13.8 The end of the investigation

An investigation can end in two ways: by the submission of the report to the court registry or by premature termination of the investigation. This is addressed in Chapter 11. The investigation is terminated prematurely if the Supreme Court overturns the Enterprise Chamber’s decision to order the investigation, or if the Enterprise Chamber itself terminates the investigation. The former rarely occurs. Far more frequently, the Enterprise Chamber terminates the investigation. This takes place if, for example, the parties reach an out-of-court settlement or if no security can be provided for the – increased, if applicable – investigation budget because the legal entity is insolvent.

Following the regular termination of the investigation, the Enterprise Chamber must decide who will be permitted access to the report. A small, specified circle of individuals is permitted to inspect the report, including the petitioner and the legal entity. In by far the majority of cases, the Enterprise Chamber only permits ‘other stakeholders’ access to the report as well, without specifying who those stakeholders are. I take the view that this is undesirable, since this way allows the registrar of the Enterprise Chamber to decide who is entitled to a copy of the report. In my opinion, the Enterprise Chamber should specify which stakeholders may receive a copy of the report. The Enterprise Chamber occasionally rules that the report will be available for inspection by anyone, which means that the report is made public. This is the case if the investigation relates to a securities-issuing company or if there is a large number of stakeholders or a substantial public interest in other ways. I have formulated criteria that the Enterprise Chamber could use in order to decide who will be permitted to inspect the report.

If the investigation report is not made publicly accessible, it is confidential for anyone except the legal entity. Its contents may not be disclosed in any way whatsoever. However, the instrumental use of the inquiry proceedings means that the petitioner and other stakeholders may wish to use the report in follow-up proceedings, if these take place. For that reason, the presiding judge of the Enterprise Chamber may authorise those granted access to the report, to disclose information from the report.

The investigators’ work is not yet done after the report has been submitted to the court registry. They must also request the Enterprise Chamber to determine their fee. Furthermore they must keep the confidential investigation file that they have created and, if asked by the Enterprise Chamber, provide a verbal or written explanation of the report.