Corporate Investigation in Brazil: The Challenges Arising from the Lack of Specific Legislation and the Necessary Observance of the Fundamental Rights of the Subject of the Investigation

Abstract

This article aims to discuss the (in)sufficiency of guidelines for conducting internal investigations by corporations, highlighting the perceived lack of specific regulations and questioning whether compliance with the fundamental rights of the investigated party is mandatory. Given that it is a private investigation, there are questions regarding its initiation, management, and even the limits on evidence gathering. Furthermore, the perceived absence of regulation on the subject leads to more specific debates about the right to remain silent and access corporate emails and phones, as well as the use of covert investigation methods within companies and their potential illegality. Thus, the central research question is: Should corporate investigations adhere to the limits imposed on public investigations, particularly regarding the respect for the fundamental rights of the investigated party? To address this guiding question, the study employed Karl Popper’s hypothetical-deductive method, based on a bibliographic and jurisprudential review. The objective is to present the concept of regulated self-regulation, the current state of Brazilian legislation on the topic, and the framework of corporate investigations to ultimately determine whether compliance with the fundamental rights of the investigated party is required.