13.9 Conclusion

A training course should be organised for investigators by the Rimari Foundation.

To promote transparency and involve the parties more closely in the appointment of investigators, the Enterprise Chamber should make public its list of persons qualifying for appointment as Enterprise Chamber officials, without this affecting its right to appoint investigators who are not on the list on an ad hoc basis in exceptional cases.

Once an investigation begins, the Enterprise Chamber should more emphatically direct the investigation by formulating the investigative order more clearly.

The Enterprise Chamber should not determine an investigation budget of its own accord so as to avoid this being a rough estimate in practice. Instead, it should ask the investigators to draw up a proposed budget that the Enterprise Chamber can then use to set the investigation budget.

The Enterprise Chamber allows investigators too much of a free hand in conducting the investigation as they see fit and is not sufficiently open to criticism from parties about the conduct of the investigation. This applies both during the investigation itself and in second-phase proceedings. The parties sometimes, and not wrongly, have the impression that they are being fobbed off with empty promises.

The Enterprise Chamber should substantially sharpen the “issues for attention, recommendations and suggestions for investigators”. It should establish in a more mandatory manner how investigators should act in particular circumstances, on the understanding that the rules should also be sufficiently flexible to avoid excessive formalisation of investigations in smaller, curative inquiry proceedings. In future, the “issues for attention” should be named “guidelines for investigators in inquiry proceedings”, which is in fact what they already are.

Investigators should assess the legal entity’s policy and conduct of business, but should not characterise these in legal terms. This means that they should not express a view as to whether mismanagement has occurred and should not make proposals for the measures to be ordered by the Enterprise Chamber.

Investigators should express an opinion only on who is responsible for apparent mismanagement if the Enterprise Chamber has explicitly requested them to do so, and they should in that case confine themselves to the responsibility of the various corporate bodies in the legal entity. The Enterprise Chamber should exercise great caution in requesting investigators to provide an opinion on these matters.

Efficiency gains can be realised if examining judges are given a greater role and if a number of cases in which the Enterprise Chamber now takes decisions are handed over to examining judges.

It is not necessary to fundamentally amend the law in order to improve the legal protection of parties to the investigation. Legal amendments are desirable only in relation to minor points.

The investigators and, in second-phase proceedings, the Enterprise Chamber should be aware that they inevitably make judgments with hindsight bias. To mitigate the consequences of hindsight bias as much as possible, investigators must apply a structured work process. The Enterprise Chamber should be aware that the application of certain legal rules can increase or limit the risk of judgment with hindsight bias and should take account of this in formulating these legal rules.