Dos and Don’ts when conducting cross-border internal investigations in Latin America

International Bar Association – September 2022

By Melina Llodrá (Llodrá Law)

Introduction

Conducting cross-border internal investigations is not an easy task as it is exposed to several challenges, such as lack of time and supporting documents, cultural differences, unclear procedures and/or gaps in the local legal framework. When conducting an investigation in Latin America it is crucial to identify these challenges upfront in order to define an appropriate investigation plan and relevant procedures.

Defining the scope

When assessing the rationale behind an alleged violation, it is essential to identify any need to mitigate damage and decide on which urgent measures need to be put in place, for example, provisional measures to stop any unlawful activity while the investigation is conducted. When assessing the liability of alleged subjects and the organisation’s policy being breached, the following key questions should be considered:

·        When did alleged incident occur?

·        What exactly happened?

·        Who was involved?

·        Who was present?

·        Who may have knowledge about the incident?

·        Which key sources can be accessed quickly according to corporate policy?

·        What impact do local rules and culture have in answering the above questions?

Developing policy and procedures to manage the investigation programme

There is no unique way of conducting an investigation. Policies and procedures should consider the risks involved, the resources required (including a local adviser), the company’s internal organisation and culture and the impact on the above of the local jurisdiction framework and culture. The programme will guide the investigation process by defining: (1) what should be investigated, such as, crimes and improper conduct, also what cannot be investigated according to local legal framework (eg, subjects concerning privacy issues); (2) who conducts the investigation; and (3) where the results are reported.

When defining these three key elements, local cultural issues in Latin America may be critical, as behaviour and cultural standards may differ (eg, hospitality gifts, conflicts of interest in family-run business) and language gaps (understanding use of local language and vernacular). It is essential to involve local counsel from the outset, not only to understand the impact of local legal framework but mainly to bypass any local cultural issues, including considering such investigative techniques which are more readily acceptable in the local jurisdiction and will affect the pace of the investigation.

Conducting the investigation

There are a few necessary steps when deciding on the need for an investigation. Firstly, deciding if there are reasonable grounds to proceed with the investigation. It is important to determine whether there is enough credible information to investigate, as well as, which of the organisation’s policies or procedures might have been breached. Next, an evaluation must be conducted to determine if there are competent investigative resources available; and finally, an investigation roadmap needs to be designed, which includes outlining the investigation team. When communicating in the context of the investigation, it is always key to use neutral, non-emotional phraseology, ideally reviewed by a native speaker. This is even more important in Latin American countries, as it creates a collaborative approach and ensures focus is given to the alleged violation as opposed to the reporters.

In several Latin American countries, the tension between the need for an investigation and respect for privacy and personal rights under local rules may create obstacles to conducting the investigation. Data collection restrictions and privacy rules mean that certain tasks cannot be performed in some jurisdictions.

Gathering evidence

The following elements should be taken into account when gathering evidence:

·        collect documents following appropriate protocols and local rules;

·        seek local employment law advice;

·        allocate sufficient time to gather relevant documents (ie, access to digitalised documents may still be a challenge in some Latin American countries);

·        ensure appropriate access to all relevant databases;

·        identify applicable documents required (eg, code of ethics, the organisation’s policies and procedures, emails and electronic records, etc);

·        have security measures in place to protect the information collected; and

·        preserve evidence (chain of custody).

When conducting interviews, it is important to involve a native speaker in the interviewer’s team, in order to reduce any possible local culture issues (eg, language, slang, communication).

Conclusion

Several measures have to be considered when conducting a cross-border investigation involving Latin America. There is no ‘one-size-fits-all’ approach. Planning the investigation and selecting the appropriate investigative team, including local, native-speaking counsel, is vital in conducting the investigation in an appropriate manner. Although Spanish is the region’s most common language, be aware of the cultural differences.

An essential element in the investigation is to use the local language, ideally involving a native speaker, as the same language may be used differently within Latin America. Also, find out what the local rules and culture are and use investigative techniques which are more readily acceptable in the local jurisdiction (eg, face-to-face or virtual interviews).