You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

February 17, 2017

Conducting a Corporate Internal Investigation

Bangkok Post, Corporate Counsellor Column

Illegal or unethical conduct can occur in any workplace, whether by employees or management.

Employees might steal money or trade secrets. Management may allow a bribe to be paid to secure a lucrative contract or use accounting trickery to make finances appear more attractive. There are countless ways that a company and its staff can commit misdeeds.

If an organization suspects that something is amiss, one of the first steps it should take is to investigate to determine the facts. Based on these facts, management can decide how to respond.

The investigation may exonerate an employee, or it may reveal a deep-rooted problem within the company that requires immediate attention and action. Investigations can also excise any wrongful conduct from the company, allowing it to weed out the bad apples, promote good organizational culture, limit legal liabilities, and protect the company’s reputation.

Another benefit of conducting an internal investigation is to help the company prepare for any potential governmental action. An organization would be far better equipped to deal with inquiring regulators if the truth of the matter is already known. It’s better for a company to find out something damaging first, instead of being told by a government regulator. In most cases, the company will be able to prevent or reduce its exposure.

The main drawback to investigations is that they are time-consuming and often expensive. A company considering an investigation may be under significant time constraints or lack necessary expertise. To help ease the resource burden, a company should begin each investigation with a carefully drafted plan.

When preparing the plan, a key issue to consider is the nature of the wrongdoing. The more serious the offense, the more extensive the investigation. Stealing a coworker’s lunch from the refrigerator should not warrant a full investigation. But something more onerous—such as bribery or fraud—almost always warrants a full investigation.

Another important planning issue is the investigation’s scope. Will the investigation look to turn over every rock from the last decade? Or will the scope be narrow, extending only to a particular action by a specific employee?

The investigation’s scope will also depend on the wrongdoing. For bribery and fraud cases that may have occurred over longer periods of time, the scope would be more extensive than one-off instances of employee misconduct. In many cases, an investigation’s scope may naturally widen as the search for facts proceeds.

Companies must also consider who will be assigned as the investigator. Ideally, the investigator should be viewed as someone who is independent and impartial; certainly, he or she should not be someone who reports to the person being investigated.

External counsel can be a good choice, especially in cases involving legal violations. External parties can examine a company objectively and will not be hampered by internal politics.  Outside lawyers usually work in tandem with a company’s in-house counsel to gain insights on the organization’s operations for an investigation.

Another critical aspect to planning the investigation is identifying the witnesses to be interviewed and gathering relevant evidence. This aspect is an ongoing process. As more facts are uncovered, more witness names often appear. Investigators will have to meticulously compile and study all forms of evidence.

The investigator should carefully document each step of the investigation process to create a permanent record of what is being discovered, how the information is being uncovered, and who is revealing what. The end result is compiled into a detailed written report, which can then be used as evidence to discipline an employee, build a legal case, make disclosures to shareholders, or address company systemic shortcomings, among other things.

A central component of the investigation is the witness interviews, which should be done after all relevant documents have been compiled and thoroughly reviewed. Without preparation, the interviews will be ineffective. Just as important as the interview is the written interview report. Often, memories are not reliable, so the reports serve as the written record of each interview. And when the interview reports are examined in conjunction with each other, the facts often become clearer.

Part of the art of witness interviews involves understanding cultural nuances. This is especially important in cross-border investigations, where an overseas parent company (or law firm) investigates conduct in a Thai subsidiary, for example. The foreign entity will likely not understand issues unique to Thailand, such as Thai labor and employment laws, privacy matters, and of course language. Understanding Thai culture and how to communicate and question employees will also yield much more effective interview results. For these reasons, it is always recommended that local experts assist foreign parties when conducting cross-border investigations.

Investigations are a critical component of how a company uncovers wrongdoing. They can not only help eliminate wrongful behavior, but also show employees that the organization takes misconduct seriously. What is more, with an investigation a company can show the public at large that it will resolutely and earnestly address allegations of misconduct. This can help the organization distance itself from the bad act. More importantly, investigations encourage a culture of transparency and accountability, which not only limits liability but is ultimately beneficial for a business’s long-term reputation and success.

