Foreign Corrupt Practices Defence

Canada ratified the OECD “Convention on Combating Bribery of Foreign Public Officials in International Business Transactions” on Dec 17, 1998 and then enacted the “Corruption of Foreign Public Officials Act” (the CFPOA) on February, 14, 1999. Notwithstanding that CFPOA has been in force for 14 years there had been very little enforcement activity in Canada until the RCMP created a dedicated FCPA enforcement unit in 2008. It is estimated that the RCMP now has more than 40 foreign corruption investigations afoot.

Recently entered pleas by Niko Resources and Griffiths Energy illustrate the requirement that all companies adopt proactive internal control mechanisms to avoid conflict with the CFPOA. In addition both of these cases demonstrate that the RCMP’s commencement of a CFPOA investigation is a matter to be treated as entailing the utmost gravity.

A variety of complex multi-jurisdictional questions of fact and law are implicated by an RCMP CFPOA investigation. Target companies must immediately develop a preliminary strategy that will not only factor in the CFPOA, but also the foreign anti-corruption legislation of other countries, notably the U.S., and then effectively manage the internal and external defence investigations that are often required.

Many complex legal questions will also arise. As many of these have not yet been addressed by the Canadian Courts defence counsel will require extensive experience in the management of complex multinational investigations and defences.

M+A’s many years of experience in the conduct of such cases and it’s international network of associate counsel make it particularly well equipped to provide those companies, shareholders and corporate officers facing a foreign corruption investigation with the most comprehensive, cost effective, aggressive defence services available.

A brief review of only a few of the issues that arise in addressing foreign corruption investigations are canvassed in an article by Mr. Martin and Casey Leggett entitled “Foreign Corrupt Practices – Issues and Developments in the Canadian Context” which will appear in the May,2013 issue of the International Bar Association’s White Collar Crime Newsletter.