MUTUAL LEGAL ASSISTANCE
IN ASIA AND THE PACIFIC:
EXPERIENCES IN 31 JURISDICTIONSClaire Leger
Anti-Corruption Analyst
OECD Anti-Corruption Division
27 November 2018, Da Nang, Viet Nam
The views expressed in this presentation do not necessarily represent those of the OECD
Member countries or States Parties to the OECD Anti-Bribery Convention.

Outline1. Introduction
2. Common Challenges to Effective
MLA in Corruption Cases
3. Best Practices for MLA inCorruption Cases
4. Practical Tools for Facilitating
Effective MLA
5. Conclusion and Recommendations- 152 -1. Introduction• OECD Anticorruption Initiative for AsiaPacific• ADB-OECD (2017), Mutual Legal Assistancein Asia and the Pacific: Experiences in 31
Jurisdictions• 2010–2015 time period• Focuses on the practical challenges
jurisdictions in the Asia-Pacific region facein relation to requests for MLA, particularly
in corruption cases“Corruption”, UNCAC:(i) bribery of national or foreign public
officials (arts. 15 & 16),(ii) embezzlement/misappropriation ofproperty by a public official (art. 17),(iii) trading in influence (art. 18),(iv) abuse of functions (art. 19),(v) illicit enrichment (art. 20),(vi) private sector bribery (art. 21), and(vii) private sector embezzlement (art. 22).
- 153 -2. Common Challenges toEffective MLA in Corruption Cases
A. Lack of an effective legal basis for cooperation
B. Differences in legal and procedural
frameworks
C. Language barriers
D. Delay, no response at all, or insufficient
response
E. Resource issues
F. “Traditional” grounds for refusing MLA

A. Lack of an effective legal basis forcooperation• An obstacle for 5 members of the Initiativein relation to both outgoing and incoming
requests for MLA (Japan; Malaysia;Nepal; Sri Lanka; Vietnam)• Multilateral treaties• Bilateral treaties• Domestic law• Reciprocity- 154 -

B. Differences in legal and procedural
frameworks• Challenge in obtaining MLA for 9 members: Australia;
Bhutan; Cook Islands; Indonesia; Korea; Macao,China; Singapore; Sri Lanka; Vietnam.
• In preparing outgoing requests for Macao and China.
• Legal misunderstandings can arise in a variety ofareas:– The legal basis for providing MLA.
– The grounds upon which MLA can or must be refused.
– Legal requirements for obtaining certain types ofassistance.
– Procedural requirements for obtaining assistance.
– The approaches of common law versus civil law
jurisdictions.

C. Language barriers• 10 of the 17 members: Australia; India;
Indonesia; Japan; Korea; Macao, China;
Malaysia; Singapore; Sri Lanka; Vietnam.
• Most members of the Initiative draft
outgoing MLA requests in English (Table2)- 155 -Drafting languages used for MLA requests in the Asia-Pacificregion

D. Delay, no response at all, orinsufficient response• 10 of the 17 members: Australia; Bhutan; CookIslands; Hong Kong, China; India; Indonesia;
Japan; Korea; Sri Lanka; Vietnam.
• Delay can be a function of any number of factors—
a lack of resources in the responding state, a lackof cooperation among the responding
jurisdiction’s agencies, the nature or amount ofevidence sought, or the procedural steps required
before the request can be carried out (Table 3).
• No response• Incomplete or insufficient responses- 156 -

Timeframe for responses to MLA requests in six members ofthe Asia-Pacific Initiative

E. Resource issues• 7 of the 17 Initiative members• Requests for MLA have increased in recentyears without a commensurate increase inresources (Hong Kong, China, and Australia)• Resource and technological needs (Australia)• Building the infrastructure to support MLA(Nepal)• Personnel: number and capacity (training ofstaff) (Australia; Bangladesh; Bhutan; CookIslands; Sri Lanka; Vietnam)- 157 -F. “Traditional” grounds for refusing
MLA
1. Evidentiary and informational issues
2. Dual criminality
3. Other grounds for refusal

3. Best Practices for MLA inCorruption Cases
A. Building networks and relationships
B. Preparing a strong request for assistanceC. Consultations in relation to MLA requests
D. Transmission and prioritisation
E. Monitoring requests- 158 -

