In recent years, government authorities have ever more rigorously pursued corruption. The number and magnitude of recent corruption investigations, particularly in Latin America, have raised questions about the implications for those doing business with entities ensnared in these investigations. The existence of a government investigation should not automatically halt a transaction. History shows that transactions can be executed successfully if the proper steps are taken to identify the risks, manage the impact of the investigation, and craft an effective mitigation plan to isolate the transaction from any prior misconduct. However, if the proper steps are not taken and the process is mismanaged, it can prove fatal to the transaction. Although each investigation is unique, the risks commonly associated with corruption investigations can be grouped into a few categories and each can be managed through a mitigation program. Companies considering a transaction with a subject of a corruption investigation, as well as subjects of such investigations, should consider how these risks apply to the proposed transaction. The risks include: (1) adverse effects on ongoing business and financial challenges; (2) investigations or actions by authorities of other jurisdictions, including additional inquiries into currently uninvolved business divisions and transaction parties; and (3) potential prosecution, penalties and adverse consequences for transaction parties and on certain of their assets. Unless the transaction can wait until the investigation is resolved, parties must address these risks regardless of whether the allegations are ultimately proven to be true or false. The fact that authorities have commenced an investigation means that the allegations must be addressed. The appropriate approach to each risk is driven by the particular facts.
Corporate counsel must also anticipate often unforeseen challenges of corruption investigations. One challenge relates to document management. Legal counsel should take steps to ensure that employees understand that all documents and records related to the allegations must be preserved to avoid liability under the doctrine of spoliation and under the Sarbanes Oxley "Anti-Shredding" provision. Relations with individual employees who are potential and actual witnesses in the investigation is a separate but equally important challenge. Corporate counsel must inform each individual that corporate counsel represents the company and that the individual must consider separate legal counsel. In light of the US Department of Justice's ("DOJ") recent focus in the so-called "Yates Memo" on individual accountability (see infra at IV(c)), managing the company's obligations to and relationships with individual employees and the interests of authorities investigating allegations is increasingly important.
Adverse Effects on Business and Financial Difficulties Experienced by the Company Under Investigation
A corruption investigation usually adversely impacts ongoing business at the target, including disruption to daily operations. Throughout the investigation, company leadership and relevant employees have to devote significant attention to responding to investigative inquiries and developing the company's defense, which diverts resources and detracts attention from day-to-day management of the business. Investigations that involve authorities from multiple countries often can stretch a company's management and resources, because management must deal with varying demands and interests of multiple jurisdictions. In recent years, investigations have increasingly involved authorities from several countries. For example, the investigation into corruption at Alstom S.A., a French power and transportation company, which concluded in 2014, involved investigations by US, Swiss, and U.K. authorities.5 In recent anti-corruption prosecutions, notably the proceeding against Rolls Royce, VimpelCom and Odebrecht S.A., the enforcement authorities from several countries agreed on coordinated proceedings to resolve the investigation. The risks for a target may be exacerbated if the different jurisdictions do not coordinate their investigations, as is currently the case for Odebrecht.
A corruption investigation also impacts the morale of employees. Employees at all levels may become uncertain about their own futures at the company, as well as the future of the company itself, particularly where the investigation is public and there is intense media scrutiny of the company. Moreover, investigations—which inquire into employees' work, emails and conduct, and often involve interviews of employees—have the potential to disclose not only corrupt conduct, but also non-corrupt but nevertheless problematic employee conduct. Thus, even employees who were not involved in corrupt conduct may be concerned and distracted by the investigation, particularly in jurisdictions where employees expect (and the law may provide) a level of confidentiality in their work communications. Thus, the data collection and interview process in and of itself can give rise to anxiety among the employees. As the findings are reported, employees may become increasingly uncertain about possible employment termination and even personal liability. Finally, corruption investigations can lead to Board level and senior management turnover, which can be especially disruptive to a company's operations.
