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International Business Crime & Fraud

posted 1 year ago

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Sherbir Panag is the chair of Panag & Babu’s, internationally acclaimed and highly respected – compliance, investigations and white-collar crimes practice and is India’s pre-eminent white-collar crimes practitioner. Sherbir’s practice has consistently been listed as a market leader for white-collar crimes in India and is ranked by Who’s Who Legal, Chambers & Partners, among others.

 

Sherbir is an overseas door tenant with the Foundry Chambers in the United Kingdom and a senior fellow at the Wharton School’s Carol and Lawrence Zicklin Center for Business Ethics Research. In 2019, he founded the Concilium Network – an international network of highly acclaimed white-collar crime law firms.

 

Sherbir’s public service includes being a member of the B20 India’s Digital Transformation Taskforce and the Bureau of Indian Standards Committee drafting an India anti-corruption standard. He previously served on the B20 Indonesia’s Integrity and Compliance Taskforce and as the vice chairman of the Alliance for Integrity’s Advisory Group (an initiative by the Deutsche Gesellschaft für Internationale Zusammenarbeit’s).

 

What have been key trends in white-collar crime enforcement in India over the past 12 months?

 

Consistent with an over decade-long trend, white-collar crime enforcement continues to increase and remains extremely aggressive. As enforcement is conducted by a plethora of enforcement bodies each with a different mandate, investigations are becoming more long drawn and complex, with a significant amount of inter-agency competition. The propensity of pre-trial arrests is at an all-time high, with judicial reluctance to grant bail in typical white-collar crime offences becoming a key bone of contention. There are critical constitutional challenges on the mandates and powers of certain law enforcement bodies that are pending before the courts, which hopefully will make headway over the next 12-18 months.

 

The aggressive investigations and adoption of pre-trial arrest, searches, and seizures notwithstanding – the number of cases making it to trial and past trial, remain disproportionate to the number of investigations initiated. This of course also impacts the setting of substantive precedent.

 

What is the greatest challenge posed by the interplay of multiple enforcement agencies in different jurisdictions during cross-border investigations?

 

At the heart of it, the key challenge remains marrying the standards and expectations not only of different enforcement agencies but also legal systems.

 

For one, Indian law does not allow for settlements or deferred prosecution agreements or non-prosecution agreements as is prevalent in Europe and the United States. Enforcement actions that are brought culminate in trial and therefore, managing the expectation of full cooperation in one jurisdiction that includes privilege waiver, versus balancing the impact that such disclosure may have in another jurisdiction by becoming prosecutable evidence is a daunting task and requires a far more global view than a mere national law view.

 

To add to the complexity, Indian enforcement actions itself are brought forth by multiple enforcement agencies largely looking at the same facts, but from the lens of different statutes and offences. Therefore, legal strategy is getting more stretched, nuanced and incapable of a one size fits all approach; especially in cross border cases.

 

Where are you seeing the most amount of corporate prosecution? Would it still be bribery of government officials?

 

I believe the prosecutions around bribery and anti-corruption laws remains steady, but the central focus currently would be of prosecuting corporate fraud and money laundering.

 

The Indian money laundering law, which follows the proceeds of crime and predicate offence model, has seen a widening of ambit which in turn has fuelled prosecution. Again, it would be imperative that I distinguish between investigations and prosecutions that have commenced (which is a high number) against trials concluded (which is significantly low).

 

If you could implement one reform to the way business crime defence is legislated in India, what would it be?

 

That’s a tall order but I would like to advocate for a centralised prosecution and investigation agency for financial crimes. Currently we have a multitude of investigating agencies, all with their own prosecutor cadre or special appointees – which has taken its toll on both the justice system (in terms of number of cases) and prejudice to the accused persons as well.

 

What effect has digitalisation had on investigations?

 

Digitalisation has definitely made both internal and regulatory investigations more efficient. It is also one of the few places where there is parity between the technology available to the government and the private sector, except surveillance systems of course.

 

Technology tools have enabled us to digest large volumes of data much faster than we could have possibly done 20 years ago, and facilitated remote working; while also reducing costs for our clients. That said, over the past decade we have not seen any radical innovations in investigation tools, but rather existing technologies becoming more intuitive and faster. There is a massive opportunity here.

 

What makes Panag & Babu stand out from its competitors?

 

Panag & Babu is the largest multi-disciplinary white-collar crime practice in India. Barring the obvious advantage our size offers of being able to deploy more effectively across multiple mandates simultaneously, we also have the first mover advantage and experience of having acted on most of India’s prominent financial crimes cases. Our core differentiator remains our deep understanding of criminal law and our ability to appreciate different enforcement yardsticks across jurisdictions that impact multinational companies, along with a track record of demonstrated results in complex matters.

 

We are honoured and at the same time humbled by the acclaim our practice has received in terms of global rankings, market standing and to be viewed as an institution of merit.

 

As the chair of Panag & Babu, what are your main priorities for the firm’s development over the next few years?

 

Our goal for this year is consistent with what our goals for the past years has been – to continue to remain in pole position, be recognised as the first port of call for complex financial crimes cases and to execute with the highest standards of quality and integrity.

 

What are your goals for the Concilium Network as a founder?

 

The Concilium Network is an integral part of Panag & Babu as well as our members’ ability to have access to accomplished practitioners in critical jurisdictions. It remains a platform for us to candidly exchange our views, discuss important legal developments and come together as a cohesive unit as and when needed to service our clients’ seamlessly. Our goal for the coming year would be to integrate new members and also continue the search for the best practitioners in jurisdictions which are important to the existing members.

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