cml4150 glob_merged_document_2

CHIRINE HADDAD

7446267

CML4150 “GLOBALIZATION AND LAW”

PROFESSOR ERROL MENDES

2016-04-12

Corruption: the Cancer of Nations: Is Canada wining the fight? N 7446267

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Introduction:

In 2013 the World Bank had confirmed that around US$ 1 trillion is being spent in bribery each

year1, “while an estimated $2.6 trillion are stolen annually through corruption – a sum equivalent

to more than 5 per cent of the global GDP2”. Yet there is no universally approved definition for

corruption. The challenge in coming up with a conventional definition is due to the fact that what

forms an act of corruption varies from state and culture to culture. The lack of consensus on a

conventional definition of corruption had led to the outburst of numerous definitions. The World

Bank defines corruption as the following:

“the abuse of public office for private gain. Public office is abused for private gain when an

official accepts, solicits, or extorts a bribe. It is also abused when private agents actively offer

bribes to circumvent public policies and processes for competitive advantage and profit. Public

office can also be abused for personal benefit even if no bribery occurs, through patronage and

nepotism, the theft of state assets, or the diversion of state revenues. This definition is both

simple and sufficiently broad to cover most of the corruption that the Bank encounters, and it is

widely used in the literature. Bribery occurs in the private sector, but bribery in the public sector,

offered or extracted, should be the Bank's main concern, since the Bank lends primarily to

governments and supports government policies, programs, and projects3”.

Corruption is the cancer ravaging countries in their entirety. Writing about West Africa in 1961,

Franz Fanon underlined that “there is no soul down to the simple policemen or the customs

officer who does not join in the great procession of corruption4”. Later on, in 1965, Arthur Lewis

reported that corruption spread in West Africa with the “vast pickings in bribes, state contracts,

diversion of public funds to private uses, and commissions of various sorts”. He conveyed that

“to be a minister in West Africa at the time was to have a lifetime’s chance to make fortune. In

time, bribery and corruption become a way of life accepted as a mean of getting by, earning a

1 Mendes, Errol, “Global Governance, Human Rights and International Law: Combating the Tragic Flaw”,

Routledge: London and New York, 2014 p. 177 [Mendes]. 2 International Chamber of Commerce / Transparency International /United Nations Global Compact / World Economic Forum

Partnering Against Corruption Initiative. 2008, “Clean Business is Good Business”, online:

<http://www.unglobalcompact.org/docs/issues_doc/Anti-Corruption/clean_business_is_good_business.pdf>. 3 World Bank, “Helping Countries Combat Corruption: The Role of the World Bank”, (September, 1997) at p. 8, available

online: < http://www1.worldbank.org/publicsector/anticorrupt/corruptn/cor02.htm#note1>, [World Bank 97]. 4 Meredith, Martin, The State of Africa: A History of Fifty Years of Independence, Free Press: London, 2006 p.170.


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living, obtaining a service or avoiding hassle5”. The cancer of corruption extended even further

and was heightened by the long tradition of gift-giving in West Africa for performed services.

The “bigger” the “man” and the service provided the bigger the gift that was supposed to be

offered6. As a result the disease of corruption was exacerbated in West Africa right after

independence. The practice of bribery and larceny stretched from top to bottom, from public

officials to tax collectors, custom officers, law enforcements and dispensary assistants. It

contaminated everything from job applications to license issuance and renewal, scholarships,

foreign exchange operations and placement of factories7.

Another example of corruption occurred in the Philippines. The former president of the

Philippines, Ferdinand Marcos wanted to build a nuclear power plant in the Philippines. The

project was offered out to bidding. However part of the bid was to provide President Marcos

US$80 million as a bribe. Westinghouse Electric Corporation in the Philippines won the bid after

allegedly paying President Marcos the sum he required. The nuclear plant was built costing

US$2.3 billion, three times more than the equivalent one is South Korea. The plan never went

into operation for several reasons; the main reason is linked to the cancer of corruption. All the

contractors involved in that project were corrupt, even the person who provided the location for

the power plant was corrupt; it was built at the base of a volcano on an earthquake fault line.

Despite the fact that this power plant will never go into operation, the Philippines are compelled

to pay each day, since the 1970s until 2018, a sum of US$170,000 to finance this project pulling

dreadfully needed money in a poor country away from basic services such as education and

healthcare8. It really demonstrates how corruption is a spreading cancer ravaging entire nations.

5 Ibid.

6 Ibid at p.172.

7 Ibid at p.173.

8 Mendes, supra note 1 at p. 178.


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As a spreading disease corruption has a dreadful effect on the economies of countries and their

political systems. Corrupt practices allow cheap and overpriced infrastructure to replace long-

lasting, profitable ones. It also erodes the rule of law and people’s belief in democratic

government. “Many experts say the global toll of corruption, in both lives and money, exceeds

that of terrorism9”. Even in a place like Nigeria where a violent uprising has claimed the lives of

thousands, “corruption consistently leads security in public surveys as the most serious problem

facing the country10

”. The World Bank asserted that “[m]uch of the world's highest-value

corruption could not happen without institutions in wealthy nations: the firms that give large

bribes, the financial institutions that accept laundered money and the lawyers and accountants

who facilitate corrupt transactions11

”.

In order to assess the threat caused by this “cancer” called corruption, we will discuss the

economic and political instabilities it generates, the international initiatives led by different

stakeholders to fight this disease, to finally analyse the Canadian initiative through the

Corruption of Foreign Public Officials Act, Canada's Foreign Anti-Bribery Law.

1 - THE ECONOMY OF COUNTRIES:

As describe by the World Bank, “macroeconomic stability” is threatened by loss of government

revenue and extreme expenditure. This can occur with corruption in tax and customs divisions,

with debt arising from the lack of scrutiny on behalf of central banks and finance ministries, with

the awarding of contracts to high-cost bidders or in the absence of competitive tendering, and

with the weakening of expenditure control. “Excessive debt may be incurred through "white

9 Evan Dyer, “Foreign bribery cases of new RCMP crackdown”, CBC News (28 December 2014), online:

<http://www.cbc.ca/m/touch/politics/story/1.2878369>. 10 Ibid. 11 The World Bank, “Anti-Corruption”, (28 March 2016), online: <http://www.worldbank.org/en/topic/governance/brief/anti-

corruption> [World Bank 2016].

http://www.worldbank.org/en/topic/governance/brief/anti-corruption

http://www.worldbank.org/en/topic/governance/brief/anti-corruption


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elephant" investment projects that owe their origin, in part, to bribes12

”. Corrupt transactions,

fraud in financial institutions have a detrimental effect on the macroeconomic stability of the

country deterring foreign investors from investing in the corrupt country and encouraging tax

evasion due to lack of trust13

. The economic productivity is undermined because of the unceasing

attention demanded of business by corrupt official. The public as well as foreign investors are

denied the advantages of a competitive market place because competition is becoming much

more focused on the highest bribe, thus eroded by the practice of corruption. The poor bear in

particular the disastrous effects of macroeconomic instability as reported by the World Bank:

“[w]hen access to public goods and services requires a bribe, the poor may be excluded. Given

their lack of political influence, the poor may even be asked to pay more than people with higher

incomes14

”. In Paraguay for instance, the poor pay 12.6% of their earnings to bribes whereas

high-income households pay 6.4%15

. The equivalent numbers in Sierra Leona are 13% and 3.8%.

