Conducting cross-border investigations is no simple endeavor. Add the complexities of legal and cultural differences, and you have arguably one of the biggest challenges facing global corporations today. There are obstacles at every step of a cross-border investigation, including initially receiving a claim or allegation; complying with foreign data privacy laws; using the appropriate staff and resources; respecting diverse employee rights; and remediating across borders. Understanding where the pitfalls are along the way and how to navigate them can help you avoid critical missteps.
This report Cross-border investigations: Are you prepared for the challenge? provides an in-depth look at the challenges associated with conducting cross-border investigations based on the experience of investigations professionals working around the world and insights from sixty global executives who are responsible for managing their organization’s cross-border investigations.
Ninety-five percent of the executives expect that their needs for cross-border investigations will increase or at least to stay the same over the next year. Add to this the increase in global regulations, laws, and enforcement actions, companies with well designed cross-border investigation protocols will be positioned for more positive outcomes than those that are not prepared.
The following highlights a few of the critical points made in this publication.
1. Triggering a cross-border investigation
- Proper translation – Translations require the understanding of local sayings, common euphemisms and double meanings.
- Proper notification – Data privacy concerns might require notification to subject or work council. Confidentiality laws may limit to whom allegations are disclosed.
2. Triage and protocols
- Respond in a planned and consistent manner to provide credibility to the process. More than half of the executives said their company has limited or no protocols.
- Align protocols with company values, standards, and principals and take into account the region and country specific requirements, customs and practices.
3. Developing an investigation plan
- A thorough and well-designed plan will help to stay focused, measure progress and strategically incorporate steps. It will also help ensure jurisdictional differences are taken into account when considering the information to be collected and the individuals to be interviewed.
4. Forming an investigation team
- Ensure the investigation team is experienced in investigation strategy/tactics, international law, language, and customs and has received training. Only 35% of respondents conducted training within the last year.
5. Assessing special legal or cultural considerations
- Local law may limit or even prohibit certain investigations. Consideration should be given to possible violations of local laws that do not align with the headquarter country laws.
6. Conducting the investigation
- The manner in which investigative procedures are implemented, and the legal framework in which they are governed can differ dramatically from country to country. Key differences include data privacy laws and regulations, interviewing employees and reporting findings.
7. The data privacy challenge
- Foreign data privacy laws address restrictions on the kinds of data that can be collected and transferred out of the jurisdiction. Failure to comply can be costly and lead to added expense, sanctions and possible prosecution.
- Interviewing employees located in a foreign country can present unique legal and cultural challenges. Interviewing styles may need to be softened to be effective. Local language skills should be used to catch differences in regional dialect and allow for accurate translation. Even a slight variation in translation could result in significant misinterpretation of the reported facts.
9. Reporting findings
- Careful attention to the form and content of a report is required. Certain countries may compel a release of the report to subjects, which can lead to privacy or defamation claims. Companies may want to consider establishing proper data export channels proactively to avoid difficult situations.
10. Remediation across borders
- Upon completion, consideration should be given to correcting books and records, fixing control weaknesses and disciplining employees. Remediation may be limited in jurisdictions with different legal and labor protections. In certain complex multicultural matters, remediation of controls can take a long time, even years, and may be necessary to satisfy a regulator.
For more information, download the full report below.