The Asia-Pacific Investigations Review 2018
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THE INVESTIGATIONS REVIEW OF THE AMERICAS 2018 – A Global Investigations Review Special Report THE ASIA-PACIFIC INVESTIGATIONS REVIEW 2018 Published by Global Investigations Review in association with AlixPartners Kim & Chang Archer & Angel King & Wood Mallesons DLA Piper Linklaters FTI Consulting Nishimura & Asahi Herbert Smith Freehills Tilleke & Gibbins Hogan Lovells WongPartnership LLP GIR Globwww.globalinvestigationsreview.comal Investigati ons Review The law and practice of international investigations Global Investigations Review GIR The law and practice of iinnternternatiatioonalnal investigationsinvestigations The Asia-Pacific Investigations Review 2018 A Global Investigations Review Special Report The Asia-Pacific Investigations Review 2018 Senior co-publishing business development manager George Ingledew Senior co-publishing manager Edward Perugia [email protected] Tel: +1 202 831 4658 Head of production Adam Myers Editorial coordinator Iain Wilson Chief subeditor Jonathan Allen Senior production editor Simon Busby Senior subeditor Anna Andreoli Editor, Global Investigations Review David Vascott Editor in chief David Samuels Cover image credit: ismagilov/iStock/Thinkstock Subscription details To subscribe please contact: Tel: +44 20 3780 4242 Fax: +44 20 7229 6910 [email protected] No photocopying. CLA and other agency licensing systems do not apply. For an authorised copy contact Edward Perugia ([email protected]) The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of August 2017 be advised that this is a developing area. © 2017 Law Business Research Limited ISSN: 2059-9129 Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112 The Asia-Pacific Investigations Review 2018 Published in association with: AlixPartners Archer & Angel DLA Piper FTI Consulting Herbert Smith Freehills Hogan Lovells Kim & Chang King & Wood Mallesons Linklaters Nishimura & Asahi Tilleke & Gibbins WongPartnership LLP Contents Cross-border overviews India: internal investigations .................................44 Srijoy Das and Disha Mohanty Anti-corruption enforcement in the Archer & Angel ASEAN region .............................................................1 Japan: overview .......................................................48 Maurice Burke, Wataru Kawai and David Gargaro Hogan Lovells Kaku Hirao Nishimura & Asahi Cooperation: the defendable investigation ............. 7 Korea: effective anti-corruption compliance ........52 Jarrod Baker and Brett Clapp FTI Consulting Myungsuk Sean Choi and Michael Yu Kim & Chang Forensic accountancy ...............................................11 Laos: anti-corruption laws key to economic Brent Carlson development ........................................................... 57 AlixPartners Dino Santaniello Protecting privilege in Asia investigations ............ 16 Tilleke & Gibbins Kyle Wombolt, Christine Cuthbert and Anita Phillips Myanmar: anti-corruption reforms and Herbert Smith Freehills initiatives ................................................................62 Sher Hann Chua and Nwe Oo Tilleke & Gibbins Country chapters Singapore: handling financial services Australia: handling internal investigations ........... 21 investigations .........................................................67 Rani John and James Morse Joy Tan and Koh Swee Yen DLA Piper WongPartnership LLP Cambodia: anti-corruption ....................................26 Thailand: anti-corruption compliance ................... 73 David Mol Michael Ramirez Tilleke & Gibbins Tilleke & Gibbins China: guidance on cartel investigations ............... 30 Vietnam: compliance risks ...................................... 77 Susan Ning and Kate Peng John Frangos King & Wood Mallesons Tilleke & Gibbins China: handling internal investigations ................. 39 Melvin Sng, Justin Tang and Steven Pettigrove Linklaters www.globalinvestigationsreview.com v Australia: handling internal investigations Rani John and James Morse DLA Piper It goes without saying that wrongful conduct in a corporate setting can result in a haphazard investigation process and a less than cred- can have drastic and irreparable legal, commercial and reputational ible – or even unreliable – investigation report. consequences for the individuals and entities involved. Internal investigations, which can be carried out quickly and tailored to Identifying who will conduct the investigation address specific company concerns, can be particularly well suited Once the company has decided to commence an internal investi- to identifying, minimising and remediating such fallout. gation, it will need to appoint someone to take responsibility for However, what makes an efficient and effective investigation can coordinating and conducting the investigation. Often, this will vary dramatically depending on the subject matter of the investiga- be a member of the company’s legal team. However, there may be tion, and the individuals and entities involved. This article provides cases where it is more appropriate for members of the board to have a brief overview of the key considerations that will allow a company oversight of the conduct of the investigation – for example, where to craft and manage an effective Australian internal investigation, to the conduct of senior management is impugned. achieve a prompt and robust outcome. Likewise, if the scale of the investigation involves numerous persons across various offices and a large quantity of factually or Launching an investigation technically dense material, the company may need to allocate addi- There are countless reasons for commencing an internal investiga- tional and specific resources to the investigation. For example, if the tion. A company may itself have identified potential wrongdoing. subject matter of the investigation is a serious and systemic issue, or Third parties may have alleged inappropriate conduct. Regulators potentially involves misconduct on the part of senior personnel, it may have made informal enquiries or launched a formal investiga- may be advisable for external advisers to conduct the investigation. tion, either of the company itself or of another industry participant, This often adds an additional layer of impartiality, objectivity and that has knock-on consequences for the company. In some cases, forensic scrutiny, and can assist in navigating difficulties created regulators may have required an organisation to undertake an inter- by internal reporting lines or interpersonal relationships between nal investigation (see, for example, section 53 of the Independent company personnel. Commission Against Corruption Act 1988 (NSW)), or there may The members of the investigations team should have an appro- be other circumstances creating impetus to investigate (for example, priate combination of skills, training and experience to support licence requirements or positive reporting obligations in particular a well-rounded and thorough investigation. If the investigation industries). involves topics where specialised expertise would be beneficial (such In the near future, entities may also commence investigations as concerns about securities or antitrust violations), that should be to determine whether notification is required under the mandatory taken into account in forming the team. Failure to appoint appro- data breach notification laws introduced into the Privacy Act 1988 priate persons could compromise the investigation process and (Cth) by the passing of the Privacy Amendment (Notifiable Data outcome. For similar reasons, close colleagues or peers of persons Breaches) Act 2017 (Cth) in February 2017, in the event the entity who are ‘at risk’ in the investigation should not be appointed to the suspects but is not certain that a serious and eligible data breach investigations team. has occurred. Entities will be required under the new data breach notification scheme to undertake ‘reasonable and expeditious Setting the remit of the investigation assessment’ to determine whether there are ‘reasonable grounds’ to The scope of the internal investigation must be set carefully and consider that an eligible data breach has occurred. This assessment clearly, with its sole focus on responding to the particular identi- must be made within 30 days of the entity becoming aware of the fied problem. It can be useful to prepare written terms of reference, relevant circumstances. Entities may also avoid the new notification which identify those matters that fall within the subject matter of requirements if they take remedial action before any serious harm is the internal investigation and – equally critically – those that fall caused by any eligible data breaches. outside. If the investigation has been prompted by regulatory atten- In some circumstances, urgent action is necessary. This includes tion, the intended interaction between the internal investigation where there is an actual or anticipated destruction of documents and any existing or anticipated regulatory process should be taken (discussed below), or where