Corporate Investigations 2020
A practical cross-border insight into corporate investigations

Fourth Edition

Featuring contributions from:
Allen & Gledhill

Gilbert + Tobin

Norton Rose Fulbright South Africa Inc

Bär & Karrer Ltd

Guidehouse

Nyman Gibson Miralis

Beccar Varela

Hammarskiöld & Co

Pinheiro Neto Advogados

Blake, Cassels & Graydon LLP

Iwata Godo

Rahman Ravelli

Bloomfield Law PracticeKammeradvokaten/Poul Schmith

Sołtysiński Kawecki & Szlęzak

Borenius Attorneys Ltd

LC Lawyers LLPŠunjkaLaw

Byrne and Partners LLP

Lydian

Wikborg Rein

De Roos & Pen

Morais Leitão, Galvão Teles, Soares da Silva &Associados

Wolf Theiss

Debevoise & Plimpton LLP
Dechert LLP

Morgan, Lewis & Bockius LLPESENYEL & PARTNERS Lawyers andConsultants

Norton Rose Fulbright LLP

MZM Legal

ISBN 978-1-83918-018-7
ISSN 2398-5623
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Corporate Investigations 2020
Fourth Edition

Group Publisher
Rory Smith
Associate Publisher
Jon Martin
Senior Editors
Caroline Oakley
Rachel Williams
Sub Editor
Anjalee Patel

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Dechert LLP

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Table of Contents

Expert Chapters
1

8France’s CJIP Guidelines Leave Little Doubt That France Will
be an Active Player in Global Anti-Corruption Enforcement
Roger A. Burlingame, Laurent Martinet, Jacques Sivignon & Karen Coppens, Dechert LLP
Bribery and Corruption: Investigations and Negotiations
Across Jurisdictions
Aziz Rahman, Rahman Ravelli

15

How Can Artificial Intelligence Augment the Investigative Process?
Tim Mueller & James Siswick, Guidehouse

21

Asia Pacific Overview
Phillip Gibson, Dennis Miralis & Rachel Le Bransky, Nyman Gibson Miralis

Q&A Chapters
28

Argentina
Beccar Varela: Maximiliano D’Auro & Rodrigo Allende

121

Japan
Iwata Godo: Akira Matsuda & Minako Ikeda

35

Australia
Gilbert + Tobin: Elizabeth Avery & Richard Harris

128

Netherlands
De Roos & Pen: Niels van der Laan & Jantien Dekkers

44

Belgium
Lydian: Jan Hofkens & Yves Lenders

134

BrazilPinheiro Neto Advogados: José Alexandre Buaiz Neto
& Ana Victória Linhares Rezende

139

NorwayWikborg Rein: Elisabeth Roscher & Geir Sviggum

146

PolandSołtysiński Kawecki & Szlęzak: Tomasz Konopka

51

58

65

71
77

84
91

97

103

108

114

CanadaBlake, Cassels & Graydon LLP: Iris Fischer &Liam Kelley
China
LC Lawyers LLP: Kareena Teh, Philip Kwok &Catherine Wong

152

Nigeria
Bloomfield Law Practice: Adekunle Obebe &Solomon OshinubiPortugalMorais Leitão, Galvão Teles, Soares da Silva &Associados: Tiago Félix da Costa, João Matos Viana& Frederico Machado Simões

