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Forensic Outlook 2016Driving ethical business growth in a dynamic risk environment

Fraud Investigation & Dispute Services

2 | Forensic Outlook 2016

Forensic Outlook 2016 | 3

Arpinder SinghPartner and National Leader Fraud Investigation & Dispute Services

During the past year, India witnessed a host of transformational efforts toward economic growth and improved investor confidence. Regulations were launched to improve transparency, and at the same time, corporates echoed their commitment to maintain and conduct business ethically.

While the general sentiment remains buoyant, corporate India cannot ignore the looming threat of risks around non-compliance, fraud and corruption. Furthermore, the influx of technology has multiplied avenues for potential misuse, thereby amplifying uncertainty.

The issues emerging due to an evolving risk landscape are becoming a serious cause for concern for corporate India. Companies are now beginning to witness the reality of these threats and are consequently realizing the imminent need for enhanced internal controls and compliance to safeguard their business. With a direct impact on their financial position, proactivity in addressing these threats will be essential to plug any loopholes.

EY’s Fraud Investigation & Dispute Services practice has outlined key trends that corporates in India should be cognizant of in 2016 to mitigate risks and chart a holistic growth road map.

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Drive toward deception technologies underway

Large organizations that have already been victims of cybercrime are now wary of the situation that they could find themselves in, if they fall prey to this beast again. They are now revisiting their strategy to focus more on a proactive approach, where they can identify certain critical systems. They can then regularly assess these systems for any indications of compromise. This “new” methodology also involves deploying honeypots, or decoy systems that look exactly like a key system. Any activity on the decoy system triggers an alert and the incident is investigated.

Another addition to such “detection” weaponry is “network security monitoring,” which involves scanning all the packets coming in or out of the organization. It also provides real-time alerts if compromise or malicious activity is detected.

Hackers shifting focus to target medium and smaller firms

Siphoning off relatively lower sums of money enables hackers to stay under the radar as such attacks remain undetected for

Cyber laws to gain momentum

Today, there are no legal obligations on Indian companies to notify the breach of cybersecurity to any Government or self-regulatory agency. However, under the respective laws — the Information Technology Act, 2000 (IT Act), the Telegraph Act, 1885, the Code of Criminal Procedure, 1973 and other applicable laws — enforcement authorities are bestowed with

Mukul Shrivastava, Partner, Fraud Investigation & Dispute Services, notes that there was a spike in cybercrime cases in 2015 as hackers scouted for opportunities to infiltrate bigger firms for data. While there is more awareness around cybercrime, many companies still tend to have a reactive approach and act only when an incident has taken place. This mind-set seems to be changing as companies gear up to take on the cyber challenge.

longer periods. This has put medium and smaller firms on the cybercrime map, as their systems and security measures are likely to be more permeable.

In most instances, security measures are not at the top of their list of business priorities and their approach can be quite lackadaisical. Investment in protection and detection is, therefore, meagre or non-existent. Such companies become easy prey for hackers.

Confronting cyber threats


“Spear-phishing” to see a spike

Spear-phishing is one of the most common strategies employed by hackers to derive easy profits. It involves targeting a certain person or an entity, and creating email payloads that deceive the target into making payments into fraudulent bank accounts. According to Kaspersky Securelist’s Spam and Phishing Report, approximately 4 million users had been targeted by phishing attacks in India in the third quarter of 2015. In 2016, companies will need to take suitable steps to guard their data from similar attacks.

Cyber-attacks to become more sophisticated

Dridex, Cridex, Zeus – these are the names of sophisticated “banking Trojans,” which have slowly started to appear in all kinds of firms, and not just banks. These Trojans give the hacker full control of the victim’s system. Mobile banking Trojans, such as “ibanking” are not far behind, and are gaining popularity as the usage of mobile banking apps increases. Ransomware, such

powers to compel information disclosure from those in charge (such as intermediaries, Internet Service Providers, etc.,) of any “computer resources” involved in any form of cybersecurity or law breach. Such intermediaries are mandatorily required to disclose all the information in relation to the breach situation. Going forward, we expect the Government to bring forward a legislation that would ensure strict cybersecurity disclosure norms. These would be essential for companies to defend their critical assets.

as “Cryptolocker,” is also on the rise, encrypting all important files on the system and forcing the user to pay the ransom in bitcoins.

