government recovers funds lost to fraud, being entitled to a percentage of the recovery of the penalty as a reward for exposing the wrongdoing and enabling the recovery of funds for the government. The analysis considers a case in March involving an importer of premium women’s wear from the UK. It concludes that importers now face heightened FCA risks in light of increased duties stemming from the current administration’s new tariffs, the number of anti-dumping and countervailing duty orders, plus domestic US industries closely monitoring imports for potential violations.
On 30th April, BIFA reported on the first-ever border crossing with multiple countries on mainland Europe, using the e-CMR electronic consignment note. Part of a wider strategy to digitise trade facilitation systems, it offers improved profitability, efficiency and supply chain visibility for the logistical chain and is better for the environment. It says that the UK supports initiatives to reduce the administrative burden for hauliers, and recognises the merits of the solution and its advantages in terms of controls. The CMR consignment note is an official document and contract between a consignor, carrier and addressee, and provides an audit trail of the logistics movement and is normally the sole document that the drivers of the trucks have in relation to the load they carry. The next step is for the UK to evaluate the Convention and once decided ratify with the UN the e-CMR protocol which could be in effect by the end of 2019.