“Every stolen dollar, euro, peso, yuan, rupee, or ruble robs the poor of an equal opportunity in

life16

”. The shift in government priorities correlated with corruption dampens spending on

services such as health, essential infrastructure, and education, with critical effect on the

country’s wellbeing. As the World Bank stated, when corruption creates inferior public services,

“the poor lack the resources to pursue "exit" options such as private schooling, health care, or

power generation17

”. The impact of corruption is also detrimental to small businesses, due to

limited consumption, lack of bargaining powers and influence to contest requests for bribes and

unlawful solicitations, scarcity of resources and smaller profit margins to comply with such

payments. Therefore, small enterprises, in certain countries, cannot always evade paying bribes

12 World Bank 97, supra note 3 at p.18. 13 Ibid. 14 Ibid at p.19. 15 World Bank 2016, supra note 11. 16 Ibid. 17 World Bank 97, supra note 3 at p.19.


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or other unofficial payments. The outcome of refusing to engage in corrupt practices may put a

small enterprise out of business18

.

The disastrous effects of corruption threaten the economic stability and political stability as well.

The following section discusses the devastating consequences of corruption on the political

system of countries.

2-THE HAZARDS OF CORRUPTION ON POLITICAL STABILITY OF COUNTRIES:

Corruption is a threat for “the stability and security of societies, undermining the institutions and

values of democracy, ethical values and justice and jeopardizing sustainable development19

”.

Once corruption transforms a state into a ‘weak’ country, the stage is then set for its eventual

collapse by the outbreak of conflicts. How can corruption upset political stability of a state?

Three manifestations can be detected: (1) corruption can increase calls for political changes, (2)

hinder conflict resolution mechanisms eroding the confidence in the rule of law as well as (3)

lead to rigged elections jeopardizing democracy.

Corruption can increase calls for political change: Corruption can exacerbate protests and

calls for political change throughout widespread support for violent political change: coup d’état.

According to the United Nations Office for West Africa (UNOWA) “actual or even perceived

massive corruption” is considered to be as one of the factors that aggravates “the vulnerability of

states to coup d’état and render a coup almost unavoidable20

”. Starting with the overthrow of the

regime in Togo in January 1963, West African countries by the end of 2004 had witnessed

18

United Nations Industrial Development Organization and the United Nations Office on Drugs and Crime,

“Corruption prevention to foster small and medium-sized enterprise development: Providing anti-corruption

assistance to small businesses in the developing world”, Vol I, Vienna 2007, p.9, online:

<https://www.unodc.org/documents/corruption/Publications/2012/UNIDO-

UNODC_Publication_on_Small_Business_Development_and_Corruption_Vol1.pdf>. 19

United Nations Convention against Corruption, 9 December 2003, A/58/422 at 1, (entered into force 14

December 2005) [UNCAC]. 20

Ahmedou Ould-Abdallah, “Life after State House: Addressing Unconstitutional changes in West Africa”,

UNOWA, Issue Papers (March 2006), at p.15, online: http://www.agora-

parl.org/sites/default/files/addressing_unconditional_changes_in_africa.original.pdf [Ahmedou Ould-Abdallah].

http://www.agora-parl.org/sites/default/files/addressing_unconditional_changes_in_africa.original.pdf

http://www.agora-parl.org/sites/default/files/addressing_unconditional_changes_in_africa.original.pdf


6

“forty-four successful military-led coups, forty three…bloody failed attempts, eighty two

reported group plots… and as many as seven terrible civil wars21

”. However, in the majority of

cases those who brought down the ‘corrupt’ regimes were even more corrupt than their

predecessors, and had in turn been removed from office by another coup d’état. Sierra Leone

provides the right example for the relation between corruption and political instability. Sierra

Leone had been the battle ground for violent conflicts between 1991 and 2002. As described by

David Keen, Sierra Leone corrupt politicians plotted with smugglers to deprive the country of

significant funds intended for development22

. Keen reported a study by Care International in

2002 asserting that “contrary to the popularly held view that ‘diamond’ was the root cause of the

war, more evidence point…to corruption23

”. With increasing corruption “poverty and bad

governance” surged while the “corresponding need for food and security, justice, and the

creation of democratic mechanism capable of protecting the rights of ordinary citizens” ignored.

Anger mounted at corruption in Sierra Leone and “some [insurgents] seem to have concluded

that in an unfair system the only rational course was to grab a piece of the good life [by force]24

”.

Once the conflict began corruption was fuelling its existence. Corruption in the army weakened

the few units who confronted the insurgents25

. Some corrupt soldiers even took bribes from

rebels in return of their releases26

.

Corruption hinders conflict resolution mechanisms and undermines the rule of law: As stated

by Paul Dewar, Conflict minerals yield up to US$180 million per year for armed group “keeping

some militias in business” and he added that “up to 40% of those working in the mines are

21

Ibid. 22

Keen, David, Conflict and Conclusion in Sierra Leone, (2005) Palgrave: New York, at p.52 [Keen]. 23

Ibid at p. 64 24

Ibid. 25

Ibid at p.83. 26

Ibid at p.89.


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children, who are exploited and abused. They then become prime targets for recruitment by

armed groups27

”. A state is supposed to settle conflicts arising on its soil through legitimate

public forums and mechanisms for peaceful debate. Corruption hinders conflict resolution

mechanisms, leading to the use of violence instead of resorting to courts and administrative

procedure to resolve disputes. The excessive use of violence as a mean for conflict settlement

will urge people to challenge the state legitimacy through violence. As summarized by the

OECD, “disappointed citizens might turn away from the state (…) or stand up against what they

perceive to be the corrupt political and economic elites28

”. Amnesty International reported that

impunity in both Guatemala and Canada has perpetuated state and corporate violence against

communities and individuals resisting mining projects, resulting in murders, assassination

attempts, rapes, land grabs, displacements and other forms of violence that were also prevalent

during Guatemala’s bloody internal conflict29

.

