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Us China Mutual Legal Assistance Agreement

Posted by admin on 14th April and posted in Uncategorized

The DOJ`s expectations and policy have raised concerns among multinationals, caught between DOJ expectations and local legal requirements. The PRC`s ICJAL (as well as state secrets and current data protection laws) could significantly limit an MNC`s ability to provide the DOJ with witnesses for interviews and information, particularly culpable evidence that affects the personal information or communications of a CPP national. While it is not yet necessary to test the exact impact of ICJAL on DOJ expectations, the DOJ has expressed a sensitive tone in its recent political announcements. On November 29, 2018, Assistant Attorney General Rod J. Rosenstein was held at a conference announcing changes in DOJ policy. The revised directive states that “any company seeking criminal cooperation credits must identify anyone who has played an important role in or is responsible for criminal behaviour.” Previously, the DOJ had asked companies to disclose “all relevant facts” for “any person involved.” Following the announcement, the Justice Manual (formerly known as the U.S. Attorneys Manual) was amended to recognize that there may be circumstances in which a company “really does not have access to certain evidence or where the law prohibits disclosure to the government.” Under these conditions, the company seeking to cooperate will be responsible for explaining to the public prosecutor the restrictions to which it is subject. In addition, the language of ICJAL could be interpreted to mean that these are criminal proceedings that are not initiated by a foreign government authority. ICJAL predicts that “… No institution, organization or person in the territory of the People`s Republic of China can provide evidence or assistance to a foreign country.” Language seems to prohibit private parties (for example. B MNCs) to prohibit the international disclosure of information without the consent of the Chinese authorities and to impose the obligation on the private party and not on the foreign government. This could mean that ICJAL`s licensing requirements are necessary before an MNC can voluntarily disclose to a foreign law enforcement agency evidence of possible criminal conduct a result of its operations in China and may prevent the MNC from making full and complete voluntary disclosure of all relevant facts.

In jurisdictions such as the United States, this can seriously compromise the MNC`s ability to find a favourable solution with the DOJ. THE Government of the United States of America and the Government of the People`s Republic of China, known as the Parties, aim to improve the effectiveness of cooperation between the two countries in terms of mutual legal assistance in criminal matters. , equality and mutual benefits, agreed as follows: -2- Article 1 Application field 1. In accordance with this agreement, the parties provide legal assistance in investigations, prosecutions and prosecutions. 2. Assistance includes: (a) the meaning and notification of documents; (b) to give testimony or testimony from individuals; (c) the provision of originals, certified copies or photocopies of documents, recordings or evidence; (d) the collection and conduct of expert assessments; (e) making available people who prove the evidence or help conduct investigations; (f) detection or identification of persons; (g) the execution of investigative requests, searches, freezing and seizure of evidence; (h) assistance with forfeiture proceedings; (i) the transfer of persons detained to provide evidence or to assist investigations; and (j) any other form of assistance that is not contrary to the legislation on the territory of the required contracting party.

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