Czech Republic
Wolf Theiss: Jitka Logesová & Jaromír Pumr

158

SerbiaŠunjkaLaw: Tomislav Šunjka

Denmark
Kammeradvokaten/Poul Schmith: Tormod Tingstad& Martin Sønnersgaard

165

Singapore
Allen & Gledhill: Jason Chan & Lee Bik Wei

England & Wales
Byrne and Partners LLP: Emma Brooks

170

Finland
Borenius Attorneys Ltd: Markus Kokko &Vilma Haavisto

178

FranceNorton Rose Fulbright LLP: Christian Dargham &Caroline Saint Olive184

Germany
Debevoise & Plimpton LLP: Dr. Thomas Schürrle &Dr. Friedrich Popp

192

Hong Kong
LC Lawyers LLP: Kareena Teh, Alex Mok &Catherine Wong

197

India
MZM Legal: Zulfiquar Memon, Parvez Memon &Chirag Naik

204

South Africa
Norton Rose Fulbright South Africa Inc:
Andrew Keightley-Smith & Sabeeha Kathrada-Khan
SwedenHammarskiöld & Co: Sandra Kaznova &Nina Sna Karaman
Switzerland
Bär & Karrer Ltd.: Andreas D. Länzlinger &Sarah Mahmud
TurkeyESENYEL & PARTNERS Lawyers and Consultants:
Selcuk Esenyel
United Arab Emirates
Morgan, Lewis & Bockius LLP: Rebecca Kelly &Chris Warren-Smith
USA
Dechert LLP: Jeffrey A. Brown &Roger A. Burlingame

Chapter 19

Japan

Japan
Akira Matsuda

Iwata Godo

12 The Decision to Conduct an Internal
Investigation
1.1 What statutory or regulatory obligations should
an entity consider when deciding whether to conduct aninternal investigation in your jurisdiction? Are there any
consequences for failing to comply with these statutory
or regulatory regulations? Are there any regulatory or
legal benefits for conducting an investigation?

There are no specific statutory or regulatory obligations to
conduct an internal investigation under Japanese law even when
there is suspicion of wrongdoing, except for certain consumer
product matters, where reporting to relevant ministers is
required in case of recall or serious accident when the relevant
minister in Japan orders the entity to do so.
Accordingly, the decision to commence an internal investigation is entirely at the discretion of the company. In reality,
however, many companies decide to conduct internal investigations when they discover potential breaches so that they canassess their exposure ahead of formal investigations by theregulators and ensure that directors and senior management
discharge their duties to the company. Entities generally
conduct a preliminary internal investigation as soon as they
become aware of the possibility of past or ongoing misconduct
to assess its seriousness and the impact on their business in orderto decide whether to conduct a full-scale investigation as thenext step. It is standard practice in Japan to involve outside
counsel in both the preliminary internal investigation and thefull-scale investigation.
A director’s duty of care to the company could force senior
management to decide to commence internal investigations.
Under the Companies Act of Japan (Act No. 86 of July 26,2005), a director owes a duty of care to the company and if a
director fails to conduct an investigation despite being aware of
the possibility of misconduct, such a director may be found to
be in breach of his duty to mitigate losses or damage sufferedby the company. Further, industry-specific statutes or regulations may indirectly compel an entity to conduct investigations.
For example, when an entity learns about issues relating to theefficacy or safety of its pharmaceuticals or medical devices, it
is obliged to report the issue to the authorities and, in order toobserve such obligation, an investigation, even preliminary,must be conducted beforehand.

121

Minako Ikeda

Some self-regulatory organisations such as the Japan Exchange
Regulation have established their own guidelines setting forth
obligations to make efforts to conduct investigations in case alisted company becomes aware of misconduct.
One example of legal benefit of conducting an internal investigation is that a company (cartelist or bid rigger) may decide toapply for leniency in cartel cases under the Antimonopoly Act(Act No. 54 of April 14, 1947) and reach out to the Japan Fair
Trade Commission ( JFTC). As a result of a successful leniency
application, administrative fines (surcharges) can be exemptedor reduced depending on the applicant’s ranking. Accordingly,
when an entity detects possible cartel conduct, it is critical toconduct an internal investigation without delay to gather sufficient information to assess and determine the possibility or the
benefit of a leniency application. In some cases (first applicant),
criminal prosecution can be avoided in this context. Anotherexample of legal upside is the reduced penalty in misleading
representation cases granted to entities which voluntarily reporttheir misconduct under the Act against Unjustifiable Premiums
and Misleading Representations (Act No. 134 of 1962).
1.2 How should an entity assess the credibility of awhistleblower’s complaint and determine whether aninternal investigation is necessary? Are there any legal
implications for dealing with whistleblowers?

