THE ASIA-PACIFIC INVESTIGATIONS REVIEW 2019

Published by Global Investigations Review in association with

AlixPartners Morrison & Foerster LLP

Archer & Angel Nishimura & Asahi

DLA Piper Nyman Gibson Miralis

FTI Consulting Tilleke & Gibbins

Herbert Smith Freehills WongPartnership LLP

Hogan Lovells 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 2019

A Global Investigations Review Special Report

Reproduced with permission from Law Business Research Ltd This article was first published in October 2018 For further information please contact [email protected] The Asia-Pacific Investigations Review 2019

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Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112 The Asia-Pacific Investigations Review 2019

Published in association with:

AlixPartners

Archer & Angel

DLA Piper

FTI Consulting

Herbert Smith Freehills

Hogan Lovells

Morrison & Foerster LLP

Nishimura & Asahi

Nyman Gibson Miralis

Tilleke & Gibbins

WongPartnership LLP Contents

Cross-Border Overviews

Data Privacy and Transfer in Investigations...... 1 India: Internal Investigations...... 39 Srijoy Das, Disha Mohanty and Harsahib Singh Chadha Daniel P Levison, David Hambrick and Daniel Steel Archer & Angel Morrison & Foerster LLP

Deferred Prosecution Agreements: Practical Indonesia: Anti-Bribery and Corruption Trends.....45 Considerations...... 7 Maurice Burke, David Gargaro and Dyah Paramita Hogan Lovells Jarrod Baker and Beth Junell FTI Consulting Japan: Overview...... 50 Forensic Accounting in Cross-Border Kaku Hirao Investigations...... 12 Nishimura & Asahi Colum Bancroft and Edward Boyle Laos: Anti-Corruption Laws Key to Economic AlixPartners Development...... 54 The Parameters of Privilege in Dino Santaniello Multi-Jurisdictional Investigations...... 17 Tilleke & Gibbins Kyle Wombolt, Christine Cuthbert and Anita Phillips Myanmar: Continuing the Fight against Herbert Smith Freehills Corruption...... 59 Sher Hann Chua and Nwe Oo Tilleke & Gibbins Country Chapters Singapore: Handling Financial Services Australia: An Increasingly Global Approach...... 23 Investigations...... 63 Dennis Miralis and Phillip Gibson Joy Tan and Koh Swee Yen Nyman Gibson Miralis WongPartnership LLP

Australia: Handling Internal Investigations...... 29 Thailand: Anti-Corruption Compliance...... 70 Rani John, James Morse and Natalie Caton Michael Ramirez DLA Piper Tilleke & Gibbins

Cambodia: Anti-Corruption...... 35 Vietnam: Compliance Risks...... 74 David Mol John Frangos Tilleke & Gibbins Tilleke & Gibbins

www.globalinvestigationsreview.com v Preface

Global Investigations Review is the hub of the international investigations community, bringing practitioners together through our journalists’ daily news, GIR Insight resources and GIR Live events. GIR gives our subscribers – mainly in-house counsel, private practice lawyers, government enforcement agencies and forensics advisers – the most readable explanation of all the cross-border developments that matter, enabling them to stay on top of their game. Over the past 12 months, our reporters have conducted roundtables on the cost of investigations and the future of investigations firms, interviewed government enforcers, refreshed our surveys showcasing Women in Investigations and the top firms in investigations (the GIR 100) and – after a successful court decision – obliged the DOJ to release the names of unsuccessful candidates for Foreign Corrupt Practices Act monitorships.

Complementing our journalists’ original work, this annual report gives readers the ‘front-line’ view from selected practitioners. Each is invited to reflect on the complex issues that they – and their in-house clients – face in internal and government investigations every day. All authors are leaders in their field and we are grateful to them all for their time and energy. We encourage readers and co-authors to share feedback and comments.

If you would like to get involved in future editions or have thoughts for us, please contact [email protected].

We hope you enjoy reading The Asia-Pacific Investigations Review 2019.