ConclusionAccording to EY’s 2016 Global Forensic Data Analytics Survey, Shifting into high gear: mitigating risks and demonstrating returns, cybercrime is perceived as the fastest growing fraud risk in India. In the survey, 40% of respondents from India highlighted an increasing level of concern around cyber breaches or insider threats over the last two years; 65% stated that these risks are leading to increased investment in Forensic Data Analytics (FDA). This shows companies’ intent to have a more proactive approach and higher investment around cybersecurity going forward.


Impact of regulatory changes to drive positivity

New regulations and amendments to address, reprimand and penalize instances of bribery and corruption are still underway. For instance, the Prevention of Corruption (Amendment) Bill, 2013, Lokpal and Lokayuktas Amendment Act, and the Amendment to Whistle-blowers Protection Act, 2011 have been tabled in the Parliament.

The Prevention of Corruption (Amendment) Bill, 2013 is set to improve the country’s anti-corruption framework and bring it to comparable global standards. Some notable aspects of the revised provisions include the defined timeframe of trial completion within two years, inclusion of other forms of gratification besides monetary benefits, and an increase in fines and penalties. These provisions are expected to invoke a heightened sense of accountability within companies, their boards as well as the authorities, as each would have more at stake.

Repercussions of bribery and corruption linked directly to business

Globally, the responsibility of mitigating bribery and corruption risks rests on commercial organizations, and they are reprimanded if they do not succeed. It is a matter of time before domestic companies will need to match similar standards, with increased globalization, foreign investments and collaborations,

proactively address these risks. According to EY’s EMEIA Fraud Survey 2015, Fraud and corruption: the easy option for growth?, 80% of respondents stated that bribery and corrupt practices occur widely in business.

As the business environment will remain challenging and competitive, these risks can impact organizations’ bottom lines. Going forward, authorities in India will look to reinforce public perception through enforcement of law; their intent is visible through the frequent high-brow arrests taking place.

Bribery and corruption will continue to be challenging

Vinay Garodiya, Executive Director, Fraud Investigation & Dispute Services, believes India is on an upward growth trajectory with thriving markets. However, this scenario is not devoid of risks. It has been seen that companies may end up resorting to unethical practices to combat rising competition, reward investors and achieve unprecedented revenue targets. This exposes them to the risks of bribery and corruption.

Corporates under greater spotlight

In 2016, companies could continue to face the adverse repercussions of bribery and corruption unless they realize and


Embracing compliance

Active measures are being progressively included to identify and seal any gaps within organizations’ compliance frameworks. These include, but are not limited to, introducing or re-evaluating the company’s code of conduct and anti-bribery and corruption compliance framework, setting up whistle-blowing frameworks to enhance transparency, conducting awareness trainings, and implementing thorough fraud, bribery and corruption monitoring systems.

Furthermore, as the Indian market has secured considerable foreign investment, companies will be introduced to new standards of compliance requirements in line with foreign regulations such as the US Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act (UKBA).

changes in domestic regulations and regulators’ expectations. They should, therefore, start investing in compliance, anti-fraud and anti-corruption programs early on. Conclusion

According to Transparency International’s Corruption Perception Index 2015, India was ranked at 76, moving up from 85 in 2014. While the rankings show progress, the score is the same as last year, at 38/100. This means that while India’s ranking has relatively improved with respect to other countries, the perceived level of corruption has not changed.

However, with regulatory action and enforcement underway, the crackdown on corrupt practices is expected to be dealt with strictly. Keeping this in mind, corporations will have to build and maintain internal mechanisms to manage these threats and simultaneously evade any punitive action.


Turmoil to continue around rising NPAs

Rising NPAs will continue to be a concern in the banking sector, even as the Reserve Bank of India (RBI), the Government and other authorities have initiated various steps in the direction of governance, early detection, accountability and responsibility. As banks inch toward early resolution of NPAs, they will increasingly look at conducting independent forensic audits of the borrowers to uncover potential fraud or diversion of funds.

