White-collar Crime Law Guide

Why white-collar crime?

Commercial misconduct and corporate crime have existed for as long as the law has permitted individuals or groups of individuals to incorporate, allowing them to minimise their personal liability and deflect liability to a corporate entity. Yet companies only act through the conduct of individuals (directors, officers, employees and many third-party agents). The challenge in addressing corporate misconduct or white-collar crime, whether civil or criminal in nature, is how to most effectively attribute the conduct of certain individuals to that of an incorporated entity. As many of us will recognise, regulatory agencies across the world have often focused their investigation and enforcement activities against individuals, given the problems faced by attributing conduct to a legal entity.

This guide provides some invaluable insights into the global challenges — many of them similar — that countries face in tackling white-collar crime. Some jurisdictions favour administrative sanctions for legal entities while others threaten prosecution before offering a deferral agreement to encourage voluntary disclosure and self-remediation. Yet, all of these approaches appear fraught with difficulties when the public object (or politicians believe they will object) to companies getting a free pass out of the criminal justice system simply by dismissing a few employees, remedying some internal problems, paying a fine and moving on — merely the price of doing business!

Emergence of a white-collar crime industry

Up until the 1990s, the enforcement of corporate white-collar crime was patchy at best, idiosyncratic at worst. The Organisation for Economic Cooperation & Development (OECD) persuaded member states to implement the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention). The United States created what became widely known as “FCPA Inc.”, based on a relatively unknown law from the 1970s, the Foreign Corrupt Practices Act 1977. An entire industry subsequently flourished: aggressive investigators and prosecutors seeking enormous fines and penalties; a compliance industry that was re-born; and a legal system (in the US) that appeared to rubber-stamp results. Revenue from eye-watering fines rolled into the US Treasury, often from non-US companies caught up in bribery or corruption cases that, in the words of one US President, “took us all for a ride”.

Gradually, other countries took up the gauntlet after years of neglect, and the general approach that “what went on overseas, stayed overseas” was no longer tolerated. The old excuses that our businesses succeeded by securing valuable contracts, and “what was good for business was good for everyone”, was no longer accepted. Through the pioneering work of the OECD and other international bodies, bribery and corruption are now almost universally regarded as a cancer to all in society and must be stamped out. Laws were created or updated, offences were improved, penalties substantially increased and government talk was tough. But the stamping out is still proving difficult and resourcing regulators to investigate and prosecute complex cross-border commercial crime, when political pressures play a role (although the OECD Convention says they should not), means results remain patchy at best. Whatever certain countries think is the value or desirability of unilateral action, the value of international cooperation in tackling white-collar crime cannot be overlooked or doubted.

To disclose or not to disclose?

In common law countries, the criminal law requires proof of an offence “beyond reasonable doubt”, or, as the civil law might say, with a judge or magistrate being “firmly convinced” of the guilt of an accused. And when faced with a criminal prosecution, an accused has a binary choice: plead not guilty and fight the offence or plead guilty and present whatever facts exist that may mitigate the judicially imposed sentence.

For companies, the risk of a criminal conviction and large — sometimes crippling — fines can create real issues that may result in a company collapsing. Around the world, following the lead of the United States, non-trial resolutions involving agreements that defer prosecution in exchange for good behaviour have become increasingly popular. The OECD updated the OECD Anti-Bribery Convention with its 2021 Recommendations encouraging Member States to consider, and where possible adopt, non-trial resolution structures within their jurisdictions. Countries as diverse as the United Kingdom, France, Singapore, Canada and Japan have introduced such mechanisms, or variations of them, with significant results (particularly voluntary settlements) emerging in at least the United Kingdom and France and, most recently, Singapore. Many other countries have not introduced such laws and, in some cases (Australia being one example), appear reluctant to move away from the traditional criminal law approaches. However, traditional criminal law has not proved to be a happy hunting ground for investigators and prosecutors charged with tackling corporate crime. The role of non-trial resolution laws remains one of the most interesting developments and their continuing push in many countries is a force with considerable social and in some quarters, political, support.

Artificial intelligence

The legal system is no different to the rest of society: all of us are coming to terms with the role generative artificial intelligence (AI) can play in society. For commercial crime players, whether as a defence or prosecution lawyer, an accused, or a judicial officer (with or without a jury), the use of AI has great potential, yet with hidden traps for the unwary. Issues of confidence and legal professional privilege, if applying in your jurisdiction, must be properly protected. Open AI or private proprietary models offer different benefits to different people. Courts are increasingly concerned with false submissions or evidence that has been artificially created without reference to the facts or the correct law which, if serious enough, may trigger professional and ethical misconduct questions for lawyers. When the criminal law is invoked, prosecutors should, and courts inevitably will, take a firm view on the reliability and admissibility of AI-generated evidence.

To blow or not to blow that whistle?

An informed disclosure of corporate misconduct is invaluable not only to companies seeking to understand and remediate problems, but also to investigators and prosecutors. Yet, in blowing a whistle on such misconduct, how are we treating the whistleblower? Outside of the United States, the assessment is, regrettably, pessimistic and unflattering. While all governments and companies loudly proclaim the importance of transparency and accountability, they seem quite happy to shoot a messenger rather than respond to the message (of misconduct). From the Unaoil company/Ashani family who roundly denounced “Figaro”, the whistleblower who exposed their corporate misconduct on behalf of numerous Western companies seeking largesse in the Middle East, to the former CFO of a subsidiary of the Reserve Bank of Australia, who was made redundant after challenging uncomfortable truths surrounding the Securency banknote printing corruption scandal, whistleblowers are invariably treated appallingly. They commonly suffer discrimination and experience retaliation for daring to put their head above the parapet, with many left unable to secure employment for many years after. This reflects poorly on all of us, particularly in countries where, for whatever historical or cultural reasons, “telling tales” to government agencies was, and still appears to be, discouraged. The stronger legal protections afforded to both public and private sector whistleblowers are, the stronger a country will be in its own sense of integrity.

A wish list for white-collar crime reform

As all authors have noted in their excellent texts, reforms to tackle white-collar crime and corporate misconduct remain an ongoing challenge.

For 2026, my wish list is:

• the creation of a properly resourced and funded unified domestic agency in Australia, and perhaps many other countries, to tackle serious cross-border white-collar crime;
• the introduction of non-trial resolution schemes to provide companies with greater certainty when voluntarily reporting misconduct, thereby encouraging public disclosures and remediation efforts;
• real and meaningful protections for whistleblowers, with a resourced and empowered agency to protect and advance their interests, with realistic compensation for losses incurred because of a disclosure (call it a bounty or not);
• an informed and better understanding of where AI can help in the assessment, investigation and ultimately, the prosecution, of white-collar crime offences; and
• ongoing international cooperation in tackling the scourge of bribery and corruption and all the associated offences that we collectively call “white-collar crime”.

Lastly, a very big thank you to an amazing group of contributors from across the globe, whose experience in putting this text together, as a snapshot of white-collar crime across the globe, highlights the importance of this topic to lawyers, to corporate executives, to government regulators and policymakers.