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Private Cross Border Investigations Tommy Prins 21 June 2011
© 2010 Deloitte Touche Tohmatsu Limited. Introduction Fraud and deceit abound these days more than in former times Sir Edward Coke (1552 – 1634) Globalisation, the technical revolution and the opening of trade borders, often result in our forensic investigations spanning various jurisdictions and have not only changed how we work but also where we work. Deloitte2
© 2010 Deloitte Touche Tohmatsu Limited. Safety Although a cross border assignment may appear to be very exciting, attractive and lucrative the question should immediately be posed whether it is safe to send staff there. Travel agents can provide limited information Some companies have an internal risk office which can provide a risk profile of the country where the work has to be performed. International S.O.S may be contracted to provide: a comprehensive country guide. information regarding relevant events such as kidnappings and extortion and terrorist activities and can airlift a team in distress from a hotspot. Group 4 S Global Intelligence Services not only provides similar information but also physical security services. Safety is paramount and should never be compromised. Deloitte3
© 2010 Deloitte Touche Tohmatsu Limited. Team Composition Decisions regarding the team composition should be informed by: Situation in country: never just one (safety in numbers and possible corroboration). in certain situations also unwise to send only female team. Nature of assignment: whether multi-disciplinary team is required. need for foreign language speaker (French or Portuguese). Deloitte4
© 2010 Deloitte Touche Tohmatsu Limited. Logistics Vaccinations: Absolutely necessary to find out from the travel clinic which vaccinations to have. At airport in Angola you will be required to produce proof of vaccinations and inability to do so may result in this being administered under rather different circumstances than at your local clinic, or you being refused entry to the country and having to wait (possibly quite long) at the airport for the next flight back. Furthermore on your return to SA you may also be requested to produce same and refused entry without getting the necessary injections. Deloitte5
© 2010 Deloitte Touche Tohmatsu Limited. Logistics Visa Requirements: Always determine this at outset of negotiations regarding assignments and timelines for commencement. Clients have an unrealistic expectation regarding the speed and ease with which this can be obtained. Often necessary to advise clients regarding the impossibility to have a team on foreign soil within a few days. In respect of certain countries applications may be made on arrival at the airport but ensure that you obtain correct information regarding this possibility! An application may take up to 10 days depending on which country is involved (This will sometimes lead to the loss of an opportunity.) Process is further exacerbated by requirement for invitation letter from a contact in the foreign country without which application cannot be lodged. Deloitte6
© 2010 Deloitte Touche Tohmatsu Limited. Logistics Visa Requirements (continued): The scenario becomes even more difficult when team members must visit various countries where visas are required bearing in mind that ones passport must be handed in when application is made and must be at hand when travelling. Possible solution is to arrange all in advance which may be impossible as result of time constraints. Some embassies have an emergency procedure at an additional fee (this is not a bribe!) which is very handy. It is sometimes possible to structure the work such that in-country work is performed where after the team returns to SA to continue work which can be done locally. New applications for other visas are processed in the interim. If repeated visits to another country are required apply for a multiple entry visa covering several months. Deloitte7
© 2010 Deloitte Touche Tohmatsu Limited. Logistics. Flights: Very limited flights to and from some African countries. Often available flights are fully booked.. This may impact on the timeline and cost as the work may be finished in a shorter period but the team may be forced to wait for the next outgoing flight. Such a situation should be brought to the clients attention to avoid later disputes. It is sometimes cheaper to fly via Europe to a country in Africa as there are generally more flights to and from certain European airports than in respect of SA (It means getting to your destination in a very roundabout way but you may see more of the world!) Arrange meet and greet services when travelling to certain countries as public transport may be non-existent, or very poor, and/or very unsafe especially bearing in mind that some flights arrive in e.g. Lagos at approximately midnight. Deloitte8