In a state where rule of law reigns, its citizen benefit from an equal standing under the law

regardless of their political affiliation, social status, economic power, or ethnic background. The

OECD asserted that “[r]ules and regulations are circumvented by bribes30

”. Arnone and Borlini

elaborate on the impact of corruption on the rule of law by asserting that corrupt practices

undermine the basic foundation of both, the representative mechanisms, critical to the separation

of powers, and human rights. “Since corruption generates discrimination and inequality, this

relationship [between human rights and government corruption] ... bears on civil and political

rights”. They add that for example corruption “strengthens the misappropriation of property in

27

Canada, Bill C-486, An Act respecting corporate practices relating to the extraction, processing, purchase, trade

and use of conflict minerals from the Great Lakes Region of Africa, 2nd Sess, 41th Parl, 2014, Historical,(defeated,

as of Sept. 24, 2014). Online: <https://openparliament.ca/bills/41-2/C-486/>. 28

OECD, The rationale for fighting corruption, CleanGovBiz, (2014) at p.4, online:

https://www.oecd.org/cleangovbiz/49693613.pdf . 29

Amnesty International, Guatemala: Mining in Guatemala: Rights at Risk, London (2014) at p.7. 30

Supra note 28 at p. 4.

https://www.oecd.org/cleangovbiz/49693613.pdf


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violation of legal rights ... it likely leads to the rise of monopolies which either wipe out or

gravely vitiate freedom to trade31

”.

Therefore, corruption leads to the breakdown of the rule of law, which encompasses the

processes, norms, and structures that hold the population and public officials legally responsible

for their actions and impose sanctions if they violate the law. "The problem in Guatemala is not

the laws, per se, nor the structure of the legal system itself, but rather impunity," said Grahame

Russell, director of the Canadian and U.S.-based NGO Rights Action and he added what

Guatemala requires is "a fundamental transformation in its lack of democracy, its lack of rule of

law, and its corruption32

".

Least but not last corruption lead to rigged elections jeopardizing democracy: The state is

hijacked by the ruling elite through the practices of corruption. In countries where corruption and

impunity are becoming the norm, people seek political office primarily with the intention to gain

control of the state’s resources. In that case political battle among candidates is reined by

unhealthy competition that may lead to the use of violence. Access to public offices through fair

and free elections is virtually absent as the election process is usually rigged through vote buying

and bribing judges to settle electoral conflicts in favour of the ruling elite. Thus, corrupt practices

induce a government that had lost the trust of its citizens to remain in power. Substantial and

widespread corruption or manipulations by ruling elites, defiance of ruling elites to transparency,

accountability and illegitimate transactions within the population, are among the factors that

trigger state failure and the collapse of democracy33

.

31 Marco Arnone & Leonardo S. Borlini, Corruption: Economic Analysis and International Law (Cheltenham, UK; Northampton,

US: Edward Elgar Publishing Limited, 2014) at 170–171. 32 Cyril Mychaljeko, Guatemalan Government, Canadian Mining Industry Responsible For violent Conflicts, October 8, 2014,

online: http://www.rightsaction.org/action-content/guatemalan-government-canadian-mining-industry-responsible-violent-

conflicts. 33 USAID, Corruption Assessment Handbook – Draft Final Report, Washington (8 May 2006) at p.18, online:

<http://www1.worldbank.org/publicsector/anticorrupt/USAIDCorAsmtHandbook.pdf >.


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A better understanding of the economic, political and social costs of corrupt practices has

impelled recent international initiatives to combat corruption, promote transparency and

consolidate accountability. The following section will discuss the most important international

initiatives in fighting corruption starting with the American statute, the Foreign Corrupt

Practices Act (FCPA), which was the 1st legislation adopted to combat bribery of foreign

officials in 1977, followed by a discussion of the OECD Convention against foreign bribery, the

UN Convention Against Corruption, the Inter-American Convention Against Corruption, then a

discussion about the efforts exerted by one the most notorious civil society organisations,

Transparency International, in the international fight against corruption. We conclude this

section by discussing the role of a key international financial institution in fighting corruption,

the World Bank.

3-INTERNATIONAL INITIATIVES IN THE FIGHT AGAINST CORRUPTION:

The Foreign Corrupt Practices Act: Prior to 1977, the US was a pioneer in the combat against

foreign bribery by enacting legislation particularly prohibiting the bribery of foreign official. As

professor Mendes said in his book “[t]he emergence of major corporate complicity in bribery and

corruption let the Government of the US to strike back in the form of 1977 Foreign Corrupt

Practices Act34

, with its extraterritorial reach to most of the major [multinational corporations

(MNEs)] in the world through their links with US capital markets35

”. In her paper, Annalisa

Leibold noted that “given the ease with which the U.S. government can bring charges against a

foreign company, coupled with the fact that such charges are usually settled as opposed to

litigated, the FCPA looks more like an international anti-corruption business tax, rather than a

34

Pub L No 95-213, 91 Stat 1494 (1977) (codified as amended at 15 U.S.C. §§ 78m(b), (d)(1), (g) to (h), 78dd-1, 78dd-2, 78dd-

3, 78ff), amended by Foreign Corrupt Practices Act Amendment of 1988, Pub L No 100-418, 102 Stat 1107, 1415 (1988)

(codified at §§ 78dd-1 to 78dd-3, 78ff), and the International Anti-Bribery and Fair Competition Act of 1998, Pub L No 105-366,

112 Stat 3302 (1998) (codified at §§ 78dd-1 to 78dd-3, 78ff) [FCPA]. 35

Mendes, supra note 1 p.211.


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domestic criminal law with limited extraterritorial applications36

”. The FCPA was passed in

1977 as a response to the so-called Lockheed scandal, in which executives of the American

aircraft manufacturer were found to be engaged in bribing high-ranking public officials in

several countries, among them, Japan, the Netherlands and Italy, while Lockheed required

financial support from the American government. A report from the House of Representatives

insisted that the legislation was crucial due to widespread bribery admitted by companies37

. An

anti-corruption statute was believed that it would “help U.S. corporations resist corrupt

demands38

”. The FCPA forbids the payment, offer of payment, or gift to a foreign official in

order to obtain or retain business in that country39

. This Act provides for criminal prosecution by

the Department of Justice. And if a corporation is publicly traded in the US, the FCPA provides

for civil prosecution by the Securities and Exchange Commission (“SEC”). “In 2010, the SEC's

Enforcement Division created a specialized unit to further enhance its enforcement of the FCPA,

which prohibits U.S. companies from bribing foreign officials for government contracts and

other business40

”. However, after its enactment, many American corporations claimed a decline

in their business operations arguing that the Act had initiated a competitive disadvantage to their

businesses outside the US41

. The US Commerce Department and several US intelligence

agencies reckoned that in 1994-1995, US businesses lost US$11 billion in potential revenue in

36

Annalisa Leibold, The FCPA is a new international business tax on non U.S. companies, January 23, 2015,

online: <http://www.fcpablog.com/blog/2015/1/23/paper-the-fcpa-is-a-new-international-business-tax-on-non-

us.html>. 37

US, House of Representatives, Unlawful Corporate Payments Act of 1977 (HR Doc No 95-640) (1977) (“More than 400

corporations have admitted making questionable or illegal payments. The companies, most of them voluntarily, have reported

paying out well in excess of $300 million in corporate funds to foreign government officials, politicians, and political parties.

