Special Considerations In Multi-Jurisdictional Investigations - Focus On Investigations: Part 7

In our Focus on Investigations series our Corporate Crime, Compliance and Investigations team looks at some of the key issues that investigators should take care to consider when undertaking internal investigations.
Canada Criminal Law
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In our Focus on Investigations series our Corporate Crime, Compliance and Investigations team looks at some of the key issues that investigators should take care to consider when undertaking internal investigations. In Part 7 of the series we explore some of the key issues that businesses should be aware of in the context of multi-jurisdictional investigations.

Multi-jurisdictional investigations present novel issues for businesses that operate in one or more jurisdictions. A plan or policy developed to ‎address an internal investigation in a single jurisdiction is often not sufficient to ‎address the issues unique to a multi-jurisdictional investigation. In order to dedicate the necessary resources and carefully ‎manage the investigation, businesses should be aware of the distinct issues that may come with a multi-jurisdictional ‎investigation. Absent a careful review, businesses may find that they have ‎undermined the integrity of their investigations and exposed themselves to further risks.‎

Consider local laws relevant to the investigation

One of the key challenges to preparing and conducting a multi-jurisdictional investigation is navigating the application of different legal regimes. To create a credible strategy for ‎conducting a multi-jurisdictional investigation, businesses should ‎review the applicable laws of each jurisdiction and identify any potential conflicts ‎with the laws. The following is a list of common areas of conflicting laws that businesses ought to consider:.

Permissibility of private investigations

Businesses should carefully review the applicable laws on conducting private ‎investigations. In some jurisdictions, it is prohibited to conduct a private investigation, ‎while in other jurisdictions, prior consent from local authorities may be required. ‎Local authorities may also require a degree of oversight or access to the ‎investigation. ‎

Interviews with employees

The application of labour laws may drasticly differ between jurisdictions. For example, it is not permissible for employers to ‎conduct interviews of employees for the purpose of an internal investigation in certain jurisdictions. Where such interviews ‎are permissible, there are differences on whether notice must be provided to employees ‎and the duration of the notice period. There also exist considerable differences on ‎whether an employee is entitled to legal representation during an internal ‎investigation.‎

Preserving privilege

When preparing for a multi-jurisdictional investigation, businesses will need to ‎consider the local laws on privilege. Maintaining and preserving privilege differs in ‎each jurisdiction. For instance, in some jurisdictions, the law does not extend ‎solicitor-client privilege to internal and confidential communications made with internal legal counsel. To avoid the unintended loss or waiver of privilege, it is crucial for ‎businesses to understand the applicable laws governing privilege.‎ For a comparative analysis of legal privilege in different jurisdictions please see our global guide.

Data preservation and collection

It is equally crucial for businesses conducting a multi-jurisdictional investigation to ‎ensure their compliance with local laws related to collection and preservation of ‎data. To that extent, it will be necessary to consider how data will be collected, ‎transferred, and preserved. Depending on the type of data being accessed, some ‎jurisdictions may require the business to provide notice to local authorities or their ‎employees. For a comparative analysis of data protection laws around the world please see our global guide. ‎

Disclosure and secrecy obligations ‎

Businesses should also assess their reporting and disclosure obligations in each ‎jurisdiction. Businesses may be obligated to disclose certain information that can ‎have a negative impact on the business in another jurisdiction. For example, some ‎jurisdictions may require businesses to disclose and self-report accidental ‎contraventions of regulations. These disclosure obligations may contravene the ‎business's obligation to keep confidential or secret certain facts pertaining to an ‎ongoing investigation. In some jurisdictions, the involvement of a regulator may ‎impose secrecy obligations that prohibit disclosure. As such, businesses may ‎be placed in a difficult situation to address competing legal obligations. ‎

The above list is not exclusive. There is no perfect or "one-size fits all" approach to conducting a ‎multi-jurisdictional investigation. Inevitably, businesses will encounter conflicting legal regimes and must make certain compromises. An effective plan will review the above mentioned ‎issues as a preliminary step towards developing and implementing a multi-jurisdictional investigation. ‎

Create a diverse and international team

The management of a multi-jurisdictional investigation also requires special ‎considerations. Chief among those considerations is the development of an ‎international investigation team, and co-operation with local counsel. Working ‎with an international team is necessary for conducting an effective and credible ‎internal investigation. First, having a diverse and ‎international team can assist the business with navigating any language barriers or ‎cultural differences. Second, the assistance of local counsel will assist the business ‎in considering the application of local laws. ‎Third, an international team can assist the business in adopting best practices when dealing with local regulators or authorities.

Multi-jurisdictional investigations involve unique challenges. Central to the success of these investigations is early identification of key legal issues in the local jurisdictions and engagement of local teams to manage these challenges. Communication, coordination, and collaboration are important aspects of a successful multi-jurisdictional investigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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