President Trump and Congress Water Down Anti-Corruption Rules for U.S. Mining Companies

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On February 14, 2017, President Trump signed into law a joint resolution of Congress to repeal a critical anti-corruption rule for oil, gas and mining companies. The law was introduced by the House on January 30, 2017. It quickly moved to the Senate, where it was passed with the support of the Republicans and opposition of the Democrats.

The rule is referred to as the “Cardin-Lugar regulations” and was enacted by the U.S. Securities and Exchange Commission, in accordance with the Cardin-Lugar amendment of 2010.  The amendment, prompted by the 2008 financial crisis and high prevalence of corruption in developing countries, directed the Securities and Exchange Commission to issue a rule requiring oil, gas and mining companies listed on the U.S. stock exchange to disclose how much they paid to hosting foreign governments (above a certain threshold).  The purpose of this amendment was to curb bribery and otherwise illicit payments made to governments in return for specific natural resource extraction projects.

The rule itself took a decade to finalize, and, up until the U.S. government’s recent decision to overturn it, was set to take effect next year. As the rule stood, it would require U.S. listed mining companies to file an annual report with the Securities and Exchange Commission, outlining the type and total amount of payments made to foreign governments (and the U.S. federal government) with respect to extractive projects. With the decision to repeal the Commission’s rule, there is therefore no indication that U.S.-listed companies will be subject to a reporting regime in the near future. That is, until the Securities and Exchange Commission creates a new rule. While the Cardin-Lugar regulations have been overturned, the Cardin-Lugar amendment has not been. This means that U.S.-listed companies will likely still be subject to reporting requirements at some point in time, as the Cardin-Lugar amendment requires the Securities and Exchange Commission to issue disclosure rules on extractive companies. However when this rule will be enacted, is yet to be determined. Given the length of time associated with enacting the original rule, it is unlikely that a new reporting regime will be established any time soon. In the meantime, U.S.-listed companies will be required to continue to track their payments, pursuant to the U.S. Foreign Corrupt Practices Act , however, they will not be required to make this information public.

It is unlikely that other countries who have adopted legislation consistent with the Cardin-Lugar regulations will follow the U.S. government’s new direction in this field. The regulations have received widespread support from the world’s major extractive companies, and many companies have a reporting regime. It has led to the creation of a global standard of transparency in the extractive industry, with numerous countries including Canada, the UK and the EU, enacting similar legislation to help combat corruption and to increase accountability in corporate governance.

Canada continues to be one of the countries supporting transparency requirements in the extractive industry. The Extractive Sector Transparency Measures Act  for example came into force in June 2015 and contains broad reporting obligations for oil, gas and mining companies. The reporting obligations go even further than the Cardin-Lugar provision, to include not only entities included on Canadian stock exchanges, but also certain private companies.

A concern for Canadian and foreign companies who will maintain their reporting regimes is whether the repeal of the Cardin-Lugar regulations will place U.S.-listed companies operating in mining extraction areas at an advantage compared to companies subject to rigorous transparency requirements. Particularly for projects in developing countries such as Africa, where there is a problem with corruption and where succumbing to bribery could lead to the award of mining rights and subsequent contracts. While the Cardin-Lugar rule would not have ended corruption, it was expected to put pressure on those giving bribes and those receiving them, as they would be aware that they would have to report any payments made to government. With the repeal, there is the possibility that U.S.-listed companies could feel more inclined to engage with corrupt governments and be under less pressure to decline a bribe, which could put them ahead of competitors from Canada, the UK, the EU and elsewhere. Whether or not this will in fact cause such a shift in the thinking and conduct of U.S.-listed companies during their dealings with foreign governments is of course undetermined. However, there remains a concern for mining companies subject to these types of reporting regulations, when operating and competing against American companies in these areas.

Mining companies listed on both U.S. and foreign exchanges will still be subject to transparency requirements. While the U.S. may not have reporting requirements, U.S.-listed companies operating in Canada, UK and EU will still be required to comply with applicable transparency legislation. Therefore, if a company has reason to believe and is concerned that an American competitor is committing bribery or corruption, it should consider further investigation. The suspect company may be subject to other transparency requirements and anti-corruption legislation.