These corporations have included some of the largest and most widely held public companies in the United States; over 117 of

them rank in the top Fortune 500 industries”). 38

Ibid. 39

Sara Seck, “Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance?” (2008) 46

Osgoode Hall Law Journal 565 at 569. 40

“SEC Enforcement Actions: FCPA Cases” available online: < http://www.sec.gov/spotlight/fcpa/fcpa-

cases.shtml>. 41

Lori Ann Wanlin, “The Gap Between Promise and Practice in the Global Fight Against Corruption” (2006) Asper

Rev of Int'l Bus and Trade Law 209 at para 5.

http://www.sec.gov/news/press/2010/2010-5.htm


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contrast to their counterparts engaged in bribing foreign officials42

. Subsequently the American

government began a strong movement to convince other governments and international

organizations to carry out measures identical to the FCPA.

“The focus of the attention in this regard was not the United Nations, where treaty obligations

have become diplomatic decorations”, as professor Mendes stated. Instead, as explained by

professor Mendes “the industrialised world gave the mandate to the OECD, the club of rich

industrialised nations of the world, together with some aspiring developing nations43

”.

OECD Convention on Combating Bribery of Foreign Public Officials in International

Business Transactions44

: Founded in 1968, the OECD is an international economic organisation

whose main mission is “to promote policies that will improve the economic and social well-

being of people around the world45

”. In May 1997 the OECD Ministerial meeting called for the

negotiation of a binding covenant to deal with the bribery of foreign public officials, and urged

Member States to propose legislative schemes to their national legislature in order to prohibit

such bribes and pursue their enactment by the end of 199846

. By June 21, 1997, leaders of the G-

7 countries, including PM Chrétien, released a statement in Denver advocating this approach and

timetable for the OECD. “To date, 41 states have ratified the OECD Anti-Bribery Convention,

including all 34 member states of the OECD and seven non-member states47

”. The OECD Anti-

Bribery Convention came into effect in February 15, 1999. Since then more than 300 individuals

42 Patrick Glynn, Stephen J Kobrin & Moisés Naím, “The Globalization of Corruption” in Kimberly Ann Elliott, ed, Corruption

and the Global Economy (Washington: Institute for International Economics, 1997) at p.18. 43 Mendes, supra note 1 at p. 211. 44 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December

1997, DAFFE/IME/BR (97)20, (entered into force on 15 February 1999). 45 OECD, The Organisation for Economic Co-operation and Development, online: OECD.org <http://www.oecd.org/about/>. 46 Canada, Department of Justice, The Corruption of Foreign Public Officials Act: a Guide, (Ottawa: Communication and

Executive Services Branch, 1999) at 1 [CFPOA Guide]. 47 Global Affairs Canada, Canada’s Fights against Foreign Bribery: Fifteenth Annual Report to Parliament: Implementation of

the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and the Enforcement

of the Corruption of Foreign Public Officials Act, (Ottawa: Global Affairs, September 2013 - August 2014) online:

http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/corr-

15.aspx?lang=eng#oecd.

http://www.oecd.org/about/membersandpartners/list-oecd-member-countries.htm

http://www.oecd.org/about/

http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/corr-15.aspx?lang=eng#oecd

http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/corr-15.aspx?lang=eng#oecd


12

and more than 100 entities were criminally prosecuted and held liable for foreign bribery in over

one-third of the State Parties. More than 80 of the penalised individuals were sent to prison for

engaging in foreign bribery in 1/3 of these State Parties. Around 400 investigations are still in

progress in over ½ of these State Parties48

.

The United Nations had conformed to the OECD’s approach through declarations, in 1996 and

1998, condemning bribery and corruption of public office holders. “In December 2004, the UN

General Assembly also adopted the wide-ranging but as yet unproved Convention against

Corruption49

”.

The United Nations Convention Against Corruption (UNCAC)50

: It is considered to be the 1st

global in-depth covenant on corruption. Before the adoption of the UNCAC, it had been argued

that states should consider writing passive bribery legislations to complement the already

existing provisions against supply-side bribery51

. The UNCAC was signed by 111 states in

Mérida, Mexico in December 9, 2003; by 2013 the number of signatories had increased to 16752

.

It is noteworthy that Kenya, experiencing corruption and economic crimes, became the first

country to sign and simultaneously ratify the UNCAC committing itself to enhancing the fight

against corruption through the enactment of the necessary legislative, institutional and policy

framework required to toughen public accountability, transparency and integrity53

.

According to the 1st article, the objectives of UNCAC are (1) to foster and enhance procedures to

preclude and fight corruption more efficiently and effectively; (2) to foster, enable and

48 Ibid. 49 Mendes, supra note 1 at p. 212. 50 UNCAC, Supra note 19. 51 Steven R. Salbu, Extraterritorial Restriction of Bribery: A Premature Evocation of the Normative Global Village, 24 YALE J.

INT’L L. 233, 241 (1999) at 678; Guy Stessens, The International Fight Against Corruption, 72 REVUE INT’L DE DROIT

PENAL 892, 894 (2001) (Belg.) at 903 52 Mendes, supra note 1 at p.212. 53 Kenya

Kenya, Department of Justice, National Cohesion and Constitutional Affairs and Kenya Anti-Corruption Commission, “Kenya:

UN Convention against Corruption: Gap Analysis Report and Implementation Plan”, (2009), at p. 3, online: <

http://www.eacc.go.ke/docs/kenya-uncac-gap-analysis-report.pdf>.

http://www.eacc.go.ke/docs/kenya-uncac-gap-analysis-report.pdf


13

corroborate international cooperation and technical assistance in the preclusion of and combat

against corruption, including in asset recovery; (3) to foster integrity, liability and appropriate

supervision of public affairs and public property. The UNCAC endeavours to combat corrupt

practices in both the public (art.7) and private sectors (art.12). Its preventive measures

encompass the creation of anticorruption bodies, improved transparency in campaign and

political party funding, safety measures to guarantee effective and transparent management and

provision of public goods and services, codes of conduct and financial disclosure for public

officials, and transparency as well as liability in public financial transactions and in crucial fields

such as public procurement and the judiciary. The UNCAC also urges the civil society and the

general to participate in the fight against corruption. The UNCAC exceeds other instruments of

its type in that it does not only criminalize bribery of national public officials (art.15), bribery of

foreign public officials and officials of public international organizations (art.16) and

embezzlement (art.17). The UNCAC also criminalizes trading in influence (art.18), money

laundering (art.23), concealment of any profits resulting from corrupt acts (art.24), obstruction of

justice in the prosecution of such acts (art. 25). The UNCAC also lays emphasis on mutual legal

assistance between State Parties in collecting and transferring evidence and calls for signatories

to cooperate in identifying, freezing, seizing and confiscating the proceeds of corruption (art.

