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The Asia-Pacific Investigations Review 2019 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 Senior business development manager Nicholas O’Callaghan GIR Insight business development manager Edward Perugia [email protected] Tel: +1 202 831 4658 Head of production Adam Myers Deputy head of production Simon Busby Chief subeditor Jonathan Allen Editorial coordinator Hannah Higgins Production editor Gina Mete Subeditor Charlotte Stretch Editor, Global Investigations Review Marieke Breijer 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 2018 be advised that this is a developing area. © 2018 Law Business Research Limited ISBN: 978-1-78915-108-4 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
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