Our thinking

Strategies for protecting Taiwanese businesses from cross-border risks

What's inside

Current approaches for managing global growth

Executive summary

Managing efficient global growth requires Taiwanese corporate leaders to make a series of strategic decisions. Understanding key legal developments worldwide can help you plan your company's next steps.

For technology companies focused on cross-border growth and expansion, vital issues often include defending business innovations that you invested time and money to develop and avoiding problems with global regulatory authorities.

We have chosen topics for this publication to reflect key changes in multiple jurisdictions that offer new opportunities for Taiwanese businesses, along with updated guidance on how to manage potentially damaging legal issues.

Protecting your innovations has never been more important. Since the US market serves as a vital source of revenue for many Taiwanese businesses, this makes it critical to understand how the patent system is evolving in the United States. "A patent system at an inflection point: Start of a new era at the USPTO" reviews how changing rules may create stronger patent rights in the US and affect patent litigation strategies for Taiwanese companies. "Using US trade secret litigation to protect your business innovations" explains how the 2016 US Defend Trade Secrets Act and trade remedies at the US International Trade Commission can provide powerful remedies to help Taiwanese companies with business in the US protect their proprietary information.

As any company's business grows globally, inevitably the company becomes subject to regulatory oversight and litigation in a variety of countries for anti-corruption, antitrust and many other aspects of its business operations. "How to manage multijurisdictional compliance investigations" shows practical steps that Taiwanese businesses operating in a global context can take to conduct complex compliance investigations in multiple jurisdictions effectively. "Seeking amnesty internationally for cartel allegations" discusses whether, when and how Taiwanese corporations should request leniency from government prosecutors for potential antitrust violations and cartel conduct allegations. "European Commission fines for resale price maintenance in e-commerce" describes the risks for Taiwanese businesses when imposing fixed or minimum resale prices on distributors in Europe. Finally, "Trends in international arbitration for Taiwanese companies" highlights several results from a 2018 White & Case survey for Taiwanese companies interested in international arbitration as a dispute resolution mechanism.

We look forward to discussing these and other issues with you.

A patent system at an inflection point: Start of a new era at the USPTO

Changing rules may start moving the pendulum toward stronger patent rights and affect patent litigation strategies for Taiwanese companies

Woman usng Virtual Reality technology

Using US trade secret litigation to protect your business innovations

Powerful US remedies can help protect valuable proprietary information, even if your business is headquartered in Taiwan

transistor

How to manage multijurisdictional compliance investigations

Taiwanese businesses operating in a global context need strong mechanisms to investigate and manage potential cross-border misconduct

server room

Seeking amnesty internationally for cartel allegations

Whether, when and how Taiwanese corporations should request regulatory leniency for potential antitrust violations

Cryptocurrency Mining Machine

European Commission fines for resale price maintenance in e-commerce

The risks for Taiwanese businesses when imposing fixed or minimum resale prices on distributors

large distribution warehouse

Trends in international arbitration for Taiwanese companies

Highlights from White & Case's recent survey results

manufacturing equipment

How to manage multijurisdictional compliance investigations

Taiwanese businesses operating in a global context need strong mechanisms to investigate and manage potential cross-border misconduct

Insight
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4 min read

As a company's business grows globally, inevitably the company will become subject to regulators in different countries for anti-corruption, antitrust and many other aspects of its business.

This makes it vital for multinational companies operating in a global context to have a mechanism in place to investigate suspected cross-border misconduct. A credible internal investigation mechanism is not only an expectation from regulators and law enforcement agencies, but also recognized as a matter of good corporate governance. However, conducting complex compliance investigations in multiple jurisdictions can be challenging and difficult.

To manage multijurisdictional compliance investigations efficiently and effectively, here are a few practical steps that Taiwanese companies can take.

Engage with regulators at an early stage to manage their expectations and coordinate your approach to requests from authorities in different jurisdictions.

 

Establish standard investigative procedures

It is important for Taiwanese companies to establish a protocol for the conduct of any investigation and to ensure coordination among all parties involved.

Having standard procedures at the outset of any investigation will help. At a minimum, these investigation procedures should provide guidance on:

  • How to set up an investigation team for different types of investigations.  This includes determining when external advisors—such as outside legal counsel, forensic technology vendors and forensic accounting experts—should be engaged
  • Which internal functions need to be aligned.  Usually, internal functions that need to align include audit, finance, human resources, IT, media/PR and occasionally the relevant business teams
  • How to determine the level of authority to which the investigation team should report. Usually, investigation teams should provide their reports to the company's general counsel or chief compliance officer, who, in turn, may report on the investigation to other senior executives. However, if an investigation involves senior executives, the investigation team should report to the board of directors of a company or a special committee established by the board
  • How to delineate workstreams. Standard procedures should explain how to define workstreams by jurisdiction, regulator or issue—as appropriate—and make sure that each workstream feeds into the main investigation

 

Manage competing demands from different regulators and law enforcement agencies

If a multijurisdictional investigation is in response to requests from regulators and law enforcement agencies, it is important to understand and manage the expectations and competing demands from different authorities.

For example, in a US-style internal investigation, a US regulator would expect a company to have undertaken document preservation measures and to have interviewed relevant employees.

However, if the misconduct is in mainland China and under Chinese authorities' investigation, the authorities might consider these types of measures as possible obstruction of justice and interfering with mainland Chinese authorities' investigation. The UK Serious Fraud Office (SFO), for example, has been vocal in criticizing companies for "churning" the crime scene by interviewing key witnesses and disturbing documents before the SFO has become involved. The SFO has also criticized companies for continuing with their own internal investigations once an SFO investigation has commenced.

Therefore, it is important to have a plan to engage with regulators at an early stage to manage their expectations and have a coordinated approach to requests from authorities in different jurisdictions.

 

Preserve data and ensure compliance with data privacy laws

At the outset of an investigation, a company should take immediate action to preserve all relevant data. This may include imaging electronic data, issuing document preservation notices and ceasing automatic deletion policies.

An investigation team should always be aware that data may need to be collected, processed and presented in different ways for different regulators.

In addition, the increasing stringent requirements of data privacy laws globally make it vital for companies to have defined a data protection strategy for navigating different jurisdictions' data protection laws. This may include securing consents in advance in employees' employment contracts and putting in place appropriate data-sharing agreements among subsidiaries.

 

Consider the variation of legal privilege in different jurisdictions

At the outset of any investigation, a company should check the legal position on privilege in relevant jurisdictions to protect legal advice and relevant investigation materials from disclosure to regulators and third parties. The operation of privilege can differ significantly from jurisdiction to jurisdiction.

 

Plan for remediation and assess reporting obligations

Throughout the process of an investigation, it is crucial to consider potential remediation plans.

In some cases, a company must be able to show regulatory authorities that it has taken tangible steps in response to the findings of an investigation. If an internal investigation is not initiated by government authorities, it is important for a company to assess whether any self-reporting obligations will be triggered once a preliminary investigation has been completed.

Finally, in a multijurisdictional context, a company must consider all jurisdictions where it may have reporting obligations. This will not necessarily be limited to jurisdictions in which the relevant conduct took place. For example, a company should review and comply with all obligations to regulators in its home jurisdiction as well as any jurisdictions where the relevant conduct may have impacted its business.

This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2018 White & Case LLP

 

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