A corruption investigation also can disrupt business relationships and future opportunities. Because, under the laws of many jurisdictions, permits, licenses, concessions, and contracts obtained through fraud or corruption are either void per se or voidable, the value of any company is at risk if voided permits, concessions, licenses, or contracts are key to its business. In addition, payment and other performance under contractual arrangements implicated in the investigation may be disrupted. Counterparties also may be reluctant to enter into new business arrangements pending further clarity regarding the implications of the investigation. Financial institutions may curtail, suspend or retract financing support. Finally, the corruption investigation's impact on the company's business is further complicated if investigating authorities lack experience calculating fines in corruption investigations. Challenging business prospects and the threat of fines due to the investigation can create liquidity constraints and even lead companies to become unable to pay debts as they are due, obtain new credit when needed, or assure shareholders of the health of the business. In some cases, companies may file for bankruptcy. In 2016, several prominent Brazilian engineering and construction companies involved in the Lava Jato corruption scandal,6 such as OAS S.A. and Galvão Engenharia S.A., filed for bankruptcy due to a ban imposed by Petrobras on such companies from bidding on new projects.7
Additional Investigations by Authorities and Changing Scope of Investigations
Usually corruption investigations are drawn-out and evolve over time. Most investigations take at least a year to conclude and can continue for three to five years, or longer. Although typically the most relevant information is revealed relatively early in the process, new significant information may come to light over the entire course of the investigation. This can impact proposed transactions in several ways. First, new entities and individuals may become a target of the investigation. Being a "target of an investigation" means that authorities believe a business or individual should be charged with criminal wrongdoing.8 For example, with respect to the ongoing Lava Jato corruption investigation,9 Odebrecht S.A., a major Brazilian engineering and construction company that often conducted business with Petrobras, and its CEO, Marcelo Odebrecht, were initially the subject of the investigation by Brazilian and US authorities. Marcelo Odebrecht eventually became a target of the investigation, and in June 2015, Brazilian authorities brought criminal charges against him alleging he paid bribes to politicians.10
Additionally, any company that has entered into a transaction with a party connected to a corruption investigation, or is planning to enter into a transaction with a party connected to a corruption investigation, should consider the possibility of itself being implicated in the corruption investigation. Even if the transaction party has no connection to the corruption, authorities may interpret any new transaction as aiding or furthering continuing wrongdoing by the original target of the investigation. In such a case, authorities may choose to investigate the transaction or bring charges of aiding and abetting or furthering the corruption. In the United States, a person charged with aiding and abetting, or furthering corruption faces the same penalties as someone who had engaged in corruption himself. Other criminal charges that US authorities bring against parties include fraud and money laundering claims, and charges under the Racketeer Influenced and Corrupt Organizations ("RICO") Act. Although a conviction requires proof of intent, a company (or its officers) cannot escape liability simply because it (they) lacked subjective intent to violate laws. Intent is determined by the objective facts and circumstances surrounding the events. Therefore, a person can be found to have intended to aid and abet corruption if facts developed at trial establish such intent.
Finally, additional investigations may arise. Lava Jato may be the archetypal example. What began as a Brazilian investigation into a kickback scheme involving certain Petrobras employees has expanded internationally with reports of authorities from the United States, Switzerland and more than a dozen other countries investigating companies and individuals connected to the alleged bribery at Petrobras and beyond.11 For example, the Odebrecht Plea Agreement in the US Federal Court details bribery by Odebrecht in eleven countries in addition to Brazil, extending well beyond Odebrecht's relationship with Petrobras.12 While not every corruption investigation will become as sweeping as the Lava Jato investigation, companies with international operations or relationships may be candidates for multi-jurisdictional corruption investigations.
Potential Prosecution and Penalties
At the outset of any investigation, it is too early to determine potential penalties or liabilities for the targets or other "connected" parties. However, companies may face large fines depending on the magnitude of the corruption, the culpability of the company, and the jurisdiction. In the past, US prosecuting authorities generally have attempted to impose penalties in a manner that allows companies to avoid bankruptcy or significant reorganization. However, prosecutors may have difficulty calculating the penalty that has such an impact.