It is common for entities to become aware of possible corporate
misconduct through whistleblowing. Once an entity receives awhistleblower’s complaint, it should carefully consider the information reported by the whistleblower and conduct a preliminary
investigation to assess the credibility of the complaint, unless it
is clearly groundless.
The Whistleblower Protection Act of 2004 (WPA) protects
those who expose corporate or government misconduct from
unfair treatment and retribution (for example, dismissal,
demotions or salary cuts). Under the WPA, a “public interest
disclosure” involves the disclosure of the Relevant Disclosure
Information (as defined below) by a worker to his employer, agovernment agency or official having jurisdiction, or any otherperson, to prevent a matter from occurring or worsening.
Disclosures cannot be made for illegitimate purposes.
“Relevant Disclosure Information” means information regarding
criminal conduct or statutory violations relating to the protection of consumer interests, the environment, fair competition
and generally the life, body and property of the public.

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1.3 How does outside counsel determine who “theclient” is for the purposes of conducting an internal
investigation and reporting findings (e.g. the Legal
Department, the Chief Compliance Officer, the Board of
Directors, the Audit Committee, a special committee,etc.)? What steps must outside counsel take to ensurethat the reporting relationship is free of any internal
conflicts? When is it appropriate to exclude an in-houseattorney, senior executive, or major shareholder who
might have an interest in influencing the direction of theinvestigation?

violation may enter into an agreement with the prosecutor underwhich the accused agrees to cooperate through the provisionof evidence or testimonies that can help convict a third party(enterprise or individual) and in exchange the prosecutor agrees
to drop or reduce criminal charges.

When conducting an internal investigation, the identity of “theclient” will depend on many factors such as the nature of thesuspected misconduct, the person or the department within theentity suspected of being involved in the misconduct and who or
whose body/department has commenced the investigation. The
board of directors or board of corporate auditors often become
the client. When a member of the board of directors is the targetof an investigation, the client may be the director in charge oflegal and/or the compliance department.
In order to avoid internal conflicts and ensure due process
and the fairness and credibility of the internal investigation, theperson or department suspected of being involved in the misconduct is typically excluded from internal reporting lines when aninternal investigation is conducted. To achieve complete independence from internal reporting lines, outside counsel may
recommend setting up a Third-Party Committee (see question 4.1 below). This has been a trend in Japan in recent years
for companies and other organisations to set up Third-Party
Committees in cases of serious misconduct in order to ensure
the fairness and impartiality of investigations.

As disclosing the results of internally conducted investigations
is not a legal obligation, the timing will depend on the facts ofthe case.
Where the authority has already commenced an investigation and the target entity reasonably believes that there are
no grounds for alleging or suspecting any misconduct or theauthority is mistaken in making allegations, the entity should
consider voluntarily notifying the authority and submitting
supporting evidence at an early stage. It will become difficult
for the authority to change the direction of the investigation
once it has spent some time on it or overturn any decisions it
has already made.
In certain cases, the entity should disclose the results ofan internal investigation to the authority before the authority
commences its investigation to enjoy the benefit of making a
voluntary disclosure. For example, in misleading representation cases, in order for the entity to be eligible to a reductionin penalty, it must report to the CAA misconduct punishedby the Act against Unjustifiable Premiums and Misleading
Representations (Act No. 134 of 1962) before the entity
becomes aware of the investigation commenced by the CAA.
In any case, it is advisable to consult with outside counsel
before making any disclosure to a regulatory authority, as
disclosure could lead to documents shared with them being
subject to document production requests by the other party inJapanese litigation, or a loss of client-attorney privilege where it
can be protected (in countries such as the US (please see questions 5.1 and 5.5 below)).

22 Self-Disclosure to Enforcement
Authorities
2.1 When considering whether to impose civil or
criminal penalties, do law enforcement authorities inyour jurisdiction consider an entity’s willingness tovoluntarily disclose the results of a properly conductedinternal investigation? What factors do they consider?

