Companies caught in the eye of the sanctions enforcement storm can only begin to effectively weather it by conducting a thorough internal investigation. These investigations are multifaceted (see our other blog posts in this series here), but an essential component is often conducting interviews.
Interviews are a fundamental part of cross-border sanctions investigations that combine practical and legal challenges. Organizing them effectively requires an appreciation of practices in different jurisdictions, including local laws, customs, and languages.
As part of any good interview and broader investigation process, the Global Sanctions Investigations Group identifies and addresses early on key considerations in the jurisdictions in which the interviews take place. In this blog post, we outline the key cross-border interview considerations to keep in mind in this context.
Jurisdiction-Specific Considerations for Interviews
Jurisdictional differences in legal and regulatory requirements are often a key challenge in investigations. These can affect the preparation for and conduct of interviews in various ways. Important issues to consider include who can conduct an interview, how an interview can be conducted, what to do with the interview output – including interview notes – and next steps based on identified information.
This is particularly true when investigating potential sanctions violations. We are seeing an increasing overlap – but at times also a divergence – of sanctions regimes, particularly with respect to sanctions against Russia and Iran. Sanctions investigations therefore require a nuanced understanding of the applicable and often multi-faceted sanctions laws. Below we highlight some of the key aspects to consider in the European Union, Germany, United States, and United Kingdom.
European Union
EU data protection laws may restrict how and whether relevant data can be accessed. Under the General Data Protection Regulation, data transfers outside the European Economic Area are restricted unless the individual rights of the data subjects are protected. Transfers of protected data are unlawful without the consent of the data subjects or a legitimate interest.
Data protection rules may also apply to the sharing of interview notes or associated findings with investigating authorities. It may be necessary to an the employee about plans to share information with authorities to comply with data protection law.
Germany
In addition to the EU issues above, interviews conducted in Germany need to consider the rights of the works council. A works council may have a right of co-determination – i.e. a right to be involved in interviews/investigation and approval of certain investigation and interview methods. In principle, a right to co-determination is not triggered for employee interviews related to a compliance violation.
However, a works council may have a right of co-determination if questioning concerns a group of employees and/or touches upon the rights and concerns of multiple employees. This may arise if questionnaires are addressed to a group of employees and inquire about their personal circumstances and knowledge. Moreover, screening large amounts of personal data to prepare for interviews can require the approval by the works council. Even if no right of co-determination exists, the works council may have to be informed, at a high level, of ongoing internal investigations and/or internal IT systems (e.g., email systems) are accessed.
Moreover, when individuals are under investigation for violations of criminal law (which can be the case for certain sanctions violations), German law affords them an array of protections. Accordingly, interviewers should keep in mind such due process guarantees, including with respect to cross-border interviews where German sanctions are implicated.
United States and United Kingdom
In the United States, an Upjohn warning – wherein the lawyer informs the interviewee that the lawyer represents only the company and their communications are privileged (with the company controlling that privilege) – is a key best practice and should be done prior to commencing an interview. In addition, we sometimes note as part of the Upjohn warning that the company may (at its discretion) disclose the interviewee’s information and statements to third parties, such as a government agency.
In the context of interviews, the Global Sanctions Investigation Group assesses how privilege operates in the jurisdictions in which the interviewee will happen. Privilege can function in different ways in non-US jurisdictions – meaning that procedures around providing an Upjohn warning may need to be adjusted.
It is not always necessary to provide an Upjohn warning at the beginning of an interview in the UK (for example if the interview notes will not be protected by legal privilege under English law). That said, it is still considered best practice to do so, particularly if the investigation is cross-border and has a US element.
Cultural Considerations
In addition to legal requirements, we often find that successful cross-border interviews should take into account cultural norms and language barriers. Broadly speaking, cultural customs may require the interviewer to conform to cultural norms, meaning that interpretation of non-verbal employee behavior for example, should be modulated accordingly. Having members in so many Baker McKenzie offices around the world permits the Global Sanctions Investigation Group to have such on-the-ground knowledge readily accessible.
Language barriers can be an obstacle when conducting cross-border interviews. Not surprisingly, interviews conducted in the interviewee’s native language may prove more fruitful in terms of information gathered. Even if an interviewee agrees to be interviewed in English, having a native speaker in the interview room with the interviewee can be key to facilitate communications, particularly if an interviewee decides to switch to their native language at any point.
With presence and experience in sanctions investigations and related interviews in key jurisdictions around the world, our Global Sanctions Investigation Group is well positioned to help clients navigate these complex and multifaceted cross-border issues to ensure a thorough and effective investigation is conducted.
View all posts in the “Navigating the Impending Global Sanctions Enforcement Storm” series.