In conclusion, although the repeal of the Cardin-Lugar regulations signals that Canadian, UK and EU companies will have tougher reporting guidelines compared to their US neighbours, the playing field may have just become more complex, rather than uneven.

Upcoming Event: Is Canada taking White Collar Crime Seriously?

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Norm Keith, LL.M., partner at Fasken Martineau, will address this timely and important topic of the accountability, criminal enforcement and the social responsibility of corporations in Canada. Topics to be covered will include:

1. The “new normal” of criminalizing corporate behavior;
2. How the Westray Mine disaster changed corporate criminal liability;
3. The problem of proof in white collar prosecutions (Dunn & Duffy);
4. Recent examples of white collar convictions (Karigar & Kazenelson);
5. Will criminal prosecutions make businesses “more ethical”;
6. Towards a rationale model of corporate accountability and compliance.

When:
Wednesday, March 22, 2017
7:45am Breakfast
8:15am Presentation
9:00am Q&A

Where:
Fasken Martineau, 333 Bay Street, 24th Floor, Bay Adelaide

>> Register Now – Space is limited <<

Guest Post: Insights into the New French Anti-Bribery & Corruption Law

This week, White Collar Post features a guest post from Frédéric Ruppert(1) and Maria Lancri(2).

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In December 2016, France passed into law the so called “Sapin 2” law to combat non-ethical behavior and promote transparency. Its new anti-corruption legislation is intended to improve its commitment to business ethics, the prevention of fraud and prohibiting the bribery of foreign public official. This new French law sets forth anti-corruption measures with a view to the more efficient pursuit and prosecution of corruption cases, both foreign and domestic. The impetus came from the frequent critics, most notably from the Organization for Economic Cooperation and Development, that France had not been adequately enforcing its current anti-corruption  laws.

Large companies now have mandatory anticorruption programs, pursuant to the new law, Companies or groups of companies over 500 employees and EUR100 million of turnover and public administrations must implement a detailed anti-corruption compliance program.

Some features of the new law include obligation to implement an anti-corruption compliance program  and that the executive managers bear the actual responsibility of enforcing this obligation within their companies. This is in line with a current trend where the underlying rationale is that only when individuals understand that their personal liability is at stake, will they take care of the situation.

Anticorruption programs are quite common in various organizations now, in particular following the footsteps of US, UK and many Canadian companies. The enforcement of the parent companies’ local laws (most notably US based) against their French subsidiaries, has really helped the understanding and acceptance of such regulations. French subsidiaries of foreign companies have implemented these programs for years now.

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A New “Certainty” in Plea Bargaining

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In R v Anthony-Cook[1], the Supreme Court in a unanimous judgement authored by Moldaver J. has settled the test to be applied where a judge is faced with a joint submission he or she has difficulty accepting.  This case has important implications for accused and their counsel in negotiating a Plea bargain with the Crown in criminal and quasi-criminal, regulatory prosecutions.

Joint submissions are the culmination of the plea bargaining process in criminal cases. They are the result of discussions and negotiations, often with the assistance of a judge conducting pre-trial conference. The Crown inevitably focuses on the seriousness of the allegations and the harm to the alleged victims. The defence will focus on numerous considerations including mitigating factors, circumstances of the accused, evidentiary problems with the Crown’s case and remedial steps taken by the accused. Sometimes the negotiations involve consideration of what’s often referred to as a “rehabilitative remand” where the accused is given time to undergo a restorative justice program, make restitution, or initiate procedures to prevent the harm caused from reoccurring.

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Corruption in the Aviation Industry? “Please Say it Isn’t So!”

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The international aviation industry is highly competitive, international, and yes, known for allegations of corruption. Whether buying, selling, maintaining, servicing or supplying an aircraft, an airport, or the supply chain or related needs, corruption risks associated with the aviation industry is well documented. Companies and individuals involved in the industry face pressures and temptations to flout the law to gain business advantage. However, the legal and business consequences of airline corruption includes, but is not limited to, criminal investigations, prosecutions, convictions, penalties, reputations being destroyed, disgorgement of profits, shareholder losses from the drop of share price, careers ruined, civil law suits launched by investors, loss of confidence by the investment community, legal fees, fines, and jail terms for individuals involved.  Several examples illustrate the serious risks and consequences of corruption in the global aviation industry.

