Ben Lewis reports on the corporate investigators to which law firms are increasingly turning in China

In the West, lawyers performing due diligence for a deal or gathering evidence for a case can rely on copious public sources or, when necessary, tough disclosure laws. In China, though, it's a whole different ball game.

"In China, in particular the public information records are not strong," says Colum Bancroft, head of the Greater China financial investigations group for Kroll. "That's where human intelligence comes in."

As companies doing business in China – as well as their shareholders and regulators abroad – clamour for more and better information in a country known for its opacity, investigative services are increasingly in demand. And along with established players like Kroll and the Big Four accounting firms, a slew of new entrants are eager to seize that opportunity.

china-computer-spyThese include New York's Nardello & Co. Founder Daniel Nardello says that 75% of the work at his 45-person investigative company already touches on China, so it made sense to open an office in the region. Earlier this year, Nardello hired Ben Rowse, a former head of China business intelligence at accounting firm Deloitte, to head a two-person office in Hong Kong, the investigative company's first in Asia. London's Risk Advisory Group also opened in Hong Kong last month. James Mintz Group, another New York investigative company, opened in the Asian financial capital last year.

Matt Pottinger, a former Beijing-based Wall Street Journal reporter who left journalism in 2005 to serve in the US Marine Corps, chose investigative work in China for his next career move. Pottinger returned to Beijing last year and set up China Six, a boutique investigations agency that assists with evidence-gathering, asset-tracing and locating witnesses.

"It was like going back to being a reporter again," he says, "but for a very small audience."

William McGovern, a partner in the Hong Kong office of Kobre & Kim, says that he uses investigation companies extensively. He says the volume of work is "ripe pickings" for such companies. Many of the start-ups offer useful niche services such as rooting out trademark and copyright infringement – a key concern of companies operating in China – by obtaining samples of suspected fakes. "There, you do need on-the-ground boots – almost detectives," says McGovern.

Hunting down counterfeits is just the tip of the iceberg. The Guardian reported in November that UK fund manager Anthony Bolton hired five investigation companies after investors in his Fidelity China fund lost 21% in value due to suspicions of fraud among the fund's portfolio companies.

The increase in overseas litigation against Chinese companies has also driven demand for investigators on the ground to ferret out evidence. According to a Supreme People's Court judge quoted in state-run newspaper China Daily, disputes between Chinese and overseas parties drove a 10% increase in litigation.

International lawyers also say that litigation with Chinese business partners is on the rise. "The numbers are pretty staggering if you compare 2011 with 2008," says Jones Day New York litigation partner Robert Gaffey. The trend started with investors targeting Chinese reverse-merger companies. "Now, a couple of years in, it's gone beyond that, partly because the plaintiffs have already mined that field," he says.

Like everyone else, investigators typically begin researching subjects on the internet, but Nardello head Daniel Nardello hints that the pros know how to use the web a bit more effectively than the average surfer. "This is a lot more than Googling," he says. "It's high-tech, 21st century gumshoeing."

Investigations then move on to industry sources, former associates, journalists and others who might help paint a picture of a business or individual in China, says Bancroft.

Pottinger says that smaller outfits like his can go where the bigger competitors can't while still operating within the law. "Their job is to go through the front door of the company," he says of larger rivals. "Our job is to find out what is going on without letting the company know we're investigating."

But finding out things in an authoritarian place like China presents special risks. China's draconian state secrecy law makes the transfer of any information whose disclosure "would damage state security and interests in the areas of politics, economy and national defence" potentially illegal. The wide definition could potentially cover a great deal of useful information. In one widely noted incident, China High Precision Automation Group last year cited the law as reason for withholding information from its auditor, KPMG, which subsequently refused to sign off its accounts.

Concerns about running afoul of state secrets law could hurt business for some of the smaller investigative companies. Gaffey says he feels safer hiring big companies, like the Big Four, which are likely to have in-house legal advice and greater "sensitivity" to China's legal landscape.

One Hong Kong-based general counsel for a French company echoes that thought. "I simply wouldn't risk working with the smaller firms," he says. "The China State Secrecy Law is too much of a risk."

The risks don't end there, though. The investigative industry in China recently attracted an unwelcome spotlight when it emerged that Neil Heywood, the British citizen whose suspicious death in November helped lead to the ousting of senior Communist Party official Bo Xilai in March, had worked for UK investigations company Hakluyt & Co.

Though Hakluyt says Heywood was not doing work for it at the time of his death, Nardello worries the incident may nonetheless prompt greater scrutiny of investigation companies in general. It wouldn't be the first time: in 1993, the Ministry of Public Security banned private investigation outright.

China's Supreme People's Court appeared to ease that ban in 2002 when it ruled that secretly gathered evidence could be admitted in Chinese courts. But without any official regulation of investigators, their legal status – and the admissibility of some of the evidence they gather – remains unclear.

Still, the opportunity beckons, and Nardello, a former Manhattan federal prosecutor, says experienced investigators are good at knowing what lines not to cross. "I spent a good part of my life putting people in jail," he says. "I did it long enough to know I don't want to end up there."

This article first appeared in The Asian Lawyer, an affiliate title of Legal Week.