46). The most important breakthrough of the UNCAC was the asset recovery provisions in

chapter V. These stipulations will enable developing states to recuperate assets illegally acquired

from their coffers. The question becomes: how did State Parties implement the UNCAC?

In a Summary of the state implementation of the UNCAC, it has been established that the

Convention have led many State parties to adopt statutory amendments and structural changes

which have produced legislative and institutional reforms and enforcement, as well as potent


14

frameworks for extradition, mutual legal assistance and law enforcement cooperation54

.

However, after 13 years and until the time of writing this paper, we couldn’t point out a single

tangible achievement on the ground in terms of actual cases or convictions in light of the

UNCAC.

There have been other noteworthy regional initiatives to fight corruption. In March, 1996, the

Organization of American States (OAS) adopted the Inter-American Convention against

Corruption in Caracas, Venezuela.

The Inter-American Convention against Corruption55

: This covenant contains a set of

preventive measures similar to the OECD Convention. It criminalizes certain corrupt practices as

transnational bribery (art. VIII) and illicit enrichment (art. IX). It encompasses a series of articles

that strengthen cross border cooperation between signatories in areas such as mutual legal

assistance and mutual technical cooperation (art. XIV), extradition (art. XIII) as well as

identification, tracing, freezing, seizure and forfeiture of property or proceeds obtained, derived

from or used in the commission of acts of corruption among others (art. XV).

A number of civil society organisations are also leading the international combat against

corruption. Among the best known is Transparency International.

Transparency International (TI): TI was established in 199356

. It has been a pioneer in shifting

the topic of corruption “from a taboo topic to a talking point57

”. TI’s mission is to “stop

corruption, and promote transparency, accountability and integrity at all levels across all sectors

54

United Nations, Summary of the state of implementation of the United Nations Convention against Corruption:

criminalization, law enforcement and international cooperation, (19 August 2015), online:

https://www.unodc.org/documents/treaties/UNCAC/COSP/session6/V1505920e.pdf. 55

The Inter-American Convention against Corruption, 29 March 1996, S. Treaty Doc. No. 105-39, (entered into

force 6 March 1997). 56

Transparency International, “Our History: 2013 20 years, more to come” online: Transparency International

<http://www.transparency.org/whoweare/history>. 57

Transparency International, “Missions, Visions and Values”, online: Transparency International

https://www.transparency.org/whoweare/organisation/mission_vision_and_values/.

https://www.unodc.org/documents/treaties/UNCAC/COSP/session6/V1505920e.pdf

https://www.transparency.org/whoweare/organisation/mission_vision_and_values/


15

of society58

”. In 1994, the OECD members adopted TI’s recommendations to criminalize foreign

bribery59

. TI involves 100 national chapters worldwide who cooperate with partners in

government, business and civil society to draw effective measures in to promote the anti-

corruption fight60

. In its annual report – “The Bribe Payers Index (BPI)” – TI rates the wealthiest

states in the world by the susceptibility of their businesses to participate in bribery across border.

These reports also describe the worst offenders. To reach the final index results, TI relies on

information provided by senior business executives from developed and developing states61

.

Each state is assigned a score varying from 0 to 10. The score ten shows that a country’s

domestic businesses never participate in foreign bribery. The score zero shows that a country’s

corporations are always participating in foreign bribery62

. TI’s work remains essential for the

enactment of binding anti-bribery statutes in countries like Russia, China, India, which all

require such legislation63

. TI’s monitoring procedures present effective awareness of the

guidelines that companies should put into operation in order to conform to emerging universal

Corporate Social Responsibility (CSR) corruption standards64

. TI’s reports compel governments

from all regions to be aware of corruption. A low ranking reveals an unfair system for awarding

contracts, narrow opportunities to grow a competitive private sector and perpetual reputational

58

Ibid. 59

Transparency International, “Our History: 1994 Going Global”, online: Transparency International

<http://www.transparency.org/whoweare/history>. 60

Transparency International, “Our Organisation: Overview”, online: Transparency International

<http://www.transparency.org/whoweare/organisation>. 61

Transparency International, “Bribe Payers Index: First Launched in 1999, the Bribe Payers Index Evaluates the

Supply Side of Corruption – The Likelihood of Firms from The World’s Industrialised Countries to Bribe Abroad”,

online: Transparency International <http://www.transparency.org/research/bpi/overview>. 62

Transparency International, “Bribe Payers Index Report 2011”, online: Transparency International

<http://www.transparency.org/bpi2011/results >. 63

Margot Cleveland et al, “Trend in the International Fight Against Bribery and Corruption” (2009) 90 Journal of

Business Ethics 199 at 222. 64

Adefolake Adeyeye, “Universal Standards in CSR: Are We Prepared?” (2011) 11:1 Corporate Governance 107 at

114.

http://www.transparency.org/whoweare/organisation

http://www.transparency.org/whoweare/organisation

http://www.transparency.org/research/bpi/overview

http://www.transparency.org/research/bpi/overview


16

and financial risk for investors65

.

It is important to note that those international initiatives are supported by an important

international financial institution, the World Bank.