Global Investigations Review London August 2018

vi The Asia-Pacific Investigations Review 2019 Australia: Handling Internal Investigations

Rani John, James Morse and Natalie Caton DLA Piper

It goes without saying that wrongful conduct in a corporate setting steps they have taken to ensure that their goods and services are not can have drastic and irreparable legal, commercial and reputational a product of supply chains in which modern slavery is taking place. consequences for the individuals and entities involved. Internal The New South Wales legislation passed Parliament on 21 June 2018 investigations, which can be carried out quickly and tailored to and is expected to come into force later in 2018. address specific company concerns, can be particularly well suited In some circumstances, urgent action is necessary. This includes to identifying, minimising and remediating such fallout. This is where there is an actual or anticipated destruction of documents particularly relevant in the current corporate climate in Australia, (discussed below), or where relevant personnel are about to depart which has seen an increased level of scrutiny over corporate govern- from the organisation. Immediate action is also required where ance and operational issues. More than ever, there is an expectation any unreasonable delay in launching the investigation could be that board members and senior managers understand what is hap- seen as acquiescence or tacit approval of the impugned conduct by pening in their company and take responsibility for the actions of the company. employees and third parties who carry out business on behalf of the While those considerations may dictate the timing of immediate company. In this climate, internal investigations are becoming more steps in an investigation, other factors, such as the need to efficiently prevalent and this trend will only continue. carry on business and the availability of resources, will also influence What makes an efficient and effective investigation can vary an investigation’s progress. Insufficient information and resources dramatically depending on the subject matter of the investigation, can result in a haphazard investigation process and a less than cred- and the individuals and entities involved. This article provides a ible – or even unreliable – investigation report. brief overview of the key considerations that will allow a company to craft and manage an effective Australian internal investigation, Identifying who will conduct the investigation and achieve a prompt and robust outcome. Once the company has decided to commence an internal investi- gation, it will need to appoint someone to take responsibility for Launching an investigation coordinating and conducting the investigation. Often, this will There are countless reasons for commencing an internal investiga- be a member of the company’s legal team. However, there may be tion. A company may itself have identified potential wrongdoing. cases where it is more appropriate for members of the board to have Third parties may have alleged inappropriate conduct. Regulators oversight of the conduct of the investigation – for example, where may have made informal enquiries or launched a formal investiga- the conduct of senior management is impugned. tion, either of the company itself or of another industry participant, Likewise, if the scale of the investigation involves numerous that has knock-on consequences for the company. In some cases, persons across various offices and a large quantity of factually or regulators may have required an organisation to undertake an inter- technically dense material, the company may need to allocate addi- nal investigation (see, for example, section 53 of the Independent tional and specific resources to the investigation. For example, if the Commission Against Corruption Act 1988 (NSW)), or there may subject matter of the investigation is a serious and systemic issue, or be other circumstances creating impetus to investigate (for example, potentially involves misconduct on the part of senior personnel, it licence requirements or positive reporting obligations in particular may be advisable for external advisers to conduct the investigation. industries). This often adds an additional layer of impartiality, objectivity and Entities may commence investigations to determine whether forensic scrutiny, and can assist in navigating difficulties created notification is required under the mandatory data breach notifica- by internal reporting lines or interpersonal relationships between tion laws introduced into the Privacy Act 1988 (Cth) by the passing company personnel. of the Privacy Amendment (Notifiable Data Breaches) Act 2017 The members of the investigations team should have an appro- (Cth), which took effect on 22 February 2018, in the event the entity priate combination of skills, training and experience to support suspects but is not certain that a serious and eligible data breach has a well-rounded and thorough investigation. If the investigation occurred. Entities are required under the data breach notification involves topics where specialised expertise would be beneficial (such scheme to undertake ‘reasonable and expeditious assessment’ to as concerns about securities or antitrust violations), that should be determine whether there are ‘reasonable grounds’ to consider that taken into account in forming the team. Failure to appoint appro- an eligible data breach has occurred. This assessment must be made priate persons could compromise the investigation process and within 30 days of the entity becoming aware of the relevant circum- outcome. For similar reasons, close colleagues or peers of persons stances. Entities may also avoid the new notification requirements if who are ‘at risk’ in the investigation should not be appointed to the they take remedial action before any serious harm is caused by any investigations team. eligible data breaches. In the near future, entities may also commence investigations in Setting the remit of the investigation relation to proposed Commonwealth and state modern slavery laws, The scope of the internal investigation must be set carefully and which will require large commercial organisations to report on the clearly, with its sole focus on responding to the particular identified www.globalinvestigationsreview.com 29 AUSTRALIA