The penalties that can arise from corruption convictions include fines, jail time, the invalidation of essential permits, licenses, or agreements entered into through corruption, and even the forced dissolution of the Company.13 If found guilty of violating the US anti-bribery law that prohibits bribing foreign officials to obtain business, the Foreign Corrupt Practices Act ("FCPA"), companies face penalties, including: (i) a US $2 million fine per violation14; (ii) a $250,000 fine and five years of imprisonment for each individual officer or employee implicated; and (iii) alternative fines of twice the gross gain or loss in the transaction.15 In its 2014 Plea Agreement with the DOJ, Alstom pleaded guilty and paid $772 million to resolve charges of a widespread scheme involving tens of millions of dollars of bribes paid in various countries, including Indonesia, Saudi Arabia, Egypt, the Bahamas, and Taiwan.16 Authorities may also impose an independent monitor upon a company, which would subject it to further inquiry, not to mention administrative burden and expense, and burden to morale, something the DOJ and US Securities and Exchange Commission ("SEC") required as part of a three-year deferred prosecution agreement and a settlement agreement, respectively, to resolve charges of books and records violations of the FCPA by Siemens in 2008.17 Non-US authorities may also impose their own penalties in conjunction with US authorities. In 2008, Siemens, in addition to pleading guilty to FCPA violations, agreed to pay $450 million in criminal fines to resolve charges with the DOJ, $350 million in disgorgement of ill-gotten gains to resolve charges with the SEC, and penalties of €395 million ($560 million) to German authorities.18 In an interesting development, the Odebrecht penalty in connection with a resolution in the US, Switzerland and Brazil was calculated on the basis of the US Sentencing Guidelines.19 The use of the US Sentencing Guidelines to calculate the penalties in non-US proceedings is a hopeful sign of increased coordination among jurisdictions as to penalties.
Ways to Mitigate Risk
Given these and other related risks, the prospect of executing a transaction in the midst of a corruption investigation can be daunting. However, often these risks can be managed through a well-planned mitigation program. The common goals of a mitigation program include: (1) obtaining as much information as possible about the corruption allegations and investigation, particularly whether the corruption is ongoing; (2) implementing or revising the compliance program at the target (and, potentially, their contractors) so that it is in line with international best practices; (3) assessing the impact on business and isolating the transaction from liabilities arising from the investigation; and (4) cooperating and maintaining a dialogue with authorities to avoid the appearance of aiding an ongoing corruption scandal. While any mitigation program should be tailored to the needs of each transaction, the methods discussed below are designed to avoid pitfalls experienced by parties in past transactions, and to help parties move forward with transactions involving parties ensnared in corruption investigations.
Investigation Into the Allegations of Corruption
The principal goals of any mitigation program include determining the extent of the corruption, minimizing the impact of past or ongoing corruption on the transaction, and evaluating the potential impact of the alleged corruption on the value of the business. Such information is typically collected and identified through an independent, internal investigation. A thorough and independent investigation is critical to sound and predictive decision-making, because government investigations are unlikely to provide much substantive insight into the alleged corruption until they are complete, often years after they began. Because transactions cannot be delayed for years, and to reduce the risk of unknown disclosures years in the future, transaction parties should use due diligence and, as necessary, independent investigations to learn as much about the corruption as possible. Therefore, parties should begin planning an independent, internal investigation as early as practicable. While targets may have the urge to withhold information from transaction parties about the allegations of corruption and delay commencement of an independent investigation, it is generally better in the long run to disclose allegations of corrupt activity and to commence addressing the resulting counterparty concerns sooner rather than later, even if the target questions the merit of the allegations.
The case of Latin Node Inc. ("Latinode"), a Florida telecommunications company, and eLandia International Inc., a Miami-based information and communications technology company, illustrates how the impact of a lack of thorough due diligence and investigation can cause a company to overpay in a transaction.20 In 2007, eLandia acquired Latinode, but discovered post-closing that from March 2004 to June 2007, Latinode made over $1 million in payments to third-party intermediaries who passed funds to Honduran officials in exchange for an essential interconnection contract with Hondutel, a state-owned telecommunications company.21 eLandia voluntarily disclosed the illicit payments to the DOJ and cooperated with the government's investigation.22 However, as the parent company, eLandia was ultimately responsible for Latinode's $2 million criminal fine.23 Of more significance than the fine, however, was Latinode's drop in value and subsequent bankruptcy proceedings. As explained earlier, contracts obtained through corruption are often void per se or voidable under applicable law and that was the case for key Latinode contracts. In its second quarter 10-Q filing, eLandia estimated that, as a result of Latinode's corruption, the $26.8 million purchase price was approximately $20.6 million in excess of the fair value of the assets acquired from Latinode.24
eLandia's reliance on Latinode's representations during the acquisition demonstrates the importance of learning in detail how the corruption was conducted and by whom. Such details include the payment mechanisms used by the company, such as payroll or invoices, as well as any other sources of information about the corruption. To do so, parties must request access to original transaction documents and informal communications like emails, as well as documents relating to ancillary transactions, such as the fake consulting agreement used by Latinode,25 and then assess the effects of the potentially corrupt transaction. This includes any related permits, licenses, and contracts that may be obtained through corrupt payments. Generally speaking, the procedure is to "follow the money." Once there is a detailed understanding of the corrupt activity and of the people involved in or knowledgeable about that activity, investigators (either with other transaction party investigators or separately) should interview as many of those people as possible. At times, employees can be reluctant to speak to investigators, but employee interviews often provide context and information that is simply unavailable in documents and records. For obvious reasons, it is typical for there to be very limited direct documentary evidence of corrupt transactions, and interview testimony is thus often crucial in understanding the transactions and events at issue.