With the March 2017 clean-up deadline by the RBI just around the corner, the sector will have to concentrate on identifying the right accounts and deciding on recovery measures, such as asset tracing, to reduce the stress. The sector would also see a huge spurt in asset sales to asset reconstruction companies (ARCs).

Impact of the Bankruptcy law

The Bankruptcy Bill will be a positive move as it will look to fuse existing laws around insolvency of companies. It sets the time limit for the insolvency resolution to 180 days, thereby allowing lenders to take decisions on the sustainability of the

Battling the black money menace

Getting away with undisclosed assets and income will become tough in light of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Bill, 2015 and the Benami Transaction (Prohibition) Bill 2015. Collectively, these reforms will fuel more transparent business dynamics and serve as a critical warning to individuals who possess illicit wealth.

A parallel set of actions through a series of bilateral agreements are also targeted at unveiling hidden wealth. With India being

Vikram Babbar, Executive Partner Fraud Investigation & Dispute Services, explains how the banking and financial services sector is facing a significant upheaval with rising Non-Performing Assets (NPAs) in corporate loans, money laundering and unaccounted black money. Banks will need to focus on proactive measures to build a strong governance mechanism.

business. The inclusion of “insolvency professionals,” a set of experts, will further bring credibility to the process.

Furthermore, it will help fast-track the winding-up processes of defaulting companies and provide a faster exit route for lenders. Identifying the true “intent” of the borrower and safeguarding assets would remain essential to successful implementation.

Overcoming concerns in the banking and financial services sector


ConclusionAs the banking and financial services sector grapples with its current set of issues, RBI has geared up to take on these challenges head on. The recent resolutions around stressed assets such as strategic debt restructuring, establishing the central fraud registry, early warning signals and others, are expected to aid in cleaning up balance sheets and improving the efficacy of the sector.

With these reforms and guidance in the driver’s seat, it is expected that the volatility in 2016 will stabilize and recovery will ensue.

Fortifying anti-money laundering controls

Proactive measures will be critical

An EY Fraud Investigation & Dispute Services survey conducted to assess the reality of the NPA situation, Unmasking India’s NPA issues: can the banking sector overcome this phase?, highlighted key areas that will draw investment from banks as part of their proactive strategies around managing NPAs. These

The issue of money laundering has been quite troubling for the banking and financial services sector. Recent news around Know Your Customer (KYC) violations, especially around forex transactions, gaps in compliance monitoring systems and processes, trade-based money laundering, and issues within effective “on-the-ground” branch-level monitoring, has led to increased pressure on the sector and penalties imposed by regulators.

Newer mandates, such as revised “Risk-Based Approach” guidance for the banking sector, requirement of surprise visits within branches to assess inherent gaps “on the ground,” and enhancement of key scenarios to track money laundering schemes, will enable tightening of anti-money laundering (AML) norms. To further strengthen controls, banks will have to update their AML frameworks with the right tools, policies, reporting, training and monitoring.

a signatory to the multilateral Automatic Exchange of Information (AEOI) agreement and the Foreign Account Tax Compliance Act (FATCA), is only a matter of time before the authorities uncover such assets.

include technology and data analytics, conducting independent borrower background checks, enhancing internal skill sets on credit assessment/evaluation, and formulating separate teams to monitor accounts.


Violation of emission norms – These include manipulation of prototype test norms and test results; faking records and documents, including intentional non-updating of failed internal tests and conspiring internally to submit favorable test reports; lack of action on quality defects and non-reporting of such defects to the senior management at the start of production, etc.

Bribery and corruption – These include monetary and non-monetary benefits extended to Government officials for managing emission test results, negotiating fleet sale contracts, obtaining bulk sale orders, and managing non-compliance to various government licenses and regulatory requirements.

Dealer frauds – These include frauds in dealer sales commission and warranty claims, use of counterfeit products, discounts offered to ineligible customers by manipulating underlying records, teaming and falsifying bills of lading during collection and cheque deposition.