problem. It can be useful to prepare written terms of reference, in deciding how to proceed. Some Australian regulators have issued which identify those matters that fall within the subject matter of guidance notes as a reference point for those considering or under- the internal investigation and – equally critically – those that fall taking an internal investigation (see, for example, ‘Fact Finder: A outside. If the investigation has been prompted by regulatory atten- guide to conducting internal investigations’, NSW Independent tion, the intended interaction between the internal investigation Commission Against Corruption, March 2012). and any existing or anticipated regulatory process should be taken into account. Documents The proper constitution of the investigations team, along with An important first step in internal investigations in Australia – like the drafting of suitable terms of reference, not only ensures the many other jurisdictions – is the appropriate collation, compilation integrity of the investigation and the information gathered by it, and retention of relevant documents. Document preservation must but also plays an important part in determining issues of privilege include both hard copy and electronic documents to ensure all (discussed below). These initial decisions should not be made on a original documents are quarantined in their original form. It may ‘set and forget’ basis. As investigations invariably evolve over time, be appropriate to take a forensic image of all relevant electronic it is vital to reassess the scope of the investigation at frequent and data to ensure the integrity of information (including metadata) regular intervals, and make any necessary changes. is maintained throughout the course of the investigation. The company should take urgent steps to preserve documents that could Whistleblower protections otherwise be destroyed by innocent means (for example, scheduled Changes to Australia’s whistleblower regime may impact how a record management) or malicious means. company commences and carries out an internal investigation. The Some of the issues a company may need to confront in document Treasury Law Amendment (Enhancing Whistleblower Protections) collation include how to treat private documents an employee has Bill 2017 (Cth) was introduced by the Commonwealth government stored in or on company property. This includes private information on 7 December 2017 and is, at the time of writing, before the Senate. or communications stored on the company’s computers or mobile Relevantly, the amendments introduced by the Bill (if passed) will phones, or on the company’s premises (such as at the employee’s require public companies and large proprietary companies to have desk or workstation). In many circumstances, the company’s ability a whistleblower policy in place that explains, among other things, to access and review such private documents will depend on the how the company will ensure the fair treatment of employees who specific terms of the employment contract, or any applicable codes are mentioned in any protected disclosures made in accordance with of conduct or terms of use, and particularly whether consent has the proposed legislation. A related consideration is for companies to been previously provided by employees for employer access to have in place systems and processes to make sure that internal inves- such material. tigations based on whistleblower disclosures proceed in a manner The company will also need to consider the impact of the congruent with the enhanced protections – for example, protecting Privacy Act 1988 (Cth), which regulates the company’s handling of the identity of anonymous whistleblowers (if the Bill is passed, it personal information about individuals. There are also differing laws will be a civil penalty contravention to disclose an anonymous across various state and territory jurisdictions about the ability to whistleblower’s identity). use surveillance or recording devices to obtain information with- out the consent of the person under surveillance. As privacy and Communicating the existence of the investigation surveillance considerations can arise in various ways throughout The next step is for the company to communicate information an internal investigation, the investigations team should ensure it internally regarding the investigation. It is often appropriate to issue has addressed the relevant legal requirements when embarking on a document preservation notice, drafted in a neutral and objective data collection. way, to all relevant personnel and, in some cases, to all staff, on a confidential basis. Specific document collation requests to relevant Witnesses individuals may also be needed, as well as guidance on what may Another key aspect of any investigation is interviewing relevant and may not be discussed between company staff, or third parties, individuals. It is vitally important that the investigations team concerning the investigation. properly identifies the relevant individuals, and arranges for them As a general rule, it is not advisable to disclose the details of to be interviewed separately, in an appropriate order, and with clear the investigation in such communications, or the circumstances that objectives. A core bundle of documents should be produced for each have led to the investigation. This is for many reasons, but particu- interviewee to be taken through during the course of the interview. larly because those communications may not be privileged, and may It is generally not desirable to provide the interviewees with advance therefore be the subject of disclosure to third parties in the future. copies of the documents, and they should not be permitted to retain The enhanced whistleblower protections discussed above may also copies of any such documents. The interviewees should also be impact how such communications are framed. instructed not to discuss their evidence with anyone else. This is to maintain confidentiality, avoid a potential waiver of privilege and Conducting the investigation also avoid potential contamination of evidence. There are no general specifications in Australia as to how an internal When conducting interviews, the company’s legal representa- investigation should be carried out, including in relation to pro- tives should clearly inform the interviewee that they represent the cedural matters such as independent representation for company interests of the company, and while the content of the interview is employees interviewed in the course of an investigation. The com- confidential and privileged, the company reserves the right to waive pany should consider and address these issues prior to gathering that confidentiality or privilege in the future. evidence in the investigation. Best practice suggests companies take In appropriate circumstances, interviewees should not only be into account principles of natural justice, as well as anticipated inter- allowed but encouraged to obtain independent legal representation actions with regulators about the subject matter of the investigation, for the purposes of the interview. In some cases, the company – or

