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Issues To Consider From The Westport Fuel Systems Enforcement Action

Issues

This prior post highlighted the SEC’s recent $4 million Foreign Corrupt Practices Act enforcement action against Westport Fuel Systems and a former executive officer (Nancy Gougarty). This post continues the analysis by highlighting additional issues to consider.

Just the Third

Westport Fuel Systems is a Canadian company with shares listed on a U.S. exchange. The enforcement action is believed to be just the third enforcement action in the FCPA’s 40+ year history against a Canadian company. The first enforcement action against a Canadian company was Nordion (2016 – see here and here for prior posts). The second enforcement action against a Canadian company was Kinross Gold (2018 – see here and here for prior posts).

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Canadian Court Finds That Bribery Is A Specific Intent Offense And That Government Failed To Prove That Defendant Knew That Bribe Recipient Was A “Foreign Public Official”

Judicial Decision

This 2014 post highlighted Canadian charges against Robert Barra and Shailesh Govindia (individuals previously associated with Cryptometrics) for bribing Indian officials including those associated with Air India.

As highlighted in the below post, a Canadian court recently concluded that violations under Canada’s FCPA-like law – the Corruption of Foreign Public Officials Act (CFPOA) – are a specific intent offense and that Barra did not know the individual he allegedly bribed was a “foreign public official.”

As further highlighted below, the Canadian court’s specific intent ruling conflicts with certain FCPA jurisprudence while the Canadian court’s ruling regarding knowledge of the status of a “foreign public official” ruling is consistent with certain U.S. jurisprudence – namely U.S. v. Carson – in which the court issued a “knowledge of status of foreign official” jury instruction prior to trial. (See here).

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Canada’s OECD Article 5 Moment

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Article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions states: “Investigation and prosecution of the bribery of a foreign public official shall be subject to the applicable rules and principles of each Party. They shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

As highlighted here and prior posts here and here, OECD Convention signatory countries such as the United States and the United Kingdom have seemingly violated Article 5 in connection with certain enforcement actions, so it is not surprising that Canada (also a signatory country) is also having an Article 5 moment.

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Civil Enforcement of Canada’s Foreign Corruption Law?

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A guest post by Graeme Hamilton and Omar Madhany (both with Borden Ladner Gervais LLP in Toronto).

Perhaps the starkest difference between the Foreign Corrupt Practices Act and Canada’s foreign corruption law—the Corruption of Foreign Public Officials Act (CFPOA)—is the fact that the CFPOA may only be enforced criminally.  As a result, enforcement authorities in Canada are held to the higher criminal standard of proof beyond a reasonable doubt when negotiating with a company to resolve a CFPOA investigation or contemplating whether to bring CFPOA charges.

The lack of a civil enforcement mechanism for the CFPOA is often cited as one of the main reasons for the disparity between the volume of foreign corruption enforcement activity in the U.S. and Canada.  A recent settlement announced by the Ontario Securities Commission (OSC) with Katanga Mining Ltd. (Katanga), however, may signal the beginning of a shift in this landscape by establishing a role for Canada’s securities regulators in tackling foreign corruption from a civil context.

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Friday Roundup

Roundup

Consistently damaged, across the pond, scrutiny alerts and updates, and for the reading stack. It’s all here in the Friday roundup.

“Consistently Damaged”

In this 12 minute video, Neil Bruce (CEO and President of SNC-Lavalin) describes his frustration for how the company is not being offered a remediation agreement (Canada’s term for a deferred prosecution agreement) in connection with its long-standing scrutiny. (See here and here for prior posts).

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