In June 2012, Brazil-based Embraer S.A., the world’s third largest commercial aircraft manufacturer, indicated in its Form 6-K (Report of Foreign Private Issuer) filed with the United States Securities and Exchange Commission (“SEC”), that the company had received a subpoena from the SEC inquiring into certain operations concerning sales of aircraft. In response to this SEC-issued subpoena and associated inquiries into the possibility of non-compliance with the U. S. Foreign Corrupt Practices Act (“FCPA”), Embraer retained outside legal counsel to conduct an internal investigation on transactions carried out in three specific countries.

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Corporate Compliance to Prevent Criminal Liability in Canada

tie-690084Introduction: The Bill C-45 Initiative

Effective corporate compliance to prevent regulatory risk requires a foundation of legal understanding. While corporate accountability and criminal liability has been a recent focus of legislation, law enforcement and regulatory agencies, the modern legislative framework for holding corporations criminally responsible for the wrongdoing[1] was enacted over a decade ago with the passing of Bill C-45 – An Act to Amend the Criminal Code (Criminal Liability of Organizations).

These amendments to the Criminal Code (“Code”) expanded the range of individuals whose acts and omissions could result in corporate criminal liability from those who were “directing minds” to the current standard descried in the Code as “senior officers”. Somewhat surprisingly, there have been few cases interpreting the new Code provisions and considering the scope of individuals that may be “senior officers” for the purposes of the Code. The limited jurisprudence does affirm the increased risk of criminal liability for corporations arising from the Bill C-45 amendments. Decisions from the Courts of Appeal for Ontario and Quebec[2] indicate that courts will interpret the term “senior officer” broadly, encompassing certain lower level managers as well as those employees who manage an important aspect of the corporation’s business.

Replacement of “Directing Mind” with Statutory Formula

The historical and political impetus for Bill C-45 was the 1992 Westray mine disaster, where 26 miners were killed in Pictou County, Nova Scotia. No individuals or corporate employer was ever convicted of a criminal or occupational health and safety regulatory offence. In response to a public inquiry, failed legal proceedings and union lobbying, Bill C-45 was passed to amend the Code to facilitate the conviction of organizations for criminal offences.

Under the former identification theory, a corporation faced criminal liability for the criminal acts of a “directing mind” of the corporation. At common law, the directing mind was defined as a person with:[3]

authority to design and supervise the implementation of corporate policy rather than simply to carry out such policy. In other words, the courts must consider who has been left with the decision making power in a relevant sphere of corporate activity.

The amendments were designed to remedy the inherent limitations of the attached to the “directing mind” paradigm and to better align the Code with the reality of modern, large corporations. As a result, Bill C-45 introduced the defined term “senior officer”. Under the Code, “senior officer” is:

  • a representative who plays an important role in the establishment of an organization’s policies; or
  • is responsible for managing an important aspect of the organization’s activities; and,
  • in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer.

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New French Anti-Corruption Law Provides for DPAs

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On Tuesday, November 8, 2016 France passed its new anti-corruption legislation, to improve its commitment to business ethics, the prevention of fraud and prohibiting the bribery of foreign public official.  The new anti-corruption law, which has taken over a year to revise and implement, is intended to reach the same standards and levels of enforcement as the United Kingdom’s Bribery Act (“BA”) and the American Foreign Corrupt Practices Act (“FCPA”). The most interesting aspect of the new law is that it permits corporate defendants to enter into negotiated resolutions, in a form that is commonly known as Deferred Prosecution Agreements (“DPAs”).

France has long been criticized for its weak anti-corruption law and enforcement activities.  The Organization for Economic Cooperation and Development (“OECD”) working group on bribery said recently that about 24 new corruption cases were opened in the past two years by French authorities yet no French corporation had been convicted of any foreign bribery offence.  In 2014, however, the United States Department of Justice (“DOJ”) secured three of the ten biggest Foreign Corrupt Practices Act (“FCPA”) enforcement actions against French companies by means of DPAs.  French corporate giants Alston paid $772 million, Total SA, paid $398 million and Technip SA, paid $338 million.  France is the only country whose corporations have appeared on the DOJ’s FCPA top ten list, three times.

