An internal investigation is rarely a straightforward exercise. From the moment an ethics and compliance concern is raised, legal and compliance teams are required to make judgment calls with incomplete information on a range of issues – often under immense time pressure – against the backdrop of employee sensitivities, regulatory expectations, and operational disruption. While many of these issues may appear familiar and straightforward at first blush, how they are handled in practice can have a ripple effect on a number of important factors in the overall effectiveness of an internal investigation, including employee cooperation, the organization’s ability to adequately remediate, and ultimately, the organization’s exposure to litigation and enforcement risk.
For in-house counsel operating in the Middle East and Africa, these issues are layered onto distinctive legal, cultural, and institutional landscapes, including a regional patchwork of civil law systems, common-law free zones, and rapidly evolving regulatory regimes each with their own approach to privilege (or lack thereof), data protection, and disclosure obligations. In short, decisions that may be routine in New York, London, or Paris can carry materially different consequences in Dubai, Lagos, or Johannesburg.
In this series of articles, we will walk through the key issues and decision points that arise over the course of an internal investigation. Privilege, preservation of data, witness handling, and scoping decisions all have the potential either to streamline an already resource-intensive process or to complicate it significantly. Experience also teaches us that in investigations in the Middle East and Africa, early missteps in investigations tend to be less forgiving.
This initial piece provides a high level overview of the investigation lifecycle and highlights some of the key issues that commonly arise at each stage. Future installments in this series will explore certain of these issues in greater depth.
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