RELATED INSIGHTS​ 

April 29, 2025
Tilleke & Gibbins recently assisted Bitmain, a leading manufacturer of cryptocurrency mining hardware, in successful cancellation action lawsuits against BITMAIN and ANTMINER trademarks that were unlawfully registered by a local party in Indonesia. Background Founded in 2013, Bitmain is a leading manufacturer of digital currency mining servers, marketed under their BITMAIN and ANTMINER brands. The company has maintained a strong global market share, with customers in over 100 countries and regions. In Indonesia, Bitmain has held the BITMAIN trademark registration in classes 35, 36, 41, and 42 since 2018. However, the company was unable to register the trademark in other classes because a local party had already registered the mark in the desired classes. Bitmain also discovered that their ANTMINER brand had been registered by the same local party, which impeded Bitmain’s application to register the ANTMINER trademark in Indonesia. Bitmain had been using these trademarks and products worldwide long before the local party’s registration in Indonesia, and had also secured trademark registrations in various countries. However, the local party exploited Indonesia’s first-to-file principle, securing the BITMAIN and ANTMINER trademarks before Bitmain could file. This was a classic example of trademark squatting, where a party registers a foreign trademark in a jurisdiction where the original owner has not yet filed, with the intent to profit from the brand’s success. Initial Approach Upon discovering that the local party had made these trademark applications, Bitmain found that one of these applications was still in the publication period. We advised and assisted Bitmain to file opposition against the application, but this opposition was subsequently refused because the local party had already obtained identical BITMAIN trademarks in other classes. Consequently, the application was registered in the Trademark Office database. Following the unfavorable opposition decision, we initially worked with Bitmain to seek a mutually
April 25, 2025
Vietnam is on the cusp of a major judicial reform with significant implications for intellectual property (IP) litigators. A draft law, expected to be passed in mid-2025, will restructure the court system into a three-tiered judicial hierarchy while retaining the current two-tiered trial structure. The reforms include the anticipated establishment of a specialized IP court and a reallocation of jurisdiction that may fundamentally change how and where IP disputes are resolved. From 63 to 34: Fewer Provinces, Fewer Courts – But Wider Reach Under the new model, the judiciary will be organized into three levels: (i) the Supreme People’s Court, with three newly established appellate courts in Hanoi, Da Nang, and Ho Chi Minh City, (ii) the 34 provincial-level People’s Courts (following a reduction from 63 provinces to 34 due to administrative consolidation), and (iii) a newly created tier of regional-level courts (tòa án khu vực) that will replace the existing district-level courts. Each regional court will encompass several district-level courts within a province. The number of regional courts in each province will be determined based on the number of districts following a planned reduction. While the number of provincial-level courts will decrease, the newly established regional-level courts will be granted expanded jurisdiction. Notably, these courts will have first-instance jurisdiction over a broad range of civil, commercial, and administrative matters. In criminal cases, they will handle offenses punishable by up to 20 years’ imprisonment, while more serious crimes will remain under the jurisdiction of provincial-level courts. For IP litigators, this likely means that first-instance cases, especially civil infringement disputes, will shift from the provincial level to the lower regional level. These regional courts will become the new battleground for IP enforcement. Same Two-Tier Adjudication, Different Game Board While the judicial structure is evolving, the core adjudicative framework remains unchanged:
April 3, 2025
Thailand has proposed amendments to the Anti-Money Laundering Act B.E. 2542 (1999) as the country steps up its efforts to combat economic crimes and corruption. One of the primary objectives of the amendments is to enhance the effectiveness of measures curbing the use of nominees to help foreign nationals operate restricted or prohibited businesses in violation of the law. If these proposed updates are implemented, they will substantially strengthen existing legislation related to the use of nominees and bribing government officials, including officials of foreign governments and international organizations. These offenses would be treated as predicate violations under the amended legislation. The draft amendments are currently open for a public comment period, which is set to conclude on April 25, 2025. Highlights of the proposed amendments are detailed below. Predicate Offenses The draft amendments propose adding the concept of a “predicate offense” covering the following: Bribery: Giving, offering, or promising to give assets or benefits to Thai or foreign public officials, or officials of international organizations. Acting as a nominee: Assisting, supporting, or engaging in the business operations of a foreign national who is not permitted to operate that business; jointly operating a business with a foreign national under the guise that it is solely owned by the Thai national; or holding shares on behalf of a foreign national in a partnership, limited company, or any other legal entity to help the foreign national conduct business without the permits required under the Foreign Business Act. Under the draft amendments, Thai individuals or juristic persons who have agreed to take any of these actions, as well as foreign nationals who allow such assistance in their business operations, will be liable for committing a predicate offense under the Anti-Money Laundering Act. The draft proposes a prescription period of 15 years from
April 3, 2025
On February 26, 2025, Thailand’s National Anti-Corruption Commission (NACC) issued a notification titled “Criteria for Individuals Living Together as Husband and Wife that Are Considered as De Facto Spouses (No. 2) B.E. 2568 (2025).” This new notification, published in the Government Gazette on March 7, 2025, took effect retroactively from January 22, 2025. Prior to this notification, the term “spouses” specifically included “individuals living together as husband and wife” without registering marriage, referring to similar language at the time in Thailand’s Civil and Commercial Code. However, it was unclear whether this term included same-sex and other nontraditional couples. After the Marriage Equality Act revised this language in the Civil and Commercial Code to only refer to “spouses” (with a gender-neutral Thai word), the NACC took the opportunity to issue a new notification that simply replaces any mention of “husband and wife” with “spouses,” thereby removing the ambiguity. As a result, this new notification covers same-sex de facto spouses of politicians and high-ranking officials. These spouses’ assets must now be declared together with the officials’ assets. Additionally, same-sex de facto spouses of state officials are prohibited from engaging in business with the Thai government that may present conflicts of interest. Importantly, the notification also impacts the interpretation of the Office of the Prime Minister’s (OPM) Regulation on the Giving or Receiving of Gifts by Public Officials B.E. 2565 (2022). In this regard, same-sex de facto spouses of government officials are now also prohibited from accepting gifts or other benefits related to official duties. This is because the OPM regulation references the NACC definitions when defining “family members” to include “de facto husband and wife.” Under the OPM regulation, public officials and their supervisors are strictly prohibited from permitting or condoning family members’ acceptance of gifts or other benefits related to