The World Bank initiatives against corruption: Considerable number and variety of WB and

World Bank Institute (WBI) surveys have been performed and provide valuable sources of hard

data. The WB became a partisan to anti-corruption initiatives in 30-40 states66

. The WB’s

approach to anti-corruption measures calls for action on 4 main fronts: (1) assisting states that

require support in combating corruption; (2) considering efforts exerted in fighting corruption as

a key focus of the WB’s inquiry and lending decisions for a state; (3) participating in

international initiatives combating corruption; and (4) striving to preclude fraud and corrupt

practices in Bank-financed projects67

. The WB’s efforts in fighting corruption regarding its own

landing portfolio are led by an independent unit, the Department of Institutional Integrity (INT),

which investigates fraud and corruption complaints in Bank-financed projects as well as claims

of staff-misconduct, and then reports its finding to decision makers i.e. the Bank’s Sanction

Committee in order to take action68

. In 201569

the INT reviewed and initiated 323 preliminary

inquiries concerning 86 states related to fraud, corruption and collusion in WB Group-financed

activities. Of those inquiries, 99 were selected for full investigation and investigators closed 81

of them. Out of the 88 external cases under investigation at the end of 2015, 65 involved

65

Transparency International, “How do Companies from your Country Behave Abroad?”, online: Transparency

International <http://www.transparency.org/bpi2011/results>. 66

Canadian International Development Agency, “Anti-Corruption Programming: Question and Strategies”, by

Bruce M. Bailey, June 2000, p. 22, online:

<http://www.acdicida.gc.ca/INET/IMAGES.NSF/vLUImages/HRDG2/$file/EngQ&S.pdf >. 67

World Bank Global Issues Seminar Series, “The Cancer of Corruption”, by Vinay Bhargava, at p.8, online:

http://siteresources.worldbank.org/EXTABOUTUS/Resources/Corruption.pdf . 68

Ibid. 69

The World Banks Integrity Vice Presidency, “Annual Update: Fiscal year 2015”, at p.35 online:

http://pubdocs.worldbank.org/pubdocs/publicdoc/2015/12/136451449168835691/INT-FY15-Annual-Update.pdf .

http://www.transparency.org/bpi2011/results

http://siteresources.worldbank.org/EXTABOUTUS/Resources/Corruption.pdf

http://pubdocs.worldbank.org/pubdocs/publicdoc/2015/12/136451449168835691/INT-FY15-Annual-Update.pdf


17

allegations of corruption. To further promote corporate governance, as of September 2010, the

World Bank Group’s (WBG) default sanction is debarment with conditional release. In the fiscal

year of 2015, 71 firms and individuals were sanctioned by the WBG, 65 of which were debarred

for periods ranging from 6 months to 13 years70

. The WB’s work with sanctioned corporations

through the Integrity Compliance Office (ICO) to establish and develop their integrity

compliance programs is supporting large and small enterprises to make integrity and efficient

risk management a fundamental part of their activities. At the end of 2015, 47 corporations

debarred by the WBG were strongly involved with the ICO. Seven corporations had their

debarment lifted this year, having instigated appropriate compliance systems and satisfying other

conditions of their sanction71

.

In the midst of all these initiatives in fighting corruption, how did Canada react? How well is

Canada enforcing its Anti-Bribery provisions? Is it prevailing in the fight against corruption?

The following sections will discuss the Canadian fight against foreign bribery by zeroing in on

the Corruption of Foreign Public Official Act (CFPOA).

4-CANADA’S FIGHT AGAINST FOREIGN BRIBERY: THE CFPOA

The Canadian federal government had sought to prevent and sanction domestic corruption

through a federal statutes, parliamentary rules and administrative provisions. The Criminal Code

contained provisions which prohibited bribery, fraud on the government and influence peddling,

fraud or breach of trust in connection with duties of office, municipal corruption, selling or

purchasing office, influencing or negotiating appointments or dealing in offices, fraud,

laundering proceeds of crime and secret commissions. Internationally, Canada has joined the

fight against corruption through various international forums, including the OECD, the OAS and

70

Ibid at p. 2. 71

Ibid.


18

the UN. Canada ratified the UN Convention against Corruption in May 31, 2007. It had also

ratified the OECD convention on December 17, 1998, which triggered this covenant’s entry into

force on February 15, 1999. On February 14, 1999, the Corruption of Foreign Public Officials

Act (CFPOA)72

entered into force. Section 3(1) of the Act deals with the offence of bribing a

foreign public official and represents Canada’s legislative contribution to the international

initiative to fight foreign bribery. It criminalizes those who, “in order to obtain or retain an

advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a

loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the

benefit of a foreign public official73

”. The CFPOA provisions apply when the offence is

committed in whole or in part in the Canadian territory, or when the perpetrator is a Canadian

entity, regardless of whether the entity acted directly or through an agent or a third party74

.

The enforcement of CFPOA resulted in one prosecution between 1999 and 2011, in R v Watts

(Hydro-Kleen)75

. In contrast, 227 cases were reported by the US in 2011 and 169 cases in 2010;

135 cases were reported by Germany in 2011 and 117 cases in 201076

. This embarrassing record

led TI and the OECD Working Group on Bribery in 2012 to criticize Canada’s weak role in

fighting foreign bribery by its insufficient implementation and enforcement of the OECD

Convention77

. As a response, Canada introduced Bill S-14 on February 5, 2013, to amend the

CFPOA and broaden its scope. It received Royal Assent on June 19, 2013. Six significant

amendments were included to the CFPOA. In the previous version of the Act the definition of

“business” was restricted to “any business, profession, trade, calling, manufacture or undertaking

72

SC 1998, c 34 [CFPOA]. 73

Ibid at 3(1). 74

Susan M Hutton & Paul Beaudry, “Canada Takes Aim at Foreign Corruption” (2011) at 6, online: Stikeman Elliot

<http://www.stikeman.com/2011/images/core/ForeignCorruption_ALM.pdf>. 75

[2005] AJ No 568 (QB) [Hydro-Kleen]. 76

Fritz Heimann, Gillian Dell & Kelly McCarthy, Progress Report 2011: Enforcement of the OECD Anti-Bribery

Convention, 4th ed (2011), [2011 Progress Report]. 77

Ibid.

http://www.stikeman.com/2011/images/core/ForeignCorruption_ALM.pdf


19

of any kind carried on in Canada or elsewhere for profit,” therefore, not taking into account

charities78

. The 1st amendment of the Act removed the “for profit” requirement. This ensures that

the Act applies to all entities whether they are seeking profit or not79

. The 2nd

amendment

brought to the CFPOA raised the maximum sentence of imprisonment from 5 to 14 years80

. The

3rd

amendment eliminated an exception that had been in operation for the so-called “facilitation

payments”. However clause 5 of Bill S-14 stated that the abolition of the facilitation payment

exception will not take effect on Royal Assent but on the day to be fixed by order of the

Governor in Council81

. In contrast, the US kept the facilitation payment exception in the FCPA82

.