Coordinated investigations by transaction parties may help to avoid the pitfalls experienced by eLandia. In 2007, Siemens AG, the German engineering and manufacturing conglomerate, and Nokia Corporation, the Finnish communications and information technology company, successfully closed a joint venture after several jurisdictions launched independent investigations into Siemens and some of its subsidiaries for allegations that Siemens had permitted corrupt payments to occur.26 For example, the DOJ found that Siemens used off-book accounts to make corrupt payments, entered into purported business consulting agreements with no basis, hired former Siemens employees as purported business consultants to make corrupt payments, used false invoices to justify payments to business consultants, mischaracterized corrupt payments as legitimate expenses, and limited the quality and scope of audits of payments to business consultants.27 Additionally, the DOJ found that Siemens lacked sufficient anti-corruption compliance controls and its senior management failed to take action even after they were informed of significant control weaknesses.28
To understand the extent of the corruption at Siemens, Nokia closely monitored Siemens's investigation into corruption, bribery, and internal controls29. Ultimately, Siemens pleaded guilty to a lack of sufficient anti-corruption compliance controls.30 The company was fined $450 million by the DOJ.31 As part of a settlement in a parallel SEC suit, Siemens was required to disgorge $350 million dollars in ill-gotten profits.32 On the same day, the company announced that it had entered into a second settlement with the German authorities, agreeing to pay penalties of €395 million ($560 million) in addition to the €201 million ($287 million) in penalties that it previously paid in an earlier settlement.33 In all, Siemens paid more than $1.6 billion in penalties as a result of its corrupt activities, which remains the largest amount in FCPA history to date.34 Although these penalties were unprecedented, the results of the investigation and mitigation procedures were favorable for both Siemens and Nokia. The joint venture was preserved, and Nokia eventually fully acquired Siemens's stake in 2013 without any allegation that the joint venture participated in the corrupt conduct.35
1 Danforth Newcomb is Of Counsel at Shearman & Sterling LLP. He founded the anti-corruption practice at Shearman & Sterling. He is approved by the United Nations as an expert on ethics and compliance and served as a Department of Justice and SEC-sanctioned FCPA compliance monitor. His recent FCPA engagements include: Nokia in a multi-jurisdictional anti-corruption review arising out of the Siemens AG matter, AB Volvo in DOJ and SEC proceedings arising out of the Oil-For-Food Program, ABB in SEC and DOJ cases, and various parties in SEC/DOJ investigations related to Norsk Hydro/Statoil, Titan Corporation, Daimler Chrysler AG, the Bonny Island Nigeria matter, Faro Technologies, Inc. and Oil States International, Inc. In 2016, the Global Investigation Review presented him with its Outstanding Career Award. Every year since 2011, Chambers USA has named him a Senior Statesman among the Leading FCPA Experts, and Main Justice, a leading news publication on criminal defense matters, recognized him as an FCPA Master. He is a member of the Board of Advisers to the Foreign Corrupt Practices Act Reporter and founding editor of the FCPA Digest.