30 The Asia-Pacific Investigations Review 2019 HANDLING INTERNAL INVESTIGATIONS

an insurer – may be obliged to indemnify the interviewee for the persons, and guard against their accessing any relevant documents costs of such representation. or reports created. During the interview process, the interviewer should be focused Depending on the company in question, there may be some on assessing the interviewee’s recollection, as opposed to his or her requirement or obligation to disclose aspects of the investigation to recreation, of relevant events. Interviewers should always be alive to regulatory bodies or authorities. This is particularly so if the inves- the potential for interviewees to give incorrect accounts, and should tigation intersects with an actual or anticipated regulatory investi- be prepared to challenge and test the evidence given by the inter- gation, and especially if the company wishes to self-report certain viewee there and then without the need to adjourn the interview, conduct in an effort to obtain immunity from or leniency in respect which may allow the interviewee an opportunity to tailor his or of potential penalties. In some industries, licence conditions can her evidence. also create positive reporting obligations where potential contraven- In Australia, written records of the interview created by internal tions are identified (for example, in the financial services industry). or external lawyers for the purpose of advising the company will If the company is a publicly listed entity, disclosure of certain usually be privileged. This is not the case for notes taken by the aspects of the investigation may be required in order to comply interviewee, or any ‘support person’ brought into the interview by with the company’s continuous disclosure obligations under the the interviewee. The only exception is where notes are created by the Australian Securities Exchange Listing Rules. The company may interviewee’s appointed legal representative, who has attended the also need to disclose certain circumstances to their insurer in order interview for the purpose of advising the interviewee. Those notes to obtain coverage in respect of future claims against the company. will ordinarily be privileged in the hands of the interviewee, but not The Anti-Money Laundering and Counter-Terrorism Financing the company. Act 2006 (Cth) also imposes certain transaction and compliance The investigations team should also consider whether it is useful reporting obligations on reporting entities, which can be triggered to record the interview, or obtain a signed written statement from if certain circumstances are identified in the course of an internal the interviewee reflecting the evidence given during the interview. investigation. Reporting entities must also take care not to ‘tip off’ In the event the interview was recorded, the team should also con- persons in relation to these matters at any time, including during or sider whether to request that the interviewee sign a transcript of the following an investigation, as it is an offence to do so. interview, verifying its accuracy. The assessment of how to record the Where criminal conduct is suspected or identified, although interview may be influenced by views about the prospect of future there is usually no positive obligation to do so, the company may regulatory or litigious activity. Unlike some other jurisdictions, it is decide to engage with relevant law enforcement agencies, such as the not yet commonplace for Australian regulators to request access to police. Where aspects of an investigation may become public, the written statements or notes of witness interviews produced in the company may also wish to engage public relations personnel to assist course of internal investigations; any such requests are typically met in managing media coverage and potential reputational impact. with claims of