The 4th

amendment added in the Act a new offence for falsifying or concealing books or records

in order to bribe or conceal bribery of a foreign public official83

. The 5th

amendment, and

perhaps the most crucial one, added by Bill S-14 is the “nationality jurisdiction”84

as a basis for

Canadian courts to exercise jurisdiction over persons accused of violating the Act. This means

that under the amended CFPOA, two different regimes will apply depending on the

nationality/the residency of the perpetrator: (1) Canadian courts have jurisdiction over all

Canadian nationals and permanent residents committing acts, in Canada or abroad, against the

CFPOA; thus, they are captured under clause 5(1) of the Act on the mere basis of their

nationality; and (2) for a Canadian court to have jurisdiction over foreign nationals under the

78

CFPOA, supra note 72. 79

Canada, Bill S-14, An Act to amend the Corruption of Foreign Public Officials Act, 1st Sess, 41th Parl, 2013, cl

2(3) (Assented to 19 June 2013). 80

Parliament of Canada “Legislative Summary of Bill S-14: An Act to amend the Corruption of Foreign Public

Officials Act”, by Robin MacKay (28 February 2013) at p.6: online: Parliament of Canada

http://www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=s14&Parl=41&Ses=1#a10. 81

Ibid. 82

FCPA , supra note 34 at s.4: this Act stipulates that it does not apply to any “facilitating or expediting payment to

a foreign official, political party, or party official the purpose of which is to expedite or to secure the performance of

a routine government action by a foreign official, political party or party official”.) 83

Supra note 80 at p 6. 84

Ibid at p.7.

http://www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=s14&Parl=41&Ses=1#a10


20

FCPA, it must have jurisdiction over both the crime (through a substantial link to Canada85

) and

the person (by such person being physically present in Canada86

). The 6th

amendment included in

the Act asserted that officers of the RCMP (or a person designated as a peace officer under the

Royal Canadian Mounted police Act) have the exclusive authority to prosecute under the

CFPOA87

.

5-IS CANADA PREVAILING IN THE BATTLE AGAINST FOREIGN BRIBERY?

When Bill S-14 received Royal Assent on June 19, 2013, Minister John Baird explained the

rational for the amendments by asserting that they were aimed to “further deter and prevent

Canadian companies from bribing public officials […] and help ensure that Canadian companies

continue to act in good faith in the pursuit of freer makers and expanded global trade88

”.

However there has been limited jurisprudence in Canada under the CFPOA. The 1st decision

under was in January 10, 2005, R v Watt (Hydro-Kleen)89

. The case concerns bribes paid by

Hydro Kleen Group Inc. an Alberta-based company, to a U.S. immigration officer who worked

at the Calgary International Airport. He pleaded guilty in July 2002, to accepting bribes from the

Canadian company. Hydro Kleen had bribed this officer to facilitate the entrance of its

employees into the U.S. and to delay the U.S. entrance of competitors’ employees. The

immigration official was paid approximately CAD$ 30,000 as bribes. Unfortunately, this case

does not offer specific guidelines regarding the boundaries of the offence since the officer

pleaded guilty. He received a six month sentence and was subsequently deported to the United

States. The company entered a guilty plea under section 3(1)(a) of the CFPOA and was ordered

85

Libman v The Queen, [1985] 2 SCR 178, at para 74. 86

Chowdhury v H.M.Q, 2014 ONSC. 87

Supra note 80 at p.7. 88

Canada, Global Affairs “Strengthening Canada’s Fight Against Foreign Bribery”, (5 February 2013) online:

<http://www.international.gc.ca/media/aff/news-communiques/2013/02/05b.aspx?lang=eng>. 89

R v Watts, [2005] AJ No 568 (Alta QB).


21

to pay a fine of only $25,000. The 2nd

case prosecuted under the CFPOA is R v Niko Resources

Ltd90

. On Jun 24th

, 2011, Niko Resources Ltd, a publicly-traded company based in Calgary,

Alberta, pled guilty to a charge of bribery under the CFPOA in connection with events

surrounding a blast that occurred at Niko’s natural gas field in Bangladesh. At the time of the

explosion Niko was negotiating a gas pricing contract with the Bangladeshi government. The

specific conduct in question concerned 2 sets of benefits offered through Niko’s local subsidiary

to the Bangladeshi Minister of Energy: (1) a $190,984 SUV vehicle and (2) payment of a trip to

Calgary for business and on the way a side trip to New York and Chicago to visit relatives (the

total value of which benefits were in the range of $196,000). These sums were found to have

constituted “bribes” within the meaning of the CFPOA. The company was fined nearly $9.5

million and was placed under a probation order for 3 years to ensure that audits were completed

and to assess the company's compliance with the CFPOA. The case was perceived as the first

significant prosecution under the CFPOA. The 3rd

case prosecuted under the CFPOA is R v

Griffiths Energy International91

. Griffiths Energy International Inc. (GEI) was a small privately

held oil and gas company based in Calgary. Mr. Griffiths and one of his partners, Naeem Tyab,

spent 6 months in 2008 establishing contacts in Chad’s embassy and investigating about oil and

gas leases in the African country. The pair, together with Parvez Tyab, set up Griffiths Energy,

which contemplated bribing Chad’s ambassador to Canada in September, 2009. Instead, funds

were paid to a corporation ran by the ambassador’s wife, according to the agreed statement of

facts filed in court. GEI reported these irregularities and admitted to the bribery. The company

pleaded guilty on January 22, 2013 to one count of bribery under the CFPOA and was sentenced

on January 25, 2013 to pay a total penalty of $10,350,000. The 4th

case prosecuted under the

90

101 WCB (2d) 118, 2011 CarswellAlta 2521 (WL Can) (ABQB) [Niko Resources]. 91

[2013] AJ No 412 (ABQB) [Griffiths Energy].


22

CFPOA is R v Karigar92

. In this case, Nazir Karigar, a paid agent for a group of Canadian

companies, arranged bribes to public officials in India to win a $100 million security contract

from Air India. Hackland J. of the Ontario Superior Court in Ottawa convicted Karigar in August

2013 for a conspiracy that dates back to 2005-2006. Hackland J. expressly mentioned that

“[t]here would appear to be no jurisprudence interpreting the CFPOA. This is the first

prosecution under this Act which has proceeded to trial93

”. After analysing the elements of the

offence in the Act, he held that the actus reus of the offence is “the agreement to pursue unlawful

objectives” and he inferred that “the use of the term "agrees" imports the concept of conspiracy

into the Act. In doing so, it meets Canada's obligations under the [OECD] Convention to

criminalize conspiracies to give or offer bribes to foreign public officials94

”. Finally he held that

in order to satisfy the actus reus of the offence, the accused need only to believe that a bribe has

been paid to a foreign official, independent of whether or not the bribe was actually paid95

. This

decision was considered a landmark bribery case as it marks the first sentence handed down

against an individual under CFPOA, and the 1st jurisprudence that explained the Act and

established that a conspiracy or an agreement to bribe foreign public officials is in itself a

violation of the CFPOA.

Reviewing the cases above we are of the opinion that Canada had done so little to fulfill its

obligations under the OECD Convention in combatting foreign bribery via the CFPOA;

beginning with the Hydro-Kleen case, involving a corrupt border officer, the outcome was that

the company had to pay $25,000, a sum less than the bribe itself, and no other measure were

taken by the Canadian government in that respect. Then 6 years have elapsed with no

92

[2013] OJ No 3661, 2013 ONSC 5199. 93

Ibid at para 27. 94

Ibid at para 28. 95

Ibid at para 33.