In general, enforcement authorities such as the JFTC (especially in the context of the new leniency rules and administrative surcharges policy to be implemented in 2020), Consumer
Affairs Agency (CAA), Financial Services Agency (FSA),
Securities and Exchange Surveillance Commission (SESC),
Personal Information Protection Committee (PPC), and Public
Prosecutors Office (PPO) take into account the willingness ofthe entities involved to cooperate as a mitigating factor when
considering whether to impose penalties and the severity of thepenalties. Therefore, the voluntary disclosure of the results ofan internal investigation to the enforcement authorities is generally considered as a positive step and a mitigating factor.
Even if the results of a duly conducted internal investigation disclosed by the entity to the enforcement authority showthat there is no misconduct, this would still be considered afavourable point by the enforcement authority. Even if evidence
supporting the existence of misconduct is found in the courseof the internal investigation, it is generally advisable to disclosesuch evidence to the enforcement authorities to prove one’s
willingness to come clean.
Furthermore, Japan has introduced a judicial dealing system(Shiho Torihiki Seido) for certain crimes including white-collar
crimes (similar to the US plea bargaining system) in 2018.
Under this system, an enterprise or individual accused of a

2.2 When, during an internal investigation, should adisclosure be made to enforcement authorities? What
are the steps that should be followed for making a
disclosure?

2.3 How, and in what format, should the findings of aninternal investigation be reported? Must the findings ofan internal investigation be reported in writing? Whatrisks, if any, arise from providing reports in writing?

The findings do not have to be presented to the authorities
in writing, however the authorities may request the entity toreport the findings in writing. Further, written form may be
the most suitable way depending on the nature of the findings.
Sometimes the format is prescribed by the regulator (e.g., forleniency applications to be made with the JFTC).
One of the risks of providing reports in writing to theenforcement authority voluntarily is that the entity may beforced to submit it as evidence in litigation. Under Japaneselaw, a party in a litigation may petition to the court to issue anorder against the other party or a third-party to submit documents in its possession when the other party refuses to voluntarily provide such documents as evidence or a third-party
refuses to cooperate. This is a limited process subject to stringent conditions that has not much to do with discovery in the
US. One of the important exceptions applies to documents
prepared exclusively for the use of the person in possession
thereof (an “own-use document”) (Article 220 (iv)(d) of theCode of Civil Procedure (Act No. 109 of 1996)). In July 2019,
although this was still a lower court decision, the Osaka HighCorporate Investigations 2020

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Iwata Godo

Court ruled that an internal investigation report in general did
not qualify as an “own-use” document if such a report wasshared with the enforcement authorities on a voluntary basis.

32 Cooperation with Law Enforcement
Authorities
3.1 If an entity is aware that it is the subject ortarget of a government investigation, is it required toliaise with local authorities before starting an internal
investigation? Should it liaise with local authorities even
if it is not required to do so?

There is no legal obligation to liaise with the authorities before
starting an internal investigation. The timing is left to thediscretion of the entity.
However, in certain cases, the entity should liaise with theauthorities, not necessarily before starting the internal investigation but in the course of the investigation, to move the internal
investigation in the right direction. Where an entity learnsof possible misconduct through the launching of a government investigation, the entity does not always have knowledgeof the specific allegations or the detail of the suspected violation. Therefore, the target entity should contact and try to holdregular meetings with the authorities to find out what the allegations or suspected breaches are in order to properly conduct
its internal investigation and collect appropriate evidence tosupport its position regardless of whether it will be denying or
admitting any allegation or suspicion of wrongdoing.
It is also advisable to contact the enforcement authorities as
they take into account the entity’s willingness to cooperate as a
mitigating factor when deciding whether to impose penalty or ifthey do, at what level.
3.2 If regulatory or law enforcement authorities
are investigating an entity’s conduct, does the entity
have the ability to help define or limit the scope of agovernment investigation? If so, how is it best achieved?

While there is no formal system under which the target entity
may request the authorities to limit the scope of the investigation, in practice, the target entity may do so by close cooperation with the authorities and outside counsel. For example, the
JFTC may open an investigation into a case of abuse of superior bargaining position based on reports by businesses that
allege they are being subject to abuse, however, the JFTC itself
may not be clear which specific actions of the target entity
may be deemed an abuse at an early stage of the investigation. Therefore, through proper explanations and the supply
of appropriate materials to help the JFTC to accurately understand its business, the target entity may influence the JFTC’s
next steps in limiting the scope of the investigation andcircumscribing the allegations and their legal qualification.
3.3 Do law enforcement authorities in your jurisdiction
tend to coordinate with authorities in other jurisdictions?
What strategies can entities adopt if they face
investigations in multiple jurisdictions?

