Managing Partner and Head of Litigation and Dispute Management Philip Fong comments in The Edge Singapore article titled 'Are Singapore's safeguards for deferred prosecution agreements adequate?'

Eversheds Harry Elias Managing Partner and Head of Litigation and Dispute Management Philip Fong was quoted in The Edge Singapore article, titled 'Are Singapore's safeguards for deferred prosecution agreements adequate?'. The article was first published in the print version of The Edge Singapore April 9, 2018 edition.

Are Singapore's safeguards for deferred prosecution agreements adequate?

Less tha three months after Keppel Corp announced a deferred prosecution agreement (DPA) with the US Department of Justice (DOJ) that will see it pay more than US$422 million ($555 million) in fines for its involvement in a Brazilian bribery scandal, lawmakers in Singapore have passed legislation that will make it possible for similar action to be taken here against such errant companies.

While Singapore's DPA framework was enacted on the heels of Keppel's deal with the US DOJ, it is actually more aligned with the UK system. The key difference between the US and UK DPA frameworks is the presence of court oversight. Judicial oversight could allay fears of prosecutors relying excessively on DPAs in going after errant companies, adds Philip Fong, managing partner of Eversheds Harry Elias. "Criminal prosecutions against companies compared with DPAs can prove to be difficult and more exhaustive in terms of resources and time, so there may be natural tendency for prosecution to prefer DPAs over criminal prosecution, out of convenience or expediency. Having a judge scrutinize and approve each DPA on its merit will help to ensure that each DPA is still in the interests of justice and an appropriate alternative to criminal prosecution."

Fong of Eversheds Harry Elias says he would prefer having the grounds for approval of DPAs be made known. "If a judge has reviewed and approved a DPA, there should be no reason why the decision is kept from the public," he says. Paraphrasing the late British Lord Chief Justice Gordon Hewart's famous dictum, Fong says, "Justice must be done, but it must also be seen to be done."

Full article can be found in the print publication of The Edge Singapore, April 9, 2018 edition.

Author: Sharanya Pillai, The Edge Singapore