Inventory theft and scrap sales – These include theft of inventory and peddling these products in the grey market, manipulation in weighing records, higher grade scrap sold at a price applicable to lower grade, non-invoicing of scrap dispatches, and sale of rejected auto parts without proper defacement.

According to the India Brand Equity Foundation (IBEF), India’s automobile industry is one of the largest globally. It had an annual production of 23.37 million vehicles in FY15, following a growth of 8.68% over the last year. It accounts for 7.1% of the country’s gross domestic product (GDP). However, the last few years have been quite challenging for the sector, with a high number of vehicle recalls and the detection of other safety issues. Some other risks faced by auto companies include:

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Bribery and corruption – The RCP sector is prone to risks related to bribery and corruption, which could involve improper payments to authorities. Companies could route these payments through third parties to get approvals for licenses or certificates necessary to conduct business.

Supply chain leakage – Another risk could be on the supply chain side, such as thefts or any dubious movement of inventory, collusion with scrap vendors, etc. This may also be linked to internal fraud, such as theft by employees.

Counterfeiting – The use of external entities for production and services exposes companies to counterfeiting risk. It may be easier to penetrate the external agencies and gain access to original material to assemble counterfeits at minimal cost. This not only results in a loss of revenue but exposes companies to increased reputation and litigation risk as well.

The Retail and Consumer Products (RCP) sector has seen a significant uptick in India, with increasing consumer purchasing power as well as varied choices. There has also been greater penetration in larger (metro) markets as well as entry into tier two markets, where products are directed toward rural consumers. With cost reduction high on the agenda, many companies have resorted to cost reduction initiatives to maintain profitability. This has given rise to several risk scenarios, including:

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India’s media and entertainment sector has been growing rapidly owing to rising consumer spends and increasing advertising revenues. But with this growth, company boards and managements need to address the rising fraud, bribery and corruption risks, which seem to be quite prominent and perhaps an “accepted” practice. People continue to hide behind the garb of this sector being either “unorganized” or a pre-requisite to being “creative.” This issue is further amplified by the presence of a large number of freelancers, one-man shops and creative resources. But in recent times, there has been a shift toward instilling an ethical corporate culture. Some of the risks for the sector include:

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Kickbacks – These include areas such as carriage fees, satellite rights, Intellectual Property Rights (IPR) and production budgets. This can also indicate a high risk of collusion between employees and external parties.

False invoicing and overbilling – Charges for services not rendered could be another risk because of third parties and are another serious challenge faced by the industry. There may also be overbilling for post-production work such as edits, voice-overs, promos, branding, graphics, etc. These issues are typically due to lack of adequate internal controls, a situation which is exploited by external parties with the connivance of “insiders” engaged in corrupt practices.

Information leakage – Vulnerabilities arising due to “anytime and anywhere accessibility” and social media could pose a major threat and lead to leakage of confidential company and customer information. This may be through employees or external parties. Fraudsters may also resort to manipulation of procurement, accounting or other IT-based processes or systems.

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Vendor mismanagement – Third parties (sellers and vendors) may resort to unethical practices such as sale of counterfeit goods, excess billing, collusion with employees, etc. Inadequate diligence or background checks by the company could result in substantial financial and reputational losses.

Logistics fraud – A major fraud risk could be around logistics, which includes theft or diversion of goods, excess charges for warehousing and deliveries, and undetected losses due to inefficient or non-reconciliation of cash on delivery (COD).

Liquidation fraud – This includes insufficient quality checks due to employee or vendor collusion with scrap vendors, and liquidation of good stock at manipulated rates.

Data security – Data security is a major concern for e-commerce companies. The theft of confidential customer information such as customer data, bank details and credit card details can lead to severe business loss and disruptions.

Over the last few years, India has become a global e-commerce village, enabled by an increased online customer base with ready access to the internet, smart devices and technology upgrades. Like any buoyant sector, e-commerce is susceptible to fraud risks, which companies need to defend themselves from. Some key concerns for e-commerce players are:

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Demand for eDiscovery on an upswing

Being prudent, GCs are looking to rationalize the average costs for legal services. To achieve a reasonable ratio, they are factoring in the cost for eDiscovery as well as response time. Incorporating an efficient eDiscovery mechanism not only equips them with the capability to take on any kind of regulatory notice, but also enables them to seamlessly undertake internal investigations that can provide crucial information for uncovering fraud.