Cases of coordination have increased over the years.
The JFTC has entered into international co-operationagreements on the enforcement of competition laws with the
US, EU and Canada. The JFTC is actively cooperating withcompetition authorities in several jurisdictions. Memoranda
on competition have been made with many countries and thepartnership agreements to which Japan is a party include competition-related provisions (Chapter 16 of the Comprehensive
and Progressive Agreement for Trans-Pacific Partnership andChapter 11 of the Agreement between The European Union andJapan for an Economic Partnership). Under Article 43-2 of the
Antimonopoly Act, the JFTC can exchange information withforeign competition authorities for the enforcement of their own
antitrust laws under strict conditions and provided the exchange
of information does not interfere with the implementation of the
Act or conflict with the interests of Japan. For criminal procedures, the Act on International Assistance in Investigations andOther Related Matters of 1980 serves as a basis for cooperation
between the Minister of Justice and its foreign counterparts.
It is prudent to presume that the local enforcement authorities
may at one point, during their investigation, get hold of information in the possession of foreign authorities and therefore entities that conduct business in multiple jurisdictions should pay
attention to the consistency of their position generally regarding
suspected breaches and of their position with the information
they provide to authorities in several jurisdictions.

42

The Investigation Process

4.1 What steps should typically be included in an
investigation plan?

Typical steps an entity should take once it becomes aware ofactual or suspected misconduct are: (i) conduct a preliminary
investigation in order to assess the risks and elaborate an overallplan to deal with the misconduct; (ii) determine whether to
conduct the investigation internally or to set up a Third-Party
Committee; (iii) preserve, collect and assess relevant documents,
e-mails and other data (both hard and soft copies) and interview
relevant persons such as employees and directors; and (iv) (if theexistence of misconduct is confirmed) analyse the causes of the
misconduct, consider preventive measures and implement suchmeasures.
A Third-Party Committee is an independent and neutral bodyconsisting of external experts with no conflict of interest withthe entity generally tasked by the entity to investigate, analyse
the causes of misconduct and propose preventive measures orremedies. Companies in Japan generally sets up a Committee
in cases where the misconduct involves directors and senior
management, or where the misconduct is of such magnitude
that it will have repercussions in the public. This step is needed
to ensure transparency and accountability towards stakeholders
and avoid reputational and credibility risks.
If the entity decides to set up a Third-Party Committee, theassessment of documents and interview of employees/directors(see (iii) above) are conducted by the Committee. For step (iv)above, the Committee will prepare a report in which it analyses the causes of misconduct and recommends preventive
measures. This report may be addressed to the entity itself or
the board of directors or statutory auditors, depending on which
body is heading the investigation and has decided to set up theCommittee.
In addition to the Third-Party Committee, in case theassessment of directors’ or statutory auditor’s civil liability isrequired, it is standard practice in Japan to set up a Liability
Investigation Committee consisting of independent outside
counsel/attorneys with no conflict of interest either with theentity, the target of the investigation, or the board of directors and/or the board of statutory auditors. The Committee
will report the results of the investigation to either the boardof directors (when statutory auditors’ liability is at stake) or the

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board of auditors (when directors’ liability is at stake) and theseresults are used as a basis for their decision on whether or not tocommence legal actions against directors or statutory auditors.
4.2 When should companies elicit the assistance ofoutside counsel or outside resources such as forensic
consultants? If outside counsel is used, what criteria
or credentials should one seek in retaining outside
counsel?

It is standard practice for companies in Japan to obtain assistance from outside counsel and set up an Internal Investigation
Committee or a Third-Party Committee when conducting
investigations in order to ensure adequate accountability andtransparency for the benefit of stakeholders. Under very limited
circumstances, where only a minor type of misconduct issuspected, investigations may be carried out internally, but suchcases are rare.
Consulting a forensic expert and IT consultant is alsofrequent depending on the volume of digital data that needs tobe reviewed for the investigation.