© 2010 Deloitte Touche Tohmatsu Limited. Logistics Hotels (or other accommodation): Ensure that your accommodation is in close proximity to the offices of the client to reduce the time spent travelling to and from the place of work (a two kilometre trip can sometimes take up to two hours!) with random roadblocks by militants who demand substantial bribes before you are allowed to proceed. Arrange for the meet and greet services to transport the team to and from the hotel or any other place of interest at all times. Be wary of cheap or very reasonable hotels as they may be very dirty and dangerous. Clients are generally capable of recommending proper hotels, aware of the cost involved in staying there and accordingly not prone to complain about the expenses in this regard. Deloitte9
© 2010 Deloitte Touche Tohmatsu Limited. Logistics Medical insurance: Ensure that every team member is comprehensively covered against accidents/ injuries which may require extensive treatment or hospitalisation which is prohibitively expensive and funds may be limited. It is wise to ensure that every team has a medical emergency kit containing basic medicines such as pain killers, plasters and Emodium (for those stomach bugs). Deloitte10
© 2010 Deloitte Touche Tohmatsu Limited. Logistics Equipment : Enquire with the client whether the necessary equipment such as copiers and scanners will be available and accessible at the place of work. It may be necessary to take this equipment with you from SA. Be aware that this in turn may create issues on arrival/departure regarding taxes and customs duties. Take care that you have the right electrical adapters for use with SA equipment prior to departure from SA – may not be readily available Be mindful of the fact that in some African countries the power supply may be extremely erratic and that there may be intermittent outages which can cause havoc whilst you are imaging computers! Deloitte11
© 2010 Deloitte Touche Tohmatsu Limited. Logistics Currency: Make sure that the team has adequate funds in the appropriate currency and that team members are conversant with the exchange rates. Your travel agent should be able to advise in this regard. Be mindful of the fact that credit cards are not accepted everywhere and where accepted, the risk of fraud may be great. Deloitte12
© 2010 Deloitte Touche Tohmatsu Limited. Performing the Assignment Nature of assignment : It goes without saying that the team members should be very well prepared and conversant with the legislation, legal principles and company policies applicable in respect of the work to be performed. Examples: the Foreign Corrupt Practices Act (FCPA), the regulations of the Office for Foreign Asset Control (OFAC), the UK Bribery Act, corruption, fraud, theft and money laundering. Be mindful of the differences in such legislation which may impact upon your work methodology e.g. the FCPA specifically provides for facilitation payments whereas the UK Bribery Act has no such exclusion. This may result in a different approach based on the nationality of the client. It should be noted that reporting obligations arise under certain circumstances in terms of the laws of many African countries and we should be able advise our clients appropriately. Deloitte13
© 2010 Deloitte Touche Tohmatsu Limited. Performing the Assignment Legislative examples: Definitions of Corruption are very similar in laws of: South AfricaThe Prevention and Combating of Corrupt Activities Act, 2004 NigeriaThe Corrupt Practices and Other Related Offences Act, 2000 LesothoThe Prevention of Corruption and Economic Offences Act, 1999 MalawiThe Corrupt Practices Act, 1995 Deloitte14
© 2010 Deloitte Touche Tohmatsu Limited. Performing the Assignment Reporting Obligations: South AfricaSection 34 NigeriaSection 23: -A public officer to whom gratification is promised, offered or given must report. -Any person from whom gratification is solicited must report. MalawiSection 36: -A public officer to whom gratification is corruptly given, promised or offered must report the matter to the police or the Bureau within 48 hours. KenyaThe Proceeds of Crime and Money laundering Act, No 9 of 2009 contains a reporting obligation in section 44 regarding a suspicious transaction which may constitute or be related to money laundering (Corruption may be such a linked predicate offence). Deloitte15
© 2010 Deloitte Touche Tohmatsu Limited. Performing the Assignment Statements and/ or Affidavits: Be mindful that legal systems differ and not all jurisdictions recognise the taking of sworn statements. Interview notes are sometimes adequate for our purposes and no formal statements are required. If a matter we have investigated is escalated to the law enforcement authorities the latter would be obliged to ensure that they obtain and present the evidence in the legally required format with a view to a prosecution or other legal proceedings. When questioning witnesses bear in mind that there may be company policies which have to be complied with and legal representation may be allowed Without legal powers very robust questioning may be out of place and lead to poor, if any, co-operation. Note that certain witnesses may object to interviews being recorded. Deloitte16
