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Should we judge a bookbuilder by its cover?

As we continue to witness the aftershocks of the tsunami that ripped its way through the financial markets in 2008, many of the key global regulators have a heightened focus on bribery and corruption issues, especially in transactions involving the emerging markets.

In the UK, it is generally thought that the Serious Fraud Office (SFO) and Director of Public Prosecutions (DPP) seem keen to claim an early high profile scalp after all the publicity surrounding the arrival of the UK Bribery Act. The record fines the FSA imposed on AON in 2009 and Willis in 2011 in proceedings that focussed on regulated firms' systems and controls in this area are a strong indication of the willingness of the FSA to pursue such matters, and it is only a matter of time before it brings another case against a market participant. On the other side of the Atlantic, the US SEC has restocked its armoury with a battery of new tools designed to combat fraud and corruption (including the Dodd-Frank Act's "whistleblower" rules which offer a potential financial reward for those who report to the SEC that someone is violating federal securities laws).

With the spotlight firmly on investment banks' response to the financial crisis, and banks investing heavily in ensuring their systems and controls are adequate and appropriate globally, White & Case held a seminar as part of our "Emerging Markets Breakfast Series" to discuss the potential impact of bribery and corruption issues on banks' reputations. Given the fact that the UK Bribery Act could open banks up to a charge of aiding, abetting, counselling or procuring bribery (and senior management to charges of consenting to or conniving in bribery), one of the questions raised at that seminar concerned the challenge posed when other banks are brought into transactions (often at short notice before pricing at the instigation of the issuer) in the capacity of joint lead or co-managers. We thought it might be useful if we gave a wider circulation to our considered answer to this potentially thorny problem.

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