52 Confidentiality and Attorney-Client
Privileges
5.1 Does your jurisdiction recognise the attorneyclient, attorney work product, or any other legal
privileges in the context of internal investigations? Whatbest practices should be followed to preserve theseprivileges?

Attorney-client privilege and protection under the attorney
work-product doctrine are currently not recognised in Japan.
However, when an investigation is conducted globally, Japaneseentities should pay attention to the handling of information
which may be privileged when submitted in other jurisdictions.
For example, under US laws, if an entity waives the privilege bydisclosing certain attorney-client privileged communication, it
may be considered that it has also waived privilege to other information which relates to the same subject matter as the communication which has been disclosed. Therefore, it is crucial thatJapanese entities carefully examine which information is privileged or protected in foreign jurisdictions and take measures toprotect important information under the legal privileges.
For cartel investigations, the JFTC will establish new procedures for administrative investigations in order to addressconcerns regarding attorney-client privilege. Attorney-client
privilege will be protected in administrative investigations into
unreasonable restraint of trade prohibited under Article 3 of the
Antimonopoly Act (e.g. cartels), whereby confidential communications between an enterprise and its attorney that address legal
issues and satisfy certain conditions may not be accessed by theinvestigators and must be returned to the enterprise. The JFTC
will establish rules under Article 76 of the Act and Guidelines.
5.2 Do any privileges or rules of confidentiality apply
to interactions between the client and third parties
engaged by outside counsel during the investigation(e.g. an accounting firm engaged to perform transaction
testing or a document collection vendor)?

Communication between the client and third parties other thanattorneys are not privileged under Japanese law.

Although not a privilege strictly speaking, attorneys, doctors
and other professionals and experts to whom confidential information has been disclosed may refuse to testify and give evidence(Code of Civil Procedure, Article 197-1(2)) or refuse to submit
documents (Article 220) regarding facts that have come to theirknowledge in the performance of their duties. However, Art.
197-1(2) does not apply where the witness is released from his or
her professional duty of secrecy under Art. 197. The attorneys’
obligation to keep secret information obtained in confidence inthe course of their professional duties is also stated under Article
23 of the Lawyers’ Law (Law No. 205 of 10 June 1949).
5.3 Do legal privileges apply equally whether
in-house counsel or outside counsel direct the internal
investigation?

No legal privilege is recognised under Japanese law.
5.4 How can entities protect privileged documents
during an internal investigation conducted in yourjurisdiction?

As mentioned in question 5.1 above, it is important for entities that are subject to global or multijurisdictional investigations to be aware of legal privilege rules in force in each relevant foreign jurisdiction and take measures to protect privileged
information. Entities should advisably consult with counsel
to first understand the scope of the legal privileges, then markprivileged documents and data accordingly and store them separately from other documents or data.
5.5 Do enforcement agencies in your jurisdictions keep
the results of an internal investigation confidential if
such results were voluntarily provided by the entity?

While enforcement authorities are not legally obliged to keep
the results of internal investigations voluntarily submitted by
the entities, they may negotiate with the authorities and request
them not to disclose the results to third parties (except for the
JFTC in anti-trust investigations, where JFTC officials areunder a duty to keep confidential any confidential informationthat comes to their knowledge in the course of their duties underthe Antimonopoly Act (with certain exceptions)).
Generally speaking, entities should keep in mind that the
court may issue an order to submit documents to a third party(see question 2.3 above) as well as request a third party, upon
petition from a party, to voluntarily provide documents in its
possession for submission as evidence. Such third party may
also include enforcement authorities. Once submitted as
evidence in litigation, results of the internal investigation would
generally become available to the public.

62

Data Collection and Data Privacy Issues

6.1 What data protection laws or regulations apply tointernal investigations in your jurisdiction?

The Act on the Protection of Personal Information (the APPI)(Act No. 57 of 2003) is the principal Japanese data protection
legislation in the private sector. The PPC has adopted guidelines to ensure the proper and effective implementation of the
APPI by businesses. The PPC’s general guidelines supplement
the APPI and separate guidelines apply to specific sectors such as
Corporate Investigations 2020

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Iwata Godothe finance, medical and telecommunications sectors. These laws
and regulations apply to internal investigations as well.
6.2 Is it a common practice or a legal requirement
in your jurisdiction to prepare and issue a document
preservation notice to individuals who may havedocuments related to the issues under investigation?
Who should receive such a notice? What types of
documents or data should be preserved? How should
the investigation be described? How should compliancewith the preservation notice be recorded?

