Spotlight On...
Contact: Phil Ostwalt Partner
Tel: +1 404-222-3327 Email:
postwalt@kpmg.com
and managing investigations for their company. Our survey respondents cited their top three challenges when conducting a cross-border investigation as privacy and information issues, lack of internal investigation resources, and cultural differences.
Preserving and collecting information
relevant to an investigation is one of the most important steps in the investigative process. Foreign data privacy laws and regulations pose some of the greatest challenges to conducting cross-border investigations because of restrictions on the kinds of data that can be collected and transferred out of the jurisdiction. Many countries have enacted laws that place a high priority on protecting personal data, including establishing a fundamental legal right on the privacy of personal data, even if such data are contained on an employer’s system or computer.
The need to conduct an investigation is not predictable. Therefore, having trained internal resources
ready to
deploy on short notice is unlikely. Cross- border investigations oftentimes require specialized staffing that necessitates proactive planning. Companies
can
address gaps in resources by developing contingency plans for investigative personnel, such as designating experienced internal people from other regions to respond if necessary, and retaining outside local investigators to be on call when a situation arises.
Finally, cultural differences also underlie cross-border investigations and can create significant problems if investigators do not understand
and respect these
differences. A colleague of mine, Shelley Hayes who leads our
Mexico practice summed it up well when she said “In cross-border investigations, it is important to understand the traditional culture that is driving how people think, act, and react, and how the person conducting the investigation is being perceived. What may be acceptable to say or do in one culture may totally offend someone from another culture.”
Q
How can these challenges be overcome?
I believe that companies are served well to develop a set of investigation protocols that essentially will serve as a game plan, and allow for consistent practices when a need occurs for an investigation. Unfortunately, many companies have not developed them. More than half of those who responded to KPMG’s survey said that their companies have limited or no protocols for cross- border investigations.
One reason for protocols is that allegations will vary in substance,
severity, and
priority. Therefore, a company should have a detailed procedure or protocol that outlines which department or individuals will bear responsibility for overseeing the investigation. A proper set of investigation protocols will also need to include not only the planned procedures, but also the channels of communications that should occur during the course of the investigation.
Q
In what ways can companies strengthen their investigative
activity?
I have noticed a decrease in organizations providing any level of training with their internal investigative resources to prepare them for the unique aspects that will be
45
present in a cross-border investigation. Our survey findings also revealed the same with thirty-five percent of respondents in KPMG’s survey saying that their companies conduct investigations training each year. This is down from nearly 80% in a prior survey, and reflective of decreased training budgets in many organizations. To be well prepared, companies
with
global operations should proactively train employees about investigation protocols in different jurisdictions so that they can respond quickly. Trying to educate local resources after an allegation has been received may lead to delays that can sidetrack an investigation.
Q
Is there anything else you would like to add?
The often overlooked aspects of an investigation are the steps that a company should take to remediate once the fact finding stage of a cross-border investigation is complete.
Companies will often need
to remediate any issues identified, which could include correcting books
and
records, fixing control weaknesses, and disciplining employees. Taking remedial action can be an important determinant by regulators, both domestic and foreign, in deciding to charge a company with a violation of a law or to reduce the size of a criminal fine or penalty that might be assessed.
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74