SWEDEN Trends and Developments Contributed by: Jenny Welander Wadström, Björn Johansson Heigis, Andreas Hallbeck and Säde Märgel, Roschier
First, the Whistleblower Act’s emphasis on independ - ence and impartiality has prompted organisations to consider whether internal resources can be perceived as sufficiently neutral, particularly where allegations concern senior management, key personnel or indi - viduals close to those who would ordinarily conduct investigations. External investigators may be viewed as better placed to avoid conflicts of interest, and to give assurance that the process is unbiased. Second, the growing complexity of legal and regu - latory requirements – spanning whistle-blower pro - tections, the GDPR, labour law, discrimination law, sanctions and sector-specific regulations – together with increased fines that corporations may be liable to pay, drives demand for specialised expertise. Exter - nal counsel with expertise in Swedish employment and data protection law and other relevant areas, and with cross-border investigation experience where needed, can help structure investigations that with - stand scrutiny from courts, regulators, the media and other stakeholders. Third, reputational risk has become a major consid - eration. Allegations of criminal activities, financial misconduct or ethical breaches within companies can attract significant public and media attention, espe - cially for publicly listed companies or in sectors with a public mandate or high visibility. Engaging external investigators can be perceived to signal seriousness and transparency, even where the underlying legal obligations do not strictly require it. Typical mandates and scope The mandates given to external investigators in Swe - den vary. In some cases, an external counsel or other consultant is asked to conduct a fully independent investigation, including scoping, document review, interviews and preparation of a factual report with or without legal analysis. In other cases, the mandate is more circumscribed – for example, is limited to cer - tain interviews, an assessment of the sufficiency of an internal inquiry or advice on legal risks and the next steps to take in view of an investigation’s findings. A common pattern is the separation of roles between external fact finders and legal advisers on the one hand and internal decision-makers on the other hand.
External counsel may be tasked with establishing a factual record and a legal analysis, while decisions on disciplinary measures, organisational or policy chang - es and whether to report to the authorities remain with the company. This approach preserves the company’s ultimate responsibility for employment-related and other decisions while benefitting from external exper - tise and independence. Developments in methodology As it has become more common to engage external support to conduct internal investigations, Swedish best practices for internal investigations have increas - ingly aligned with international standards. Typical fea - tures include: • written investigation plans setting out the scope, methodology and timelines; • early identification of legal and data protection issues, including cross-border aspects and poten - tial disclosure obligations (eg, for publicly listed companies, where the information can be consid - ered price-sensitive); • structured interview protocols, with clear infor - mation provided to interviewees about purpose, confidentiality and data processing; • systematic approaches to evidence review, includ - ing digital evidence handling; and • clear distinction between fact finding and legal or policy analysis in investigative reports. These developments reflect both market expectations and the influence of external guidance, such as the global investigation frameworks used by multination - al companies and international law firms. They also respond to the increased likelihood that investigative processes will be scrutinised in subsequent disputes, including employment litigation or administrative or criminal proceedings. Relationship with attorney-client privilege Companies frequently engage attorneys who are members of the Swedish Bar Association ( Sw. advokater ) as external investigators, in part because of the application of attorney-client privilege to com - munications and work products. As discussed further below, attorney-client privilege in Sweden attaches to external attorneys, not to in-house counsel or other
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