Anti-Corruption and Bribery Compliance

Now that Canada’s CFPOA is actually being enforced, ambiguities in the wording are leading to disagreements over interpretation. What does this mean for litigators and organizations subject to the Act?

• Understanding the nature and implications of the Act’s weaknesses, and the proposed amendments to address them
• What does the language “real and substantial link to Canada” mean, and is there more than one interpretation?
  • Does financing count?
  • Do you need direct instruction?
  • Will the courts apply the interpretation employed in competition law?
• Considerations when applying the penalty provisions

The extent to which Canadian multinational corporations are subject to the American Foreign Corrupt Practices Act (FCPA) and the UK’s new Bribery Act

• How are the three pieces of legislation similar and different?
  • Key features of the FCPA Who is a foreign official?
  • Key features of the UK Bribery Act, including the Failure to Prevent Bribery offence
    • Who administers/enforces them?
  • Application
  • Guidelines for prosecutors in the UK
  • Enforcement provisions
  • Types of behaviour captured
  • Scope of review and production required
  • Defences
  • Types of penalties available
  • Implications of declination letters
• Application to transactions within the private sector
• Reconciling the FCPA’s prescriptive approach to compliance with the UK principles-based approach: what is the best approach for Canadian companies?
• What other European regulations should Canadian companies be aware of?
• Initial charges under Australian legislation
• Do foreign officials have jurisdiction over individuals on Canadian soil?
  • How the US defines a nexus
• Can the Canadian Act be superseded by foreign legislation?
• Can a conviction under laws in one country constitute a predicate offence for a money-laundering or RICO offence in another?
• How and when does double jeopardy apply?
• Does compliance in one jurisdiction ensure compliance in others?
  • If you are FCPA compliant, will that satisfy Canadian requirements?
• How are government agencies working together to regulate international corrupt practices?
• Coordination among branches of the US DOJ
  • How cooperating witnesses and companies in other investigative areas, such as competition, may face questions/disclosure on the bribery front
• What industries are being targeted for enforcement?
• Canada’s new Freezing Assets of Corrupt Regimes Act

In this session, the investigator and prosecutor from the Niko Resources case will talk about lessons to be learned from Canada’s first major CFPOA investigation, conviction and $9.5 million fine.

• How authorities were tipped off to the infractions
• Issues about gifts and hospitality
  • Where bona fide hospitality can get off the rails
• Resources required for the investigation
  • Why it was so complicated
  • Numbers of people assigned to the case
  • Collaboration with other agencies
  • How long the MLAT process takes
• Precharge negotiations with defence counsel
  • Lessons for engagement with the authorities
  • Pre-charge disclosure
• How the fi ne was calculated
• Evidentiary issues
  • Where was the evidence gathered and under what legislation?
  • Getting banking and other records from Bangladesh
  • Admissibility

• How to identify red flags when selecting representatives
• Essential contractual provisions
• Getting your agent on board with your compliance program
• Effective monitoring of representatives and early warning systems
• Identifying payroll fraud/phantom employees
• Corporate liability and when an agent goes rogue: Is there a difference?
• How to deal with the recommendations of foreign government officials

• What are facilitation payments?
• Examples
• How are they treated by the various regimes?
• Avoiding “touts”

• The pros and cons of voluntary disclosure of infractions
• What do you need to tell your auditors?
  • What might your auditors require you to do?
  • What are your auditors required to do with that information?
  • What constitutes a material finding? A material control weakness in financials?
  • Does discovery of dishonesty at senior management level call into question reliance on information provided to previous audits?
  • How does the conversation with auditors relate to the conversation with regulators/law enforcement?
• The mechanics of making a voluntary disclosure
  • To whom do you make the disclosure?
  • What is the protocol?
• How your relationship with a prosecutor may affect your decision
• Do you have to disclose to more than one jurisdiction?
• Dodd-Frank implications
• Examples from Canada and the US

• Transparency International’s guidelines
• The Bribery Act’s six principles of adequacy
• What should risk assessment look like?
  • Identifying high-risk jurisdictions, industries, individuals and transactions
  • Are there countries you should just stay out of altogether?
  • The top ten ways bribes are disguised
• Recognizing common typologies of corrupt behaviour
• Using technology and analytics to monitor high-risk transactions
• Tailoring policies to the country in which you are doing business
• Managing supply chains
• Devising internal controls and audits: getting to what works
• Essential document retention policies
• Establishing cost-effective, high-quality training protocols for employees and third-party agents
• The role of HR
• How and why to develop and reinforce supportive internal whistleblower programs
  • Implications for publicly traded companies of the Dodd-Frank amendments and their potential enormous financial windfall for whistleblowers
• What to do when an international course of dealings is different from your internal compliance program
• What is adequate but realistic for a smaller organization?
• Documenting compliance efforts
• Adapting compliance procedures in conjunction with developing case law
• Integrating compliance into a more comprehensive corporate social responsibility program
  • Creating a culture that rejects corrupt practices Recommended guidelines for charitable and political donations
• The role of the Board
  • Avoiding lawsuits for breach of fiduciary duty

• Communicating effectively with enforcement agencies
• What the Board needs to do
• Litigation holds
• Negotiating immunity
• Considerations for publicly traded companies
• Managing document preservation, collection and review
• Preserving privilege in countries where it is recognized
  • Implications of the Akzo Nobel case in the EU
• Managing legal and compliance costs
• Cooperating with investigators while protecting your organization from potential follow-on lawsuits
• What federal law enforcement agents look for when meeting with defence attorney

• Learning from the pre-merger negotiations between Lockheed and Titan
• Guidance from Transparency International
• What internal compliance programs should be in place before considering cross-border financing
• Avoiding successor liability
• What to look for in a target’s compliance program and internal controls
• Risk-based analysis for M&A
• What steps should be taken upon the discovery of potential violations?
  • Before and after acquisition
  • Disclosure and privilege considerations
• Pros and cons of seeking pre-transaction review and approval from relevant authorities
• What are underwriters looking for when they do their own due diligence before providing financing for a deal?
  • How compliance deficiencies can limit your access to capital markets
• Dealing with state economies such as China
  • Identifying state-owned enterprises
  • Who are your partners, and what are their affiliations with the government?
  • Dealing with opaque company registration
  • Considerations for dealing with sovereign wealth funds and associated officials