A. Building networks and relationships• Relation over time
• Trust• Regular bilateral meetings• Law enforcement official meetings

B. Preparing a strong request forassistance
To be successful, a request for MLA must beaccompanied by supporting information thatprovides executing authorities with (i) anadequate legal basis to undertake the requested
action and (ii) necessary facts and other details
for doing so.
1. Training for individuals preparing requests
2. Guidance for preparation of requests- 159 -C. Consultations in relation to MLA
requests• Article 48 of UNCAC• Law enforcement officials have importantroles to play at each stage of the process:– pre-request stage– preliminary exchanges of information to support
more formal MLA requests where possible inaccordance with legal framework– alert their counterparts abroad that a request isunderway– consultations with the other jurisdiction following
the submission of a request if it is not clear

D. Transmission and prioritisation• Several government bodies may be involved inrequesting or executing a request: central
authorities, judicial authorities, investigators,
prosecutors, and counterparts abroad.
• Clear procedures are essential to ensuring thatrequests are appropriately transmitted andprioritized.
• Role of central (and other receiving authorities)
and law enforcement authorities in reviewing andprioritising incoming requests.

- 160 -

E. Monitoring requests• Modern technology permits the use ofelectronic platforms for managing
incoming and outgoing MLA requests.
• In some jurisdictions, case management
occurs primarily via in-person contacts.

4. Practical Tools for Facilitating
Effective MLA
Where possible in accordance with the law:
A. Direct law enforcement cooperation
B. Spontaneous exchanges of information
C. Using international networks to facilitate
assistance- 161 -A. Direct law enforcement cooperation
Formal MLA request and obtaining a response canbe a time-consuming, bureaucratic process.
 Informal cooperation mechanisms regarding noncoercive MLA can lead to valuable intelligence tofurther an investigation.
 Examples, where possible in accordance with thelaw:– Legal advice about the process and procedures forobtaining MLA– Preliminary information about a case
– Company records– General information about persons or companies– Preservation of documents– Information needed to facilitate a witness interview– Information about the ownership of property– Exchanges of information between FIU– Exchanges of investigative findings– Identification or seizure of bank accounts– Assistance locating a witness or suspect throughintelligence means– Assistance with cross-border police investigations
or operations– Interviews with witnesses conducted on avoluntary basis– Information about the travel plans of an accused
person– Recording of a witness statement- 162 -• Law enforcement agencies that engage insuch direct cooperation:– Investigative units of anti-corruption
authorities– FIU (See table 4)– Police forces– Tax authorities– Prosecution authorities- 163 -• Members of the initiative do not regularly
use direct law enforcement cooperation.
• Direct cooperation to obtain admissible
evidence is not allowed under the law insome jurisdictions (Australia).
• In other jurisdictions, information
obtained through direct law enforcement
cooperation is not admissible in court
absent a formal request (5 members).

B. Spontaneous exchanges ofinformation• A growing number of jurisdictions are
beginning to recognise the importance ofsharing information that might be usefulto another jurisdiction in an investigationor prosecution, even absent a formalrequest.
• However, this can only be done within ajurisdiction’s legal framework.
• UNCAC, article 46- 164 -• Law enforcement authorities are critical tosuch spontaneous exchanges of information• In some jurisdictions the central authority
does not normally exchange spontaneous
information with another jurisdiction or isexpressely prohibited from spontaneously
providing information to anotherjurisdiction.
• Some Initiative members have never received
or provided spontaneous information about acorruption offence.

C. Using international networks tofacilitate assistance
1. Periodic meetings with other jurisdictions
2. Involvement in international or regional
networks and organisations
3. Liaison officers stationed abroad- 165 -Rule of law issues• Informal and spontaneous MLA must only
be provided in accordance with ajurisdiction’s legal framework:– Preserve continuity (chain) of evidence– Due process guarantees

5. Conclusion & Recommendations
1. Recommendations at the individual law
enforcement level
2. Recommendations at the agency andnational level
3. Recommendations at the internationallevel- 166 -

claire.leger@oecd.org

For more information:www.oecd.org/bribery- 167 -