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U.S. Appeals Court Upholds 180 Month Prison Term for Tax Fraud

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In a case that demonstrates the remarkable contrast between the American and Canadian enforcement of tax rules, the United States Court of Appeals, for the Second Circuit, recently upheld a conviction in a sentence of 180 months imprisonment for seven counts of tax fraud and evasion. The severity of the penalty assessed against Paul M. Daugerdas (“Daugerdas”), can only be matched by the huebris of the defendant himself. The case is a cautionary tale for Canadian tax planners in an age of growing tax evasion and fraud enforcement.

Daugerdas was a certified public accountant and tax attorney, first at Arthur Anderson, then at two law firms. Throughout his career, Daugerdas developed, sold, and implemented a variety of tax reduction strategies for wealthy clients. His specialty was the so-called “short sale shelter, short option shelter, swaps shelter, and the HOMER shelter”.[1] Deugerdas’ tax planning and shelters covered a period from 1994 through to 2004.  In August of 2000, the Internal Revenue Service announced that transactions like those being offered by Dougerdas no longer provide the favourable tax treatment that he offered to his clients.  In response, Deugerdas and his colleagues developed similar transactions with different elements and strategies.

Deugerdas’ huebris was exposed in the appeal decisions when the evidence reveled that part of his tax planning strategy involved intentional back-dating documents to attempt to gain tax advantages for his clients.  Also, had his law firms issue “more-likely-than-not” opinion letters falsely stating that the tax shelters had a reasonable possibility of producing a profit, but it was clear that they would not. The letters were held to be entirely dishonest.

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Securities Regulatory Authorities Release Results of Gender Diversity and Term Limit Disclosure Review

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This post was originally published on Timely Disclosure (a Fasken Martineau blog) and authored by Tracy L. Hooey.

Securities regulatory authorities in Ontario and nine other provinces and territories of Canada published CSA Multilateral Staff Notice 58-308 Staff Review of Women on Boards and in Executive Officer Positions – Compliance with NI 58-101 Disclosure of Corporate Governance Practices on September 28, 2016.  The staff notice summarizes a review of the gender diversity and term limit disclosure of 677 non-venture issuers (being those listed on the Toronto Stock Exchange with year-ends between December 31, 2015 and March 31, 2016).  As a result, these statistics do not include data regarding most banks.

Key findings of the gender diversity disclosure review include:

  • there are more women on boards than last year. Of the 215 issuers with over $1 billion market capitalization, 18% of board seats are held by women (up from 10% last year);
  • only 21% of issuers adopted a policy relating to the identification and nomination of women directors (up from 15% last year) and issuers with such a policy had higher average female board representation (18%) as compared to those with no policy (10%);
  • only 9% of issuers set a target for the representation of women on boards (up from 7% last year) and those issuers with targets had a greater number of women on their boards (25%) than those without a target (10%);
  • 66% of issuers disclosed that they consider the representation of women on their boards as part of their director identification and nominating process (up from 60% last year);
  • board and executive officer representation by women varied significantly by industry.

Key findings of the board renewal disclosure review include:

  • 20% of issuers adopted director term limits (up from 19% last year);
  • of those issuers with term limits, 48% set age limits, 23% had tenure limits and 29% had both;
  • the most common reason cited for not adopting board renewal mechanisms was that term limits reduce continuity or experience on the board.

This release follows Ontario Securities Commission Chair and CEO Maureen Jensen’s call for leadership on women on boards.  Chair Jensen highlighted the low number of women filling board vacancies.  She noted that “of the 521 board seats vacated during the year, just 15% were filled by women” and “without an improvement in the vacancy fill rate, we will never reach 30% female board representation”.

Proposed Amendments to CBCA

In addition, the Government of Canada released proposed amendments to the Canada Business Corporations Act which, among other things, would require that distributing CBCA corporations identify the gender composition of their boards and senior management and disclose their diversity policies or explain why none are in place.

Pat McCann on high profile white collar crimes, the media and the Canadian judicial system

Patrick McCann, a key member of Fasken Martineau’s White Collar Defence and Investigations Group, is featured on the cover of the latest issue of the Canadian Bar Association’s National Magazine. Pat comments in the magazine on the role of the media in high profile cases and its impact on the public and the justice system. Pat, who is an editor of the White Collar Post and counsel to Fasken Martineau, has himself been involved in many high profile criminal cases.

Head over to the National magazine to read the full article.