privilege. The more typical course is for Australian To the extent that criminal conduct is suspected or identified, regulators to exercise their compulsory powers to conduct their own companies may be incentivised in the near future to proactively interview processes. However, companies should bear in mind the self-report internal misconduct in return for reduced penalties, possibility of such requests, particularly if the subject matter of the with legislation to introduce a deferred prosecution agreement investigation involves multi-jurisdictional issues, where regulators (DPA) scheme in Australia before Parliament at the time of writing. in other jurisdictions may have different practices and different The intention of the DPA scheme is to encourage self-reporting rules as to the availability of privilege claims may apply. of misconduct by corporations, to assist in addressing some chal- The company may also need to confront issues that arise when lenges inherent in detecting and investigating serious corporate individuals refuse to participate in an interview or other aspects crime, and to offer corporations the opportunity to reduce the of the investigation, which can trigger the need for disciplinary time, cost and uncertainty connected with drawn-out investigations action. The company must also consider whether certain employees and prosecutions. who are the subject of (or are at risk in) the investigation need to If passed, the Australian DPA scheme, proposed in the Crimes be suspended, or, where serious wrongdoing is clearly identified, Legislation Amendment (Combatting Corporate Crime) Bill 2017 dismissed (which can then affect the willingness of those individu- (Cth), will allow the Commonwealth Director of Public Prosecutions als to cooperate with the investigation). All of these issues should to invite a company that is alleged to have engaged in serious cor- be assessed with an awareness of the company’s relevant employ- porate crime to negotiate an agreement to comply with a range of ment obligations. specified conditions. In considering whether to offer a DPA, the Director of Public Prosecutions will take into account whether the Reporting on the investigation company has self-reported the suspected misconduct and the extent The investigations team should keep relevant internal stakeholders to which the company has demonstrated a willingness to cooperate informed of the progress of the investigation. Once the investigation with the law enforcement agency. Conditions of the DPA will require has concluded, they will also need to report its findings. A key issue a company to admit to agreed facts detailing their misconduct, pay that often arises in this context is identifying the relevant stakehold- a financial penalty to the government and disgorge profits and other ers who need to be informed, and at what stages. Generally, dissemi- benefits obtained through the misconduct. If the company fulfils its nation of information relating to the investigation should be on a obligations under the DPA, it will not subsequently be prosecuted in ‘need to know’ basis. That is because doing otherwise may jeopardise relation to the offences identified in the DPA. a company’s ability to claim or retain privilege over those reports. Mandatory data breach notification laws came into effect in Reporting should also take into account the subject matter of the February 2018 via recent amendments to the Privacy Act 1988 investigation and the personnel potentially implicated. For example, (Cth). They require the relevant entity to notify the Office of the if senior management is potentially involved, it will be necessary to Australian Information Commissioner and any affected individuals devise reporting arrangements that avoid communication to those where there are reasonable grounds to believe a serious, eligible data www.globalinvestigationsreview.com 31 AUSTRALIA

