At last month’s C5 International Anti-Corruption Conference, Lorynn Demetriades, Senior Managing Director at Ankura, and Dylan Moses, Partner at K&L Gates gave their perspectives on the latest challenges in cross-border investigations in a panel moderated by Pallav Shukla, Partner at Trilegal. In case you missed it, below is a quick summary of the key challenges:
1. The tension between evolving tech-enabled communications and data protection/transfer laws
Ephemeral messaging apps and online collaboration tools that became essential during the pandemic are here to stay. While enforcement bodies like the Department of Justice (DOJ) and Serious Fraud Office (SFO) expect companies to make their best efforts to obtain the full scope of relevant communications, data protection, and data transfer laws present challenges to investigations teams. Even if you successfully navigate the legal hurdles, obtaining and analyzing the data is technically complex. Forensic tools are persistently on the backfoot with evolving mobile device technology, and the volume of potentially relevant data means traditional investigative tools are quickly becoming outdated. Proper scoping, upfront legal advice, and cutting-edge investigative tech are critical to the success of your investigation.
2. Facing off with multiple law enforcement and regulatory authorities due to increased collaboration
Throughout the conference, the emphasis on collaboration between enforcement bodies could not be more evident, including panel discussions among the U.S., UK, and French authorities. Recent cross-border investigations and settlements include collaboration among, for example, the U.S., UK, France, Switzerland, Sweden, South Africa, and Brazil. In addition to the willingness to work together, governments are making it easier to share information through legislation such as the recent Cloud Act in the U.S. and Crime (Overseas Production Orders) Act 2019 (UK). Anticipating and preparing for multiple enforcement bodies is now essential in cross-border investigations.
3. Responding to increased interest in investigations from external auditors
Scrutiny of auditors for failing to demonstrate appropriate professional skepticism is impacting how auditors engage with their client’s investigations. While the auditor’s responsibilities are to obtain reasonable assurance – not absolute - that the financial statements are free from fraud, auditors are taking increased interest in investigations into areas like corruption. Management’s role in or ignorance of cross-border corruption could signal a lack of integrity and/or competence, which are qualitatively material, or the contract predicated on bribes may be commercially material to a local operation. It is important not to underestimate the impact auditors – even in less commercially material geographies – can have on resolving and communicating your investigation. Be prepared to provide additional disclosures of the progress and findings and for the auditors to potentially reperform work over areas material to their opinion.
In addition to these investigative challenges, companies are being pushed to enhance compliance programs to address increasingly complex areas such as the DOJ’s expectations on ephemeral messaging, the UK’s new Failure to Prevent Fraud offense, and managing the intersection of corruption, sanctions, and human rights violations within supply chains. The bottom line: corporate compliance teams need to be more sophisticated and resourceful than ever before.
This article was written in collaboration with Dylan Moses, Partner at K&L Gates LLP.
© Copyright 2023. The views expressed herein are those of the author(s) and not necessarily the views of Ankura Consulting Group, LLC., its management, its subsidiaries, its affiliates, or its other professionals. Ankura is not a law firm and cannot provide legal advice.