Simultaneously, data governance is also becoming sturdier, as companies prefer an efficient information governance architecture that is well-equipped to suit eDiscovery requirements. This combination provides a speedy and hassle-free eDiscovery response.

Increase in integrated legal services

MDR and eDiscovery are being deployed extensively to support litigation proceedings, and to stay compliant with regulatory changes. In 2016, this trend is expected to see a significant

Anil Kona, Partner, Fraud Investigation & Dispute Services, highlights that corporate litigation tends to be a costly and time-consuming affair. With the volume and value of litigation costs skyrocketing, General Counsels (GC) have become risk-averse. They are looking at eDiscovery and Managed Document Review (MDR) to support proceedings and stay compliant.

Widening the ambit of Managed Document Review

The scope of document review is expected to widen to include audio reviews. This is partly due to the increase in usage of phones and other communication devices, as well as software facilitating conversations, which can prove to be valuable pieces of evidence in any regulatory or internal investigation. We anticipate an evolution and expect widespread adoption of

uptake as market awareness increases.

eDiscovery providers with sophistication and competence will be increasingly preferred by companies that have a vast geographical presence and are exposed to multi-jurisdictional litigations. Managed services related to these tools are also expected to gain traction, as companies look to minimize risk and utilize the services of qualified industry professionals.

Liberating General Counsels through eDiscovery and Managed Document Review


Clarity on social and mobile interactions being included in litigation

A widespread uptake of eDiscovery and MDR mechanisms may prompt the emergence of clarity from courts on various aspects surrounding them. Companies are also evaluating the enactment of clearer policies around mobile phone and social media usage at the workplace, to allow inclusion of relevant data in litigation proceedings. This will address the current ambiguity when dealing with acquisitions of organizational and personal data during the course of regulatory or internal investigations.

ConclusionRecent reports peg the global market for eDiscovery services at as much as US$8.2 billion at the end of 2015. This shows that markets are maturing and companies are using specialized services such as eDiscovery to manage the review process. The adoption of technology as an enabler continues, as expectations become aggressive and the quantum of work accelerates rapidly.

specialized audio review procedures that can complement the document review.


Amendments to Arbitration and Conciliation (Amendment) Act, 2015

In order to make India a preferred investment destination, the Arbitration Amendment Act, 2015 (which came into effect on 23 October 2015) brought into force several important provisions related to dispute resolution procedures in India. Key aspects include:

• Limiting the scope of “Public Policy” and time-bound disposal of challenge to arbitral award: The Arbitration Amendment Act, 2015 seeks to restrict the challenge to an award on the ground of public policy only to the following:

• Where the making of an award was induced or affected by fraud or corruption

• Where an award is in conflict with the fundamental policy of Indian Law

• Where an award is in conflict with the most basic notions of morality or justice

• Where the court finds that the award is vitiated by patent illegality appearing on the face of the award

• Time bound disposal of arbitrations The arbitral tribunal is to make the award within 12 months from the date that it receives notice in writing of its appointment. The parties may, by consent, extend the

Yogen Vaidya, Partner, Fraud Investigation & Dispute Services, notes that India’s phenomenal growth in domestic and foreign direct investment has resulted in an increase in commercial disputes. There has been an evolution in terms of the avenues to resolve commercial disputes, with the emergence of alternate dispute resolution mechanisms such as mediation, conciliation and arbitrations. These platforms are increasingly gaining prominence.

aforesaid period by six months. If the award is not made within the aforesaid period (i.e., 18 months), the mandate of the arbitrator shall terminate; unless, the court extends the period prior to or after expiry of the aforesaid period, on application by a party.

The mere filing of an application to set aside an award under Section 34 will not itself render the award unenforceable. The party seeking stay on operation of an award is required to file a separate application. Hence, unless stayed, the award will be enforceable after expiry of the period prescribed to challenge the award. The court may stay the award on similar considerations, as in the case of stay of a money decree.