breach has occurred. The Privacy Commissioner has encouraged v Eurasian Natural Resources Corporation Ltd [2017] 1 WLR 4205 relevant entities to begin undertaking audits and developing breach (from which an appeal is pending), R v Paul Jukes [2018] EWCA response plans in anticipation. Crim 176, and R v Serious Fraud Office [2018] EWHC 856 (Admin). While it is one thing to identify who should be provided with Australian courts have not taken this narrow approach as to who information relating to the investigation, it is another to identify constitutes a client, however, they have taken differing approaches what should be reported. In some circumstances, it might be appro- about whether lawyers’ notes of interviews of witnesses are protected priate merely to identify that an investigation has been undertaken by privilege, depending on the particular circumstances. and has concluded. In other circumstances, it may be appropriate to Issues also frequently arise as to whether privilege attaches to identify the results of the investigation, or the recommendations or documents prepared by third parties. Third-party service providers, findings made in relation to certain matters. such as information technology consultants or forensic accountants At all stages, the company should also consider whether com- (among others) may need to be involved in the investigation process, munications will be protected by privilege and, if so, how to best including to provide specific advice in relation to narrow or discrete protect that privilege. issues. In Australia, privilege can attach to documents prepared by these third parties, provided the document was created for the Privilege – a critical factor dominant purpose of obtaining legal advice or for use in actual or Privilege is a key consideration through the course of an internal anticipated litigation. When engaging third parties, the engagement investigation. An internal investigation where relevant communica- letter should clearly specify the limited purpose for which those tions are protected by privilege can greatly assist an investigations third parties are engaged, their obligations to maintain confidential- team to obtain full and frank disclosure, and enable the company ity, and confirm that disclosure of any privileged documents to them to thoroughly assess the situation with a fuller understanding of the will not constitute a waiver to the world at large. facts than might otherwise occur. In Australia, whether ‘limited waiver’ arrangements are effec- There is a healthy respect for privilege in Australia, including in tive to allow disclosure of privileged information to a regulator, respect of documents created for the purpose of internal investiga- while maintaining privilege against third parties, was examined in tions. However, this does not mean any claim for privilege over such Cantor v Audi Australia Pty Ltd [2016] FCA 1391. There, the Federal documents will be blindly accepted. Regulators and other litigants Court of Australia considered whether legal advice disclosed to a can and often do vigorously challenge privilege claims. German regulator in response to its requests for information from In Australia, legal professional privilege applies to communica- the company during the course of its investigations maintained tions that are prepared for the dominant purpose of: privilege for the purpose of the Australian litigation. The Court held • obtaining or providing legal advice; or that privilege was maintained as against the applicants, because the • obtaining or providing legal services (including representation) document had been provided in circumstances of confidentiality in actual or anticipated litigation. such that any waiver of privilege was limited to the German regula- tor. That regulator had no authority to waive that privilege, except to The test of whether a communication was prepared for the dominant the extent compelled by law, which had not been successfully forced purpose of either of the above limbs requires consideration of the upon the regulator. However, Australian courts are yet to authorita- ruling, prevailing or most influential purpose of the communica- tively determine whether ‘limited waiver’ arrangements are effective tion. The starting point is generally to ask what the intended use to allow disclosure of privileged information to an Australian regu- of the communication is. Where a communication has mixed pur- lator, although at least one Australian regulator, ASIC, offers a pro poses, only one of which is a privileged purpose, it is unlikely to be forma agreement to facilitate disclosure of privileged information to protected by privilege. It is critical to consider the communications it on a voluntary basis. to be made and any documents created in the course of an internal The UK decision Property Alliance Group Limited v The Royal investigation against that test. Bank Of Scotland Plc [2015] EWHC 1557 (Ch) potentially offers Where legal advice is given by an in-house lawyer during some further guidance. There, the Court considered whether com- the course of or in response to an internal investigation, legal munication with regulatory bodies in the course of an investiga- professional privilege may still attach to that advice, provided the tion was capable of attracting privilege. It held that disclosure by in-house lawyer was a qualified lawyer acting in the capacity of an individuals and entities to regulators will not necessarily result in independent professional adviser. Independence is crucial. In order a waiver of privilege if it occurs confidentially and for the limited to promote such independence, in-house lawyers should maintain purpose of the ongoing investigation. Such communications and their practising certificates, maintain secure files that are separate disclosures are capable of retaining privilege on the basis they are from the remainder of the organisation, and ensure their legal and subject to a limited waiver in respect of the relevant regulatory body non-legal work functions are separated as much as possible. only. However, importantly, the privilege may be lost if the party In the UK, documents produced and communications made by claiming privilege later seeks to rely on the findings of the regulatory in-house lawyers in the course of undertaking internal investigations body with which it communicated. are not necessarily protected by privilege. In the RBS Rights Issue There are also many other ways in which privilege can be Litigation [2016] EWHC 3161 (Ch), the English High Court consid- waived. As confidentiality is an essential precondition to the exist- ered that not all officers and employees of the company should be ence and maintenance of the privilege, waiver will often occur where treated as a client for the purpose of legal professional privilege and the actions of a party are plainly inconsistent with the maintenance that certain transcripts and notes from interviews conducted by the of that confidentiality. This can include where the substance of legal in-house lawyers gathered during an internal investigation therefore advice is disclosed in company announcements, where legal advice were not considered to be lawyer–client communications and were is referred to in correspondence in order to support a position not protected by legal professional privilege. That position was rein- (including in correspondence with regulators), or when the effect of forced in subsequent UK decisions, including Serious Fraud Office legal advice is disclosed and recorded in minutes of board meetings.