2 Cynthia Urda Kassis is a senior partner in the Project, Development & Finance group at Shearman & Sterling, and is co-head of the firm's Mining & Metals group. Cynthia represents sponsors, lenders and other investors in project, corporate and acquisition financings with respect to precious, base and specialty metal and energy mineral projects around the globe, most notably in multiple countries in the US and Latin America. Cynthia acted as Trustee-at-Large of the Rocky Mountain Mineral Law Foundation ("RMMLF") from 2011–2014 and is a Member of the Steering Committee of RMMLF's 2017 Special Institute on International Mining and Oil & Gas Law, Development, and Investment conference. She is ranked as a leading project finance lawyer by Chambers Global, Chambers Latin America, Chambers USA, IFLR 1000, Legal 500, Guide to the World's Leading Lawyers in Project Finance and The International Who's Who of Project Finance Lawyers, of Banking Lawyers and of Mining Lawyers. She has also been named "Dealmaker of the Year" by The American Lawyer, "Projects/Energy Lawyer of the Year" by Chambers & Partners and "Project Finance Lawyer of the Year" by Who's Who Legal. In 2016, Cynthia was one of four female partners selected by Latinvex as a top 100 female lawyer specializing in Latin America at international law firms.
3 Manuel Orillac is a partner in the Capital Markets and Mergers & Acquisitions groups of Shearman & Sterling. He provides a wealth of relevant experience in advising issuers and underwriters on debt capital markets transactions in Latin America. Recently, Manuel led Shearman & Sterling's team on the capital markets transactions by Autoridad del Canal de Panamá, Aeropuerto Internacional de Tocumen and the Panama Canal (which won "Best Infrastructure Financing" deal of the year award in 2016) in their recent bond offerings. Manuel is cited as a leading capital markets lawyer in the most recent editions of Chambers Global, Chambers Latin America and The Legal 500.
4 Christina Lee, a former associate at Shearman & Sterling LLP, provided substantial assistance in preparing an earlier version of this article, and Melissa Godwin, a current associate at Shearman & Sterling LLP, assisted with the revisions of this paper.
5 Press Release, US Dep't of Just., Alstom Pleads Guilty and Agrees to Pay $772 Million Criminal Penalty to Resolve Foreign Bribery Charges (Dec. 22, 2014), http://www.justice.gov/opa/pr/alstom-pleads-guilty-and-agrees-pay-772-million-criminal-penalty-resolve-foreign-bribery (the "DOJ Press Release on Alstom").
6 In 2014, the media reported details of an allegedly wide-spread kickback scheme involving Petróleo Brasileiro S.A. ("Petrobras"), a semi-state-owned Brazilian energy corporation, and an investigation by Brazilian authorities into the scheme, which is known as Operação Lava Jato ("Operation Car Wash"). See, e.g., Joe Leahy & Samantha Pearson, Brazil's Petrobras: Tarred by Corruption, The Financial Times (Aug. 10, 2014), http://www.ft.com/intl/cms/s/0/6d00da0c-1c7c-11e4-98d8-00144feabdc0.html#axzz3xWZlD5S6.
7 Christina Sciaudone & Paula Sambo, OAS Files for Bankruptcy as Petrobras Probe Embroils Builder, Bloomberg (Mar. 31, 2015), http://www.bloomberg.com/news/articles/2015-03-31/oas-files-for-bankruptcy-protection-after-cut-off-by-petrobras.
8 9-11.151 – Advice of "Rights" of Grand Jury Witnesses, US Att'y Manual, http://www.justice.gov/usam/usam-9-11000-grand-jury#9-11.151.
9 In 2014, various investigations by authorities involving Petrobras were disclosed. John Aglionby, Petrobras: Timeline of a Scandal, Financial Times (Feb. 4, 2015),
10 Sergio Spagnuolo, Brazil Prosecutors Present Charges against Odebrecht CEO, Reuters (Jun. 24, 2015), http://www.reuters.com/article/us-brazil-petrobras-odebrecht-charges-idUSKCN0PY2A320150724.
11 Joe Leahy & Andres Schipani, Petrobras Prosecutors Look Overseas, Financial Times (July 22, 2015), http://www.ft.com/intl/cms/s/0/9546cfee-3003-11e5-91ac-a5e17d9b4cff.html#axzz3wXWzURB0.
12 Plea Agreement, Attachment B (Statement of Facts) at ¶¶ 20, 43, United States v. Odebrecht, S.A., Cr. No. 16-643 (RJD) (E.D.N.Y. Dec. 21, 2016), https://www.justice.gov/opa/press-release/file/919916/download (the "Odebrecht Plea Agreement").