23

convections under the Act. In 2011, TI published a report that criticized Canada for failing to

implement its foreign anti-bribery legislations underlining that the “Canadian legal system and

courts do not handle complex white collar criminal cases very well96

”. This followed, a report

issued by the OECD Working Group on Bribery in March 2011 which concluded that “Canada’s

regime for enforcement of the [CFPOA] remains problematic in important areas97

” As a response

Canada amended the CFPOA through Bill S-14 as discussed earlier. In 2013, the GEI case

surfaced; however the violation of the CFPOA was not discovered by the RCMP. Instead the

GEI new management team presided by CEO Mr. Gary Guidry detected the company’s alleged

bribe, and an internal investigation was conducted98

. Hadn’t Mr. Guidry led his team to further

investigate and report to the RCMP, would they have found out this offence? In our opinion this

self-reporting case could merely mirror Canada’s adherence to the foreign anti-bribery fight.

Thus, we can fairly say that only two basic convictions occurred under the CFPOA, which fail to

show Canada as a lead in fighting corruption. The lax enforcement of the foreign anti-bribery

legislation is further revealed by the SNC-Lavalin case. In April 2013, the WB Group announced

the debarment of SNC-Lavalin Inc. for a period of 10 due to the company’s misconduct

regarding the Padma Multipurpose Bridge Project in Bangladesh, as well as misconduct under

another Bank-financed project99

. According to the WB the SNC, which is one of Canada’s top

engineering firms, was involved in a conspiracy to pay bribes and in misrepresentations when

96

Bruce Cheadle “Canada gets failing grade for lax enforcement of anti-bribery laws”, Thestar.com Business (24

May 2011) online:

http://www.thestar.com/business/2011/05/24/canada_gets_failing_grade_for_lax_enforcement_of_antibribery_laws.

html. 97

Ibid. 98

Brian Hutchinson, “Calgary Oil Company paid $2M Bribe for Access to Oil Fields in Chad, Court Told” National

Post (1 January 2013), online: http://news.nationalpost.com/news/canada/calgary-oil-company-paid-2m-bribe-for-

access-to-oil-fields-in-chad-court-told. 99

The World Bank, “World Bank Debars SNC-Lavalin Inc. and its Affiliates for 10 years” (17 April 2013),

available online: < http://www.worldbank.org/en/news/press-release/2013/04/17/world-bank-debars-snc-lavalin-

inc-and-its-affiliates-for-ten-years>.

http://www.thestar.com/business/2011/05/24/canada_gets_failing_grade_for_lax_enforcement_of_antibribery_laws.html

http://www.thestar.com/business/2011/05/24/canada_gets_failing_grade_for_lax_enforcement_of_antibribery_laws.html

http://news.nationalpost.com/news/canada/calgary-oil-company-paid-2m-bribe-for-access-to-oil-fields-in-chad-court-told

http://news.nationalpost.com/news/canada/calgary-oil-company-paid-2m-bribe-for-access-to-oil-fields-in-chad-court-told


24

bidding for Bank-financed contracts in violent of the WB’s procurement guidelines100

. Despite

referring the matter to the RCMP no conviction had occurred. In 2015 SNC a 2 of its affiliates

were charged with fraud and corruption under the CFPOA in a case related to its operations in

Libya. In December 2015, SNC entered into an agreement with the federal government under

which, SNC will be able to participate in bidding and winning contracts to provide goods and

services to the Canadian government pending on the final result of those charges101

. This

approach with a company that was already blacklisted by the WB, reveals a huge failure on

behalf of the Canadian government in the enforcement of its anti-bribery rules.

Conclusion:

The fight against corruption has not only become more pressing, it has also become more

noticeable as the degree of its influence is growingly apparent. Not only does corruption

bankrupt economies, jeopardize democracy and undermine the rule of law, it nourishes terrorism

and organized crime. These far reaching outcomes clearly show that the war against corruption

cannot be waged at the national level alone. Corruption is without doubt a disease of

international interest as it strikes developed and developing countries alike respecting no

boundaries. All anti-bribery initiatives discussed in this paper are a product of this heightened

consciousness of corruption as a growing and indiscriminate threat. if steps were taken to halt the

trillion dollar scandal reported by the WB, they could free up revenues which, based on the data

from the Lancet Commission on Global Health, would: “Help avert 3.6 million death per year

between 2015 and 2025 in low-incomes countries; Help avert 4.3 million deaths per year

between 2015 and 2025 in lower middle countries, putting the world track to end preventable

100

Ibid. 101

Freshfields Bruckhaus Deringer, “Anti-Bribery and corruption: global enforcement and legislative developments

in 2016”, GI ABC guide 2016 at p .32.

http://www.freshfields.com/uploadedFiles/SiteWide/Campaigns/GI/content/GI%20ABC%20guide%202016.PDF.

http://www.freshfields.com/uploadedFiles/SiteWide/Campaigns/GI/content/GI%20ABC%20guide%202016.PDF


25

child deaths in these countries by 2030102

”. Furthermore, winning the war against corruption in

Sub-Saharan Africa alone would generate revenues to “ [e]ducate 10 million children per year;

[p]rovide antiretroviral drugs (ARVs) for over 11 million people living with HIV/AIDS; Pay

almost 165 million vaccines103

”.

However, on April 2016, the Panama Papers provided detailed information about more than

214,000 anonymous shell companies used for unlawful purposes including sovereign and

individual fraud, drug trafficking and illegal tax evasion104

: it all adds up to a global scandal that

has to be stopped.

To conclude, one should seriously question whether MNE’s particularly in Canada, have the

intention to abide with the Canadian and international initiatives in fighting corruption,

specifically foreign bribery, while they will most certainly face competitive disadvantages in

every bidding against companies from other countries with more lax legal and regulatory

systems (i.e. the absence of anti-bribery rules and regulations)?

In our opinion it is highly unlikely.

102 One, “The Trillion Dollar Scandal” (3 September 2014) at p.2, online: http://www.one.org/international/policy/trillion-dollar-

scandal/. 103 Ibid. 104 Lizzie Dearden, “Panama Papers: What are they, who is involved and why are they important?”, Independent (4 April 2016),

online: < http://www.independent.co.uk/news/world/politics/panama-papers-what-are-they-who-is-involved-and-why-are-they-

important-illegal-legal-tax-avoidance-a6967176.html>.

http://www.one.org/international/policy/trillion-dollar-scandal/

http://www.one.org/international/policy/trillion-dollar-scandal/

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