32 The Asia-Pacific Investigations Review 2019 HANDLING INTERNAL INVESTIGATIONS

Where an investigation deals with cross-border subject matter, the company should take into account the fact that rules regarding privilege can vary between jurisdictions, so that communications protected by privilege in Australia may not receive the same treat- Rani John ment elsewhere. DLA Piper

Concluding comments Rani John, a partner with DLA Piper in Sydney, is a leading investi- Internal investigations are an important tool for identifying, mini- gations and dispute resolution lawyer, with wide-ranging and deep mising and remediating actual or alleged corporate wrongdoing. experience in complex, high-profile and large-scale commercial liti- The way in which an internal investigation is conducted can also gation, regulatory investigations and advice work. She is described have significant benefits for preparing for and responding to any by clients in Chambers Asia-Pacific as ‘a fierce and determined associated civil and criminal proceedings. Yet there is obviously no litigator, noted for her confidence-inspiring tactical instincts and one-size-fits-all solution. The subject matter of each internal investi- good judgement’, and as a ‘highly intelligent and commercially savvy gation, along with any regulatory involvement, will shape the many litigator’ and has been recognised in Chambers Global, Chambers forensic decisions to be made during each investigation. Asia-Pacific, The Legal 500 Asia Pacific, Best Lawyers, Benchmark Having in place an appropriate regime for conducting internal Asia Pacific, Euromoney Expert Guides and Doyles’ Guide as a leading investigations, taking into account the topics outlined in this article disputes lawyer. She was also one of 100 women worldwide selected (as well as the effective conduct of internal investigations), is viewed for inclusion in Global Investigation Review’s 2015 survey ‘Women positively by Australian courts and regulators as a sign of good cor- in Investigations’ and is also ranked in Chambers Asia-Pacific for porate governance. Indeed, when used properly, the internal investi- anti-bribery and corruption, and rated a ‘leading individual’ by The gations process is not only a valuable part of a company’s arsenal to Legal 500 Asia Pacific in regulatory and compliance work. respond to allegations of wrongful conduct, but a deterrent to future Rani has extensive experience in assisting corporations and wrongful conduct, thereby yielding an even greater benefit to the senior executives in relation to securities investigations (including company in the medium-to-long term. for insider trading, breaches of disclosure requirements, market manipulation and breaches of directors’ duties), and competition and antitrust, foreign bribery, and fraud investigations. She has assisted clients in responding to compulsory notices, in examina- tions and hearings before the Australian Securities and Investments Commission, the Australian Competition and Consumer Commission and the Australian Federal Police, and in litigation by those regulators, as well as follow-on litigation by third parties. She has also assisted clients in navigating governance, media and reputational issues connected with investigations. Rani has authored or co-authored a number of publications relating to investigations, including the Australia chapter of The International Investigations Review by Law Business Research, over four editions, and ‘Internal investigations and legal professional privilege – don’t get caught in the grey zone’ in the June 2014 edition of Governance Directions.