13 In Chile, for example, Law No. 20.393, art. 8, establishes dissolution of a company as a potential outcome in extreme cases. Law No. 20.393, art. 8, Establece la Responsabilidad Penal de las personas Jurídicas en los Delitos de Lavado de Activos, Financiamiento del Terrorismo y Delitos de Cohecho que Indica, Noviembre 25, 2009, Diario Oficial D.O. (Chile).
14 All dollar figures cited in this article reference US dollars unless indicated otherwise.
15 FCPA: A Resource Guide to the US Foreign Corrupt Practices Act, US Dep't of Just. at 68 (2012), http://www.justice.gov/sites/default/files/criminal-fraud/legacy/2015/01/16/guide.pdf.
16 DOJ Press Release on Alstom.
17 Plea Agreement at ¶ 12, United States v. Siemens Aktiengesellschaft, No. 1:08-cr-00367-RJL
(D.D.C. Dec. 15, 2008); Press Release, US Sec. and Exch. Comm'n, SEC Charges Siemens AG for Engaging in Worldwide Bribery (Dec. 15, 2008), https://www.sec.gov/news/press/2008/2008-294.htm.
18 Eric Lichtblau & Carter Dougherty, Siemens to Pay $1.34 Billion in Fines, N.Y. Times (Dec. 15, 2008), http://www.nytimes.com/2008/12/16/business/worldbusiness/16siemens.html?_r=0.
19 Odebrecht Plea Agreement at ¶ 18.
20 Latin Node Inc.: Undiscovered FCPA Violations Wipe Out an Investment, Shearman & Sterling LLP at 1-2 (Apr. 15, 2009), fcpa.shearman.com/files/79b/79b7e82dce1779a68819829351cad8c7.pdf?i=cec5c58ffc6eff1a504a9286ea5f0238.
21 Press Release, US Dep't of Just., Latin Node Inc., Pleads Guilty to Foreign Corrupt Practices Act Violation and Agrees to Pay $2 Million Criminal Fine (Apr. 7, 2009), http://www.justice.gov/opa/pr/latin-node-inc-pleads-guilty-foreign-corrupt-practices-act-violation-and-agrees-pay-2-million.
23 Plea Agreement at ¶ 16, United States v. Latin Node, Inc., No. 09-CR-20239-PCH (S.D. Fla. Apr. 3, 2009).
24 eLandia Int'l Inc., Quarterly Report (Form 10-Q/A) (Aug. 10, 2008), http://www.sec.gov/Archives/edgar/data/1352819/000119312508177840/d10qa.htm.
25 Information at ¶¶ 21, 24, United States v. Latin Node, Inc., No. 09-CR-20239-PCH (S.D. Fla. Apr. 3, 2009).
26 Nokia to fully acquire Siemens' stake in Nokia Siemens Networks, Reuters (Jul. 1, 2013), http://gadgets.ndtv.com/telecom/news/nokia-to-fully-acquire-siemens-stake-in-nokia-siemens-networks-386232; Press Release, Siemens, Update on Compliance and AUB (Apr. 26, 2007), http://www.siemens.com/investor/pool/en/investor_relations/downloadcenter/2007-04-26_legalproceedings_1445772.pdf.
27 Information at ¶ 89, United States v. Siemens Aktiengesellschaft, No. 1:08-cr-00367-RJL (D.D.C. Dec. 15, 2008).
28 Id. at ¶¶ 74, 135.
29 Siemens Agrees to Largest Settlement in History of FCPA, Shearman & Sterling LLP (Dec. 2008), http://www.shearman.com/~/media/Files/NewsInsights/Publications/2008/12/Siemens-Agrees-to-Largest-Settlement-in-History-__/Files/View-Full-Tex/FileAttachment/LIT_121808.pdf.
30 Press Release, US Dep't of Just., Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act Violations and Agree to Pay $450 Million in Combined Criminal Fines (Dec. 15, 2008), https://www.justice.gov/archive/opa/pr/2008/December/08-crm-1105.html.
34 See id.; see also DOJ Press Release on Alstom.
35 Press Release, Siemens & Nokia, Nokia to fully acquire Siemens' stake in NSN (Jul. 1, 2013), http://www.siemens.com/press/en/pressrelease/?press=/en/pressrelease/2013/corporate/axx20130742.htm.
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