Commercial disputes will see an uptick

• Detailed provisions regarding cost computation A new section has been inserted, listing the factors to be considered while granting cost. These include conduct of parties, whether frivolous counter claims are made, whether reasonable offer to settle dispute is refused by any party, etc.

• No automatic stay on Enforcement of Award by filing challenge proceedings


Model Text for the Indian Bilateral Investment Treaty (BIT)

Enactment of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015

The new model text for the Indian BIT will provide appropriate protection to foreign investors in India and Indian investors in a foreign country, in light of relevant international precedents and practices, while maintaining a balance between the investor’s rights and Government obligations.

The essential features of the model BIT include: an “enterprise”-based definition of investment; non-discriminatory treatment through due process; national treatment; protections against expropriation; a refined Investor State Dispute Settlement provision requiring investors to exhaust local remedies before commencing international arbitration; and limiting the power of the tribunal to awarding monetary compensation alone.

The model excludes matters such as government procurement, taxation, subsidies, compulsory licenses and national security to preserve the regulatory authority of the Government.

To provide fresh impetus to the ease of doing business in India, and to facilitate smooth and prompt resolution of commercial disputes, the Parliament enacted the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act) on 23 October 2015. The Act outlines the definition of commercial disputes, and setting up of commercials divisions in High Courts that are already exercising ordinary original civil jurisdiction (such as Delhi, Mumbai, Kolkata, Chennai, and Himachal Pradesh High Court).

ConclusionThe need for speed in resolving legal matters is paramount, and alternate dispute resolution mechanisms can offer companies a much-needed breather. With the Parliament passing the Arbitration and Conciliation Act, 2015 and Enactment of Commercial Courts in December 2015, the process of dispute resolution is expected to become transparent and effective.

Going forward, while one has to accept the reality that commercial disputes are unavoidable, evolving dispute resolution mechanisms will help businesses manage commercial disputes effectively.


Dealing with complex issues of fraud, regulatory compliance and business disputes can detract from your efforts to achieve your company’s potential. Enhanced management of fraud risk and compliance is a critical business priority — whatever the industry sector. With our more than 4,200 fraud investigation and dispute professionals around the world, we will assemble the right multi-disciplinary and culturally aligned team to work with you and your legal advisors. In addition, we will provide you the benefit of our broad sector experience, our deep subject matter knowledge and the latest insights from our global activities.

FIDS India• Deep competencies: Our FIDS team has specific domain knowledge along with

wide industry experience.

• Forensic technology: We use sophisticated tools and established forensic techniques to provide requisite services to address individual client challenges.

• Global exposure: Our team members have been trained on international engagements and have had global exposure to fraud scenarios.

• Market intelligence: We have dedicated field professionals, who are specifically experienced and trained in corporate intelligence, and are capable of conducting extensive market intelligence and background studies on various subjects, industries, companies and people.

• Thought leadership: We serve a variety of leading clients, which gives us deep insight into a wide range of issues affecting our clients and business globally.

• Qualified professionals: We have a qualified and experienced mix of Chartered Accountants, Certified Fraud Examiners, Lawyers, CIAs, CISAs, Engineers, MBAs, Former law enforcement officials and Forensic Computer Professionals.

Our services• Anti-fraud and fraud risk assessment

• Fraud Investigation

• Anti-bribery and Anti-corruption Compliance Services

• Dispute Advisory Services

• Competition and Trade Services

• Ethics and Integrity Due Diligence

• Third-party Due Diligence

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Recent FIDS reports

Shifting into high gear: mitigating risks and demonstrating returns

Global Forensic Data Analytics Survey 2016

Fostering safe workplaces

Corporate India’s transforming risk landscape — are you prepared?

Unmasking India’s NPA issues – can the banking sector overcome this phase?

Analyzing the state of Data Integrity Compliance in the Indian pharmaceutical industry

Fraud and corruption – the easy option for growth? Europe, Middle East, India and Africa Fraud Survey 2015


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