It is not a legal requirement to prepare and issue a document
preservation notice in Japan. However, as collection of objective evidence such as documents and data are important in
effectively conducting an investigation, an entity could issue
a notice to specific individuals or relevant departments orbodies within the entity to preserve documents and data relevant to the investigation.
6.3 What factors must an entity consider when
documents are located in multiple jurisdictions(e.g. bank secrecy laws, data privacy, procedural
requirements, etc.)?

An entity in Japan should check whether documents located inforeign jurisdictions include personal data as transfer of such
documents may be subject to cross-border transfer restrictions
under the data protection laws and regulations of those foreign
jurisdictions.
6.4 What types of documents are generally deemed
important to collect for an internal investigation by yourjurisdiction’s enforcement agencies?

While there are no guidelines, examples of types of documents
and data deemed important for an internal investigation are
documents requesting internal corporate approvals (R ingisho),meeting minutes, schedules, planners, memos, financial
records, invoices and receipts, contracts, internal policies andprocedures, internal audit reports, internal communication via
e-mail or chat, etc.
6.5 What resources are typically used to collectdocuments during an internal investigation, and which
resources are considered the most efficient?

Depending on the volume of digital data, the entities typicallyretain forensic experts and IT consultants to collect, extract andanalyse the relevant data from the entity’s server.
6.6 When reviewing documents, do judicial orenforcement authorities in your jurisdiction permit
the use of predictive coding techniques? What are
best practices for reviewing a voluminous document
collection in internal investigations?

There are no restrictions on the use of predictive coding
techniques.
Methods for effective review of voluminous data, for example
e-mail correspondence, will be to delete duplicated messages,
narrow-down by dates and sender/receiver of the messages anduse technology assisted review such as keyword search. AI-based

narrowing-down of data is not prevalent in Japanese practice yet.
It is important not to limit the scope excessively as preservationand collection of data is done at an early stage of the investigation when the scope and target of the investigation are often set
tentatively.

72

Witness Interviews

7.1 What local laws or regulations apply to interviewsof employees, former employees, or third parties? Whatauthorities, if any, do entities need to consult before
initiating witness interviews?

There are no laws or regulations that apply to interviews of
employees, former employees, or third parties in Japan. Further,
there is no legal obligation for the entity to consult with theauthorities before initiating witness interviews.
7.2 Are employees required to cooperate with theiremployer’s internal investigation? When and underwhat circumstances may they decline to participate in awitness interview?

In general, employees are required to cooperate with theiremployers’ internal investigation because even if such obligations
are not provided for in employment contracts or office work rules
and other regulations, employers may order their employees tocooperate as part of the exercise of their authority as employers.
However, employees may decline to cooperate with its employer’s
internal investigation when they have reasonable ground to do so.
7.3 Is an entity required to provide legal representation
to witnesses prior to interviews? If so, underwhat circumstances must an entity provide legal
representation for witnesses?

An entity is not legally required to provide legal representation
to witnesses.
7.4 What are best practices for conducting witness
interviews in your jurisdiction?

Interviews should be conducted subject to consent and theexistence and contents of such interviews should be kept confidential. Interviewers should be well prepared and briefed andhave sufficient background information on the alleged misconduct before conducting the interviews for more effective results.
Further, the interviews should ideally be conducted in the presence of an outside counsel to maintain the fairness of the procedure and the credibility of the results of the interview.
7.5 What cultural factors should interviewers be awareof when conducting interviews in your jurisdiction?

Interviewers should be polite and courteous and explain the
purpose of the interview to obtain full cooperation by the interviewees. It is important, when relevant, to clarify that the investigation conducted by the entity is not intended to pursue theemployees’ liability or penalise them, but that the purpose is toinvestigate the facts, analyse the causes of misconduct, and identify preventive measures.

