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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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Checking In Down Under

Australia

A guest post from Robert Wyld (an attorney at Johnson Winter & Slattery in Sydney). Wyld is the Australia Expert for FCPA Professor.

This update covers a range of important developments in Australia and overseas in the area of foreign bribery policy, commercial crime, investigations and regulation to 19 December 2018. The year has been mixed with statutory reforms progressing at a snail’s pace while the Australian Government has been brought kicking to the table for a national Integrity Commission, which surprisingly, protects parliamentarians from public hearing or dare it be said, public scrutiny. The year ended with the publication of the court cases in the long-running Securency banknote printing foreign bribery scandal. While some convictions by way of guilty pleas were achieved, the remaining prosecutions spectacularly collapsed with the High Court of Australia sternly criticising investigative agencies for egregious illegal conduct which irreparably prejudiced the rights of certain accused to a fair trial.

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Canada Now Has Deferred Prosecution Agreements

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A guest post today from Toronto-based Borden Ladner Gervais attorneys Milos Barutciski, Graeme Hamilton and Julia Webster.

On September 19, 2018, deferred prosecution agreements (DPAs) became available to resolve corporate offences in Canada under the Criminal Code and the Corruption of Foreign Public Officials Act.

Remediation Agreements will be available to resolve criminal charges against corporations, partnerships and other forms of business organizations without registering a criminal conviction. Remediation Agreements will be negotiated by the prosecution and the accused and are subject to judicial approval. They will typically be accompanied by the payment of penalties, restitution, implementation of compliance measures, and other terms and conditions as negotiated by the parties, including the potential appointment of corporate monitorships.

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A Focus On The French Portion Of The Société Générale Enforcement Action

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Previous posts here, here and here highlighted the U.S. prong of the recent Foreign Corrupt Practices Act enforcement action against French bank Société Générale S.A. (SoGen) “relating to a multi-year scheme to pay bribes to officials in Libya.”

In this guest post Cécile Terret & David Père (Paris-based attorneys with Bryan Cave Leighton Paisner) discuss the French portion of the global enforcement action.

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Checking In Down Under

Australia

Today’s post is from Robert Wyld (an attorney at Johnson Winter & Slattery in Sydney and the Australia Expert for FCPA Professor) and covers recent developments from Australia in the general area of foreign bribery.

The key issues that are covered include: Australian Securities & Investments Commission and Australian Wheat Board UN Oil-For-Food Cases; Foreign Bribery Law Reforms; Private Sector Whistleblower Protection Reform; and Senate Economics Reference Committee Review of Australian Foreign Bribery Laws.

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