© 2010 Deloitte Touche Tohmatsu Limited. Performing the Assignment Data and Data Transfer: EU Directive 95/46/EC (hereinafter the Data Protection Directive) Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data requires Member States to restrict transfers of personal data to countries outside the European Economic Area (EEA) to situations where the third country concerned ensures an adequate level of protection for such data. Where this is not the case, the transfer may not take place. The purpose of this framework is to ensure that the level of protection of the fundamental right to the protection of personal data established by the Data Protection Directive is not undermined, given the ease with which personal data can be moved around on international networks. This rule is also aimed at ensuring that data subjects (persons whose personal data are processed) will continue to be protected when their personal data leaves EU/EEA territory. Deloitte17
© 2010 Deloitte Touche Tohmatsu Limited. Performing the Assignment Data and Data Transfer (continued): According to Article 25(1) of the Data Protection Directive, transfer of personal data may take place only if, without prejudice to compliance with the national provisions adopted pursuant to other provisions of this Directive, the third country in question ensures and adequate level of protection. No African country has yet been found to provide adequate protection as required by the Commission. The Data Protection Directive does however make provision for circumstances where personal data can be transferred by companies (within the EU or EEA) to third countries which do not ensure adequate protection. Deloitte18
© 2010 Deloitte Touche Tohmatsu Limited. Performing the Assignment Deloitte19 Data and Data Transfer (continued): These circumstances are briefly summarised as follows: The national data protection authority of the Member State has authorised the transfer on the basis that the company had adduced certain safeguards. The company has concluded a contract with a data importer using one of three sets of EU approved standard contractual clauses. A multinational corporation has adopted binding corporate rules for transfers of personal data between companies belonging to the same multinational corporation which have been approved by the relevant data protection authorities. One of the exceptional circumstances regarding the data subject, public interest and legal claims (see Article 26 (1) for list) is present.
© 2010 Deloitte Touche Tohmatsu Limited. Performing the Assignment South Africa: Protection of Personal Information Bill – Transborder Information flows South Africas attempt to fall in line with international norms and standards for the collection and handling of personal information comes in the form of The Protection of Personal Information Bill 2009. Not yet in force. Broad application: In terms Chapter 2, the Bill has a broad application and applies to the processing (which includes collection, storage, dissemination etc.) of personal information entered in a record by or for a responsible party which is defined as a public or private entity or any other person who, alone or in conjunction with others, determines the purpose of and means for processing personal information. The Bill will even apply if the responsible party is not domiciled in South Africa - so long as locally situated automated or non-automated means are used (section 3). Deloitte20
© 2010 Deloitte Touche Tohmatsu Limited. Performing the Assignment South Africa: (continued): It provides that a responsible party in South Africa may transfer personal information about a data subject to someone who is in a foreign country only if: the recipient of the information is subject to a law, binding scheme or contract which effectively upholds the fair handling of the information that is substantially similar to the information protection principles contained in the Bill; or the data subject consents to the transfer; or the transfer is necessary for the performance of a contract between the individual and the organization, or for the implementation of pre-contractual measures taken in response to the data subject's request; or the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the individual between the organization and a third party; or all of the following apply: the transfer is for the benefit of the individual; it is reasonably impracticable to obtain the consent of the data subject to that transfer; if it were reasonably practicable to obtain such consent, the individual would be likely to give it. Deloitte21
© 2010 Deloitte Touche Tohmatsu Limited. Conclusion This presentation does not profess to be an exhaustive discussion on cross border investigations and all possible problems or legal issues which may be encountered, but is rather an attempt to provide some practical guidance. What does appear to be a universal truth which can be stated categorically is that: One of the greatest failings of todays executives is their inability to do what they are supposed to do. (With apology to Malcolm Kent) We will therefore always have forensic work! BON VOYAGE! Deloitte22
© 2010 Deloitte Touche Tohmatsu Limited. 23Deloitte
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