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International Investigations
1.
INTERNATIONAL INVESTIGATIONS 1
2.
It’s 4 pm on a Friday a2ernoon… • Your client’s General Counsel gets a call from the company’s CFO, who is based in London; • The CFO has noEced an unusual number of product returns from the company’s South Asian customers… and didn’t know that the products had a right of return; •
A whistle‐blower has been hinEng at irregular business pracEces in the South Asian business division; • The company trades depository receipts on the NYSE and is scheduled to release its quarterly financial results in 10 days; • 4:45 pm…. You get the call from the General Counsel. 2
3.
What do you do next? • How does the company figure out whether something unlawful has happened? • Should there be an invesEgaEon? •
If so, who should undertake it? • Should the outside counsel be involved? • Will the review be privileged? • When does the company have an obligaEon to report the issue to the UK or US regulators? 3
4.
Challenges faced in conducEng a cross‐ border invesEgaEon • Foreign Evidence •
MulElingual Computer Data • Foreign NaEonals • Foreign Languages • Parallel DomesEc and/or Foreign InvesEgaEon • Foreign Laws and Culture • Foreign Privileges and ImmuniEes 4
5.
SubstanEve ConsideraEons • Preliminary ConsideraEon: Which regulator is likely to exercise jurisdicEon over the allegedly wrongful conduct? • Subject Ma`er JurisdicEon •
Personal JurisdicEon • Forum Non Conveniens 5
6.
Procedural ConsideraEons • The OrganizaEon and Culture of the CorporaEon • Person in Charge of InvesEgaEon •
The InvesEgaEon Team: – Language – Culture – “Maintaining face” – Knowledge of Foreign Laws 6
7.
CollecEng Evidence Abroad • The Hague Evidence ConvenEon • Le`ers Rogatory •
Mutual Legal Assistance TreaEes (MLATs) • Memoranda of Understanding (MOUs) • Caveat: Be wary of “collec1ng evidence” in foreign jurisdic1ons 7
8.
PotenEal Barriers to Obtaining InformaEon • The EU DirecEve on Data Privacy • Blocking Statutes, e.g. French Penal Law •
Local laws, poliEcs, and culture 8
9.
Other ConsideraEons • Corporate Miranda • A`orney‐Client Privilege: Now You See It, Now You Don’t – Common law systems v. Civil law systems – Outside counsel v. In‐house counsel •
Privilege Against Self‐IncriminaEon – Differences in how a witness may “take the Fi2h” 9
10.
Disclosure • Whether, When, and How to disclose the “problem” or the result of the invesEgaEon; • Which regulatory, government or agency comes first; •
Timing of disclosure; • Leaks and media 10
11.
Ashish S. Joshi, Esq. Detroit Metro 214 North 4th Avenue, Ann Arbor, Michigan 48104‐5521 Washington, D.C. Republic Place 1776 I Street, NW, 9th Floor, Washington, DC 20006‐3708 Contact T: (734) 327‐5030 F: (888) 995‐7868 Web www. lorandoslaw.com 11
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