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7.6 When interviewing a whistleblower, how canan entity protect the interests of the company while
upholding the rights of the whistleblower?

To avoid any witch hunt within the entity and discouraging
employees from using the whistleblowing system, the entity
should inform the interviewed whistleblower that his/her identity will remain confidential and that any information that
may lead to the identification of the whistleblower will not bereleased. However, such confidential information could be
disclosed in the litigation.
7.7 Can employees in your jurisdiction request toreview or revise statements they have made or are thestatements closed?

Employees may request to review or revise their statements. If
a revision is made, it should be reflected in the investigation
report.

82

Investigation Report

8.1 How should the investigation report be structured
and what topics should it address?

A typical report conducted by a Third-Party Committee will
cover the following topics: (i) purpose and background of theestablishment of the Committee; (ii) overview of the target(s)of the investigation; (iii) investigation process such as preservation and collection of documents, interviews, and digitalforensic investigations; (iv) facts of the case analysed and issues
determined as a result of the investigation; (v) assessment froma legal and/or a tax and accounting perspective; (vi) analysis of
the causes of misconduct; and (vii) proposal identifying preventive measures, remedies and legal action/complaints.
In some cases, the Committee produces a full version anda redacted version masking personal information and otherbusiness-related confidential information in the publicly available version of the report.

7.8 Does your jurisdiction require that enforcement
authorities or a witness’ legal representative be present
during witness interviews for internal investigations?

There are no such general requirements under Japanese law.
However, if the interviewee requests the presence of his/herlegal representative during the interview, the interviewer may
have to allow them to be present in order to secure the interviewee’s cooperation.

Corporate Investigations 2020
© Published and reproduced with kind permission by Global Legal Group Ltd, London

Iwata Godo

Akira Matsuda is an attorney-at-law (admitted in Japan and New York) and a partner at Iwata Godo heading the AI/TMT and Data Protection
practice group. He is based in Tokyo and Singapore. His practice focuses on cross-border transactions including mergers and acquisitions,as well as international disputes (litigation/arbitration), and advice on digital/TMT related matters. Mr. Matsuda regularly advises Japaneseand foreign clients on data security issues (Japanese laws, Singapore PDPA, and EU GDPR) including on the structuring of global compliancesystems. He also advises complicated cross-border corporate investigation matters.
He is a graduate of the University of Tokyo (LL.B.) and Columbia Law School (LL.M.).
Iwata Godo
Marunouchi Building 10F
2-4-1 Marunouchi
Chiyoda-ku, Tokyo
Japan

Tel:
Fax:
Email:
URL:+81 3 3214 6205
+81 3 3214 6209
amatsuda@iwatagodo.com
www.iwatagodo.com

Minako Ikeda is an associate at Iwata Godo specialising in general corporate and dispute resolution. She handles many cross-bordertransactional matters as well as national/cross-border disputes. She also has experience in corporate investigation and criminal defence.
Iwata Godo
Marunouchi Building 10F
2-4-1 Marunouchi
Chiyoda-ku, Tokyo
Japan

Tel:
Fax:
Email:
URL:

Iwata Godo was established in 1902 and is one of Japan’s premier law
firms. It is a full-service firm with about 70 attorneys. Iwata Godo assists
its corporate clients in upgrading their internal controls, risk management
policies and other corporate governance functions to prevent white-collar
crimes, including misuses of assets, insider trading or data protection
breaches. It advises its clients and their boards on effective governancestructures and compliance. The firm has many years of experience inadvising on shareholder and boardroom disputes. It represents clients ininvestigations by regulators and prosecutors on regulatory and accounting
issues, shareholder claims, directors’ liabilities, and other complex situations. A number of the firm’s attorneys have spent time with the regulators,
others have practised as judges or prosecutors. As a result, Iwata Godocan efficiently assist its clients in conducting, or responding to, investigations and the firm has been involved in many high-profile cases.
www.iwatagodo.com

Corporate Investigations 2020
© Published and reproduced with kind permission by Global Legal Group Ltd, London+81 3 3214 6205
+81 3 3214 6209
minako.ikeda@iwatagodo.com
www.iwatagodo.com

127

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