Roberto Pisano has a history of representing prominent individuals and entities in high-profile Italian criminal proceedings, including various cases of corruption involving international corporations and their top officials (with multiple investigations in the United States, the United Kingdom, France, etc); various cases of extradition, including the recent FIFA investigation and representation of foreign states; three cases of alleged tax fraud involving the former Italian prime minister; a case involving a major US bank in the bankruptcy of the Parmalat group; a case involving a claim for restitution of antiquities by the Italian Ministry of Culture against a prominent US museum; various appeals in foreign jurisdictions against freezing and confiscation of assets; and as Italian criminal counsel for foreign and Italian multinationals conducting internal investigations. Mr Pisano also advises and represents foreign governments.
Mr Pisano obtained a law degree, summa cum laude, from the University of Milan in 1992, and a PhD from the University of Genoa in 1999. Mr Pisano was co-chair of the Business Crime Committee of the International Bar Association in 2007 and 2008, and vice chair of the European Criminal Bar Association in 2008 and 2009. He is the author of several publications on the subject of business crime, extradition and mutual legal assistance.
GTDT: What are the key developments related to anti-corruption regulation and investigations in the past year in your jurisdiction?
Roberto Pisano: In the past year the investigation and prosecution of corruption offences has continued intensively, with particular emphasis on corporate entities and their officers, and especially on their alleged involvement in the corruption of foreign public officials. In particular, the prosecutions led by the Milan Public Prosecutor’s Office have been progressing in relation to the alleged corruption of Algerian and Nigerian public officials. With respect to Algeria, the prosecution pending before the Milan Court of First Instance against the companies Eni Spa and Saipem Spa, some of their former top managers and an agent of Saipem Spa, in relation to the alleged corruption of the former Algerian energy minister and the related alleged unlawful award of several tenders in Algeria in the period 2007 to 2010, ended in September 2018 with the acquittal of Eni and its top managers, and the conviction of Saipem and its top managers and agents, with sentences of up to five years and six months’ imprisonment. With respect to Nigeria, in the course of 2017 the Milan Public Prosecutor’s Office ended investigations and requested the committal for trial of Eni Spa and Shell, as well as some of Eni’s top managers, the former Nigerian federal Minister for Petroleum Resources and other Italian and foreign individuals in relation to the 2011 grant of oil-prospecting licences to Eni and Shell subsidiaries by the Nigerian government for an oil field in Nigerian offshore territorial waters. In December 2017, the Milan judge ordered the committal for trial of these companies and individuals, and the trial against them started in summer 2018 (while two defendants who opted for the summary trial were sentenced in September 2018 to four years’ imprisonment).
Furthermore, in December 2016, the Court of Cassation quashed the convictions previously handed down by the Milan Court of Appeal against two former top managers of Finmeccanica Spa and AgustaWestland Spa, in relation to charges of corruption of Indian public officials (and tax fraud) in connection with the awarding of a public tender for the supply of 12 helicopters to the Indian government. Appellate proceedings before a different section of the Milan Court of Appeal at the beginning of 2018 also saw the Finmeccanica executives acquitted of bribery charges arising from the helicopter deal.
GTDT: What lessons can compliance professionals learn about government enforcement priorities from recent enforcement actions?
RP: It is certainly clear that the role of compliance is more and more important, and especially that of compliance programmes for corporate entities. For a corporation to be held responsible for a corruption offence, the offence must have been committed in the interest, or for the benefit, of the corporation by its managers or employees. However, a corporation can avoid liability by proving that it had implemented an effective compliance programme, designed to prevent the commission of such an offence.
This applies in particular to offences committed by corporate employees. Where an offence was committed by senior managers, even the implementation of an effective compliance programme will not suffice to preclude liability; in such cases, responsibility is avoidable only by proving that the perpetrator acted in ‘fraudulent breach’ of corporate compliance controls.
GTDT: What are the key areas of anti-corruption compliance risk on which companies operating in your jurisdiction should focus?
RP: The most important area is certainly the one of intermediation, agency or consultancy agreements. All the most relevant investigations and prosecutions, including those we have already discussed, involve foreign citizens as key players in the alleged corruption scheme. Acting as agents, consultants or intermediaries in the foreign country, these parties allegedly do not perform an effective, qualified business activity but act as a conduit for transferring unlawful payments to the foreign public officials concerned.
