Special Feature Special Feature China, India and Brazil – the scope for international cooperation in criminal matters with the world’s future economic superpowers Elizabeth Robertson, Partner, Laura Atherton, Senior Associate and Zaib Malik, Associate with the Corporate Crime and Regulatory department of K&L Gates, take us through the twin concepts of mutual legal assistance and extradition and how the complex web of bilateral and multilateral treaties work in practice between western nations and China, India and Brazil. C hina, India and Brazil are widely eign policy and the global enforcement of states in criminal investigations and pro- perceived to be three of the most each country’s domestic criminal law. ceedings and generally falls into two cat- important developing economies In this article, we take a detailed look egories: requests for evidence; and in the world. They are also signatories to at the principles of mutual legal assistance requests for restraint and enforcement of a growing number of bilateral and multi- and extradition and the arrangements confiscation orders. Requests can also lateral investment treaties, tying them between the United Kingdom and these involve mutual service of procedural doc- economically closer to western nation three powerhouses of the 21st century. uments (such as summonses,) mutual states. With these increasingly close com- freezing orders and the provision of bank- mercial and financial relationships come Mutual Legal Assistance ing information and telephone intercepts. cooperation in other international spheres, Mutual Legal Assistance (MLA) refers to The legal basis for MLA falls into such as protecting the environment, for- formal cooperation between sovereign three categories: 1) domestic legislation; www. inhouse community .com 28 ASIAN-MENA COUNSEL
China, India and Brazil – the scope for international cooperation By Elizabeth Robertson, Laura Atherton and Zaib Malik, K&L Gates international agreement in place and, except in indirect tax matters, does not require reciprocal assistance from a “Before extraditing an requesting state. However, where a bilat- individual to China, India eral or international agreement is in force, the UK will adhere to the specific condi- or Brazil, the UK will tions or procedures it imposes and expect need to be satisfied that reciprocal adherence. Bilateral or multilateral MLAT fre- the alleged conduct quently will contain provisions which state amounts to a criminal that any MLA request will be subject to the domestic laws of the requested state. For offence in both the UK instance, Article 6 of the UK-India MLAT and the requesting state” states that assistance may be refused if “the action sought is contrary to the domestic laws of the requested party.” Further, with respect to China, Article 43 of UNCAC Elizabeth Robertson states international cooperation on criminal matters shall be subject to State Parties’ domestic legal systems. 2) bilateral MLA treaties (MLATs); and 3) MLAT between China and the UK is for- The Crime (International Co-operation) multilateral MLATs. mally introduced, MLA requests may be Act 2003, Proceeds of Crime Act 2002 and Bilateral MLATs provide a legal grounded in the relevant provisions of Part 32 of the Criminal Procedure Rules UNCAC and UNTOC. 4 framework for MLA through which a 2013 provide the UK domestic framework requesting state’s law enforcement author- This is what happened in January for mutual legal assistance to overseas ities can make a request for legal assist- 2008, when UK law enforcement author- jurisdictions and incoming requests and ance of a requested state. ities carried out an investigation of a would apply to all such requests relating to China, India and Brazil. 5 The United Kingdom has a bilateral case of VAT fraud and money laundering MLAT in place with Brazil 1 and India 2 , involving a Chinese company. The UK In all cases, it is an essential precondi- but there is no MLAT currently in force authorities made a MLA request based tion that the requesting state is satisfied between the UK and China. However, on on UNTOC to the Ministry of Justice of that 1) an offence has been committed or June 17th 2014, in a joint statement from China, with the hope of sending officials that there are reasonable grounds for sus- the UK and Chinese governments, it was to China for evidence collection. After pecting that an offence has been commit- announced that both the UK and China the Chinese authorities were satisfied the ted, and 2) proceedings in respect of the intended to “promote early ratification of requirements in UNTOC had been met, offence have been instituted or that the the Agreement between China and the they agreed to assist the UK. On April offence is being investigated. UK on Mutual Legal Assistance in 15, 2008, based upon substantial assist- Criminal Matters” suggesting a bilateral ance by the Chinese central authorities, Refusal of assistance MLAT between China and the UK may witness testimony and related evidential The requested state must determine be coming soon. documentation were provided to the whether to facilitate the assistance or In the absence of a bilateral MLAT, UK authorities. refuse the request. Between the UK, Brazil practitioners may look to applicable mul- The domestic legislation of the and India, the grounds for refusal for any tilateral treaties such as the United Nations requesting and requested states also will formal request for assistance are set out in Convention against Corruption (UNCAC) be important relative to effective MLA Article 4 of the UK-Brazil MLAT and and the United Nations Convention against requests. Domestic legislation often serves Article 6 of the UK-India MLAT. The Transnational Organized Crime (UNTOC). as a basis for implementing MLATs. It identified reasons for refusal include: if Chapter V of UNCAC sets out that “State may also serve as the legal basis for com- the legal principle of double jeopardy would be offended; 6 if undertaking the Parties shall afford one another the widest plying with a MLA request in the absence possible measure of mutual legal assist- of any MLAT. For instance, based on request could compromise an investiga- tion or proceedings in the requested state; 7 ance in investigations, prosecutions and domestic laws, the UK can assist any rec- judicial proceedings.” 3 Both China and ognised country or territory in the world in and (as mentioned above) if undertaking a the UK have ratified UNCAC and respect of most forms of legal assistance request would be contrary to the domestic UNTOC. Thus, even before a bilateral without there being a relevant bilateral or law of the requested state. Volume 12 Issue 3, 2014 29
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