www.globalinvestigationsreview.com 33 AUSTRALIA

James Morse Natalie Caton DLA Piper DLA Piper

James Morse, a partner with DLA Piper in Sydney, is an accredited Natalie Caton, a partner with DLA Piper in Brisbane, advises specialist in commercial litigation, who has extensive experience in multinational clients (operating across an array of sectors includ- numerous aspects of commercial litigation and dispute resolution, ing energy and mining, financial services, agricultural/food and including internal and external investigations. beverages, gaming, and infrastructure) on how to proactively deal James regularly advises both companies and individuals in mat- with a range of issues concerning corporate reputation and risk ters of differing size and scope in various state, territory and federal management, particularly with respect to cross-border and interna- jurisdictions. He frequently acts and advises in claims against com- tional business in emerging markets. pany directors and officers, and other professionals, with a focus on In this context, Natalie provides holistic, strategic advice to complex, high-value and multiparty disputes. address corporate risk throughout the business cycle, ranging James’s recent experience includes advising and acting for a from issue identification and pre-emptive risk management to former CEO of a government corporation in criminal proceedings contentious regulatory investigations and disputes. This includes arising from an investigation by the Independent Commission undertaking risk assessments and devising risk mitigation strate- Against Corruption (relating to allegations of fraud and corruption, gies, the development, implementation and monitoring of practical among others), and assisting an overseas public entity investigate and effective compliance programmes, advising on approaches to the potential for it to recover hundreds of millions of dollars as a corporate and executive (director and officer) reputation protection, result of possible breaches of duty by previous directors of that entity regulator liaison expertise and internal communication methodolo- and certain third-party suppliers and contractors. gies with respect to anti-money laundering, bribery and corruption, James also assists individuals and corporations to respond modern slavery, sanctions, white-collar crime including financial to requests for documents and information by regulators, as well crime and fraud, and, more generally, corporate compliance and as advising companies, individuals and their insurers on various business ethics. insurance-related issues associated with fraud, crime, and internal, external or regulatory investigations.

Level 22, No. 1 Martin Place DLA Piper is a global law firm with lawyers in the Americas, Asia-Pacific, Europe and the Middle Sydney, NSW 2000 East, positioning us to help companies with their legal needs around the world. Australia We strive to be the leading global business law firm by delivering quality and value to our Tel: +61 2 9286 8000 clients. We achieve this through practical and innovative legal solutions that help our clients succeed. We deliver consistent services across our platform of practices and sectors in all matters Rani John we undertake. [email protected] Our clients range from multinational, Global 1000 and Fortune 500 enterprises to emerging companies developing industry-leading technologies. They include more than half of the Fortune James Morse 250 and nearly half of the FTSE 350 or their subsidiaries. We also advise governments and public [email protected] sector bodies around the world. Our global investigations practice has handled some of the highest-profile investigations Natalie Caton in the world. With lawyers on the ground in more than 30 countries, DLA Piper clients benefit [email protected] from multidisciplinary, multi-jurisdictional teams that are quickly and cost-effectively staffed to address every type of corporate, regulatory and internal investigation. Our lawyers regularly www.dlapiper.com conduct criminal, regulatory and internal investigations, defend clients in court when necessary, and develop or help develop proactive compliance programmes and conduct internal audits.

34 The Asia-Pacific Investigations Review 2019 THE INVESTIGATIONS REVIEW OF THE AMERICAS 2018 – A Global Investigations Review Special Report ISBN 978-1-78915-108-4