With many internal investigations today involving multiple markets, it is crucial for companies to build cross-border investigation teams that can efficiently and effectively address a multitude of issues. The ideal structure for an investigation team depends on the nature of the issues and the markets that are involved − a team that is well suited to perform an investigation of issues that are confined to conduct in the United States, for example, may not be appropriate for investigating issues that stretch across several markets.
Building a cross-border investigation team
For cross-border investigations, the investigation team should be:
- Aligned with a global team, and able to identify, assess and triage issues that may not only raise concerns under local law but also other countries' enforcement regimes and disclosure obligations
- Composed of experienced investigation attorneys (not just foreign attorneys who specialize in other areas of law but who have investigations experience) who are located in the countries or regions involved and familiar with the local culture and ways of working in the market
- Competent to advise on local legal issues – including employment, privilege, data transfer and privacy concerns
- Comprised of members who are available on the ground and able to facilitate the collection and review of documents, participate in witness interviews and respond to emergencies
- Experienced in working with the relevant government enforcement authorities and other third parties and
- Fluent in the local language.
Benefits to be obtained from optimal construction
A cross-border investigation team that is structured to address the above considerations will support a more effective review, including by providing efficiencies and cost savings in critical areas, such as:
- Collection and review: Mitigating the risk of violating local laws and regulations during the collection and review of materials, which could result in private rights of action, fines, injunctive relief and/or criminal liability
- Witness interviews: Reducing the risk of violating local laws and regulations while conducting witness interviews, which will help forestall complaints to labor tribunals
- Discrete local legal issues: Ensuring that key issues are identified, including possible discrete violations of local law that a foreign team of attorneys may not be able to identify
- Remediation and/or disciplinary actions: Limiting the risk of contravening local laws and regulations with regard to disciplinary action taken as a result of an investigation team's recommendations
- Government enforcement actions: Obtaining access to local intelligence regarding the status of a government enforcement action and/or current strategy and
- Public relations, local press and social media: Managing and responding to public relations issues in the local market in real-time.
In sum, companies must build cross-border investigation teams that are able to respond to a wide array of issues. An emphasis should be put on flexibility, which can be achieved through the construction of a team that is geographically, substantively and culturally diverse. This will ensure the investigation team is well positioned to effectively operate during critical reviews, including those subject to scrutiny by government regulators and enforcement agencies.
For more information about investigations obligations and issues in this area, please contact the authors.