TACKLING MULTIJURISDICTIONAL INVESTIGATIONS: COORDINATION & PRACTICAL CHALLENGES

Sikellis: What do you consider to be the biggest challenges that need to be tackled when investigating serious suspected misconduct in a cross-border context?

Anthony: Undertaking a cross-border investigation is one of the most challenging tasks an internal investigation team will face. There are many pitfalls, including language, legal and cultural differences. Regarding access to, and format of, information, it is likely the information, be it paper documentation, electronic accounting data, emails or witness statements or interviews, will be in a foreign language, requiring the need for accurate translation or local language skills when conducting the investigation. Also, companies will need to consider that in different jurisdictions there will be a higher volume of paper records or the use of instant messaging, such as WhatsApp instead of emails. It is likely that any allegations that are received will also include local expressions or euphemisms. It is imperative that any allegation of serious misconduct is accurately translated and ‘nuanced’ at the outset; get this wrong and your investigation will be flawed from the start. There will also be local legal differences. A key challenge for many companies is understanding the legal framework for investigating in a specific country, including an assessment of what constitutes breaches or offences, access and transfer of data, the interviewing of witnesses and notification to local authorities. Local cultural differences are an additional challenge. Understanding the cultural differences plays a key role when conducting cross-border investigations.

Ross: A key challenge is ensuring that all members of the investigating team, lawyers, forensic experts, local agents and so on, understand the difference between information and evidence in the context of the relevant jurisdictions. It can be all too easy for an investigation to be premised on what are thought to be pieces of evidence when in fact they are not, and this can be the weak link in a cross-border case. A further challenge is other cultural differences and systems if not anticipated or understood, which can stop an investigation in its tracks.

Jul-Sep 2020 Issue

Novartis

FTI Consulting

Withers