Additionally, even if Italy does not apply in principle an extraterritorial jurisdiction, in practice the existence of the Italian jurisdiction is broadly asserted by Italian prosecuting authorities, and broadly affirmed by Italian courts, including with respect to foreign companies and foreign individuals. This is because it is sufficient that at least a segment of the prohibited conduct takes place in Italy – an easily satisfied condition when an Italian company is involved. The extension of jurisdiction to alleged foreign offenders then derive from the principle of their participation as accomplices to the criminal conduct of other offenders undertaken in Italy.
GTDT: Do you expect the enforcement policies or priorities of anti-corruption authorities in your jurisdiction to change in the near future? If so, how do you think that might affect compliance efforts by companies or impact their business?
RP: No, not in the near future. The most interesting developments will concern the decisions of the highest courts (the Court of Appeal and Court of Cassation) about the alleged responsibility of the corporations and managers currently subject to investigations and prosecutions. Furthermore, the evaluation by the highest courts of the effectiveness of the related compliance programmes will be extremely interesting.
GTDT: Have you seen evidence of increasing cooperation by the enforcement authorities in your jurisdiction with authorities in other countries? If so, how has that affected the implementation or outcomes of their investigations?
RP: Yes, absolutely. There are no high-profile investigations and prosecutions – including the ones we have already mentioned – that do not include extensive cooperation and exchange of information and evidence with foreign authorities. In most cases, there are multiple investigations in various states (the United States, the United Kingdom, France, etc, in addition to Italy), and there is a need, therefore, for a coordinated and coherent defence strategy for all jurisdictions (encompassing the decision whether to cooperate with prosecuting authorities, timing and contents of defence briefs and documentation to be filed, etc). In any event, these investigations and prosecutions always involve the use of letters of request to foreign authorities, to gather relevant evidence located abroad, and usually to freeze funds held in foreign bank accounts and assets located abroad. Consequently there is a need to properly ascertain and, where necessary, challenge compliance with the relevant provisions on mutual legal assistance and on the admission of evidence.
GTDT: Have you seen any recent changes in how the enforcement authorities handle the potential culpability of individuals versus the treatment of corporate entities? How has this affected your advice to compliance professionals managing corruption risks?
RP: No, as mentioned previously, Italian authorities will investigate and prosecute at the same time, and with the same emphasis, both the individual offenders and the corporations in whose interest, or for whose benefit, the criminal offence was committed. The corporation’s responsibility is qualified by the law as an ‘administrative offence’, but the matter is dealt with by a criminal judge in accordance with the rules of criminal procedure, in proceedings that are usually joined with the criminal proceedings against the corporation’s officers.
GTDT: How have developments in laws governing data privacy in your jurisdiction affected companies’ abilities to investigate and deter potential corrupt activities or cooperate with government inquiries?
RP: Certainly the laws governing data privacy have made the process of gathering information for the purposes of internal investigations much more complex for corporations. But this was necessary because these laws protect fundamental human rights. In any case, in Italy, since 2000, new provisions have entitled criminal lawyers to carry out ‘defence investigations’ on behalf of clients, including corporate entities, with express derogation from most of the requirements of privacy law to the extent necessary for the performance of the investigations.
The Inside Track
What are the critical abilities or experience for an adviser in the anti-corruption area in your jurisdiction?
It is crucial to have experience in representing clients in the frame of high-profile corruption trials, because the practice might be very different from the theory (especially where there are multiple investigations in various jurisdictions, such as the United States and the United Kingdom).
What issues in your jurisdiction make advising on anti-corruption compliance unique?
As I have already stated, for advice to be appropriate and effective, a deep knowledge of the specific context is required, namely concrete experience of interacting with prosecuting authorities and courts in the frame of Italian investigations and trials (to predict, where possible, the likely strategy or conduct of the prosecutors and the rulings of the courts in the light of certain determined elements).
What have been the most interesting or challenging anti-corruption matters you have handled recently?
Among the most interesting have been three separate cases of alleged corruption of foreign public officials, involving corporate entities, their managers and foreign agents or consultants. The existence of multiple investigations in various states (the United States, the United Kingdom, etc) in itself created a considerable degree of complexity, requiring all steps of the defence activity to be carefully coordinated with foreign counsel. Additionally, freezing orders on foreign bank accounts and assets were issued, which consequently had to be challenged properly, again in close coordination with foreign counsel.
Studio Legale Pisano