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CCCA_V3No3_Corruption-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 9/16/09 9:48 PM Page 35 Feature The surge in FCPA enforcement is also affecting M&A activ- foreign jurisdictions trying to look good by winning a contract.” ity, especially in the pharmaceutical industry, says Amita Kent, vice-president of legal affairs at Schering-Plough Canada. More collective action “When you acquire a business in a foreign country, you’re tak- Moreover, the anti-corruption movement continues to gather ing on its liabilities. You’re also taking on its employees. The momentum outside the U.S.TheWorld Bank Group and United issues they have are your issues. It’s important to know whether Nations have also pursued their own agendas with the help of they have been trained. So there has to be an anti-corruption non-governmental organizations such as the anti-corruption element to your due diligence.” watchdog Transparency International. Their efforts have con- It may also be tempting to believe that only multinationals need tributed to making collective anti-corruption programs more to be concerned. When the FCPA was first signed into law in commonplace. For example, Canadian companies bidding on 1977, a select few giants had access to foreign markets. But today World Bank projects are asked to sign onto World Bank pro- any small business can have a global reach by tapping into a broad curement guidelines. “Often Canadian companies have signed network of suppliers and agents capable of fostering relationships those commitments without understanding what they mean,” in different countries. saysWessel.“If they are in breach of them,they’ll be banned from “Canadian companies can be a bit naïve about the way they do bidding on other World Bank projects for several years.” business globally,” says Wessel.“They’ll say to themselves,‘I’m not Also, the U.S. has applied heavy pressure on its trading partners doing business outside the U.S. or Canada. I’m not a public com- to adopt and enforce FCPA principles. pany. Why should I worry?’Well, there is a whole bunch of ways In 1997, Canada, the U.S. and 32 other countries signed the of getting caught.” For one, counsel should assume that the FCPA will apply to any transaction involving an American entity. And when payments are made in U.S.dollars, these can flow through the United States — enough for the DoJ to assume jurisdiction under the Act. Further complicating matters for guidance connected interests corporate defendants, the FCPA is governed by the agency principle requiring that companies be held vic- ariously liable for the crimes of their employees and agents.So even if a low- level employee acting against a compa- ny’s anti-bribery policy is found guilty of an offence, the company is by default guilty too. balanced thinking high performance According to Kent, the economic downturn can also create an environ- what’s in a name? ment ripe for corruption as there is Yours is a leadership agenda. And so is ours. By combining with MARNIE BURKHART, JAZHART STUDIOS abroad to reach targets. “In times like US and other global clients from offices in Calgary as well as Toronto mounting pressure on local managers Thackray Burgess, McMillan now serves its high performing Canadian, approche personnalisée haute performance these, people are driven to do what and Montréal. McMillan knows what it takes to help you operate at they don’t normally do.” ever higher levels of performance. So you can take the lead. “Very little corruption is driven by top management,” says Borbridge. “A lot of it is driven by local managers in McMillan LLP | Calgary | Toronto | Montréal | mcmillan.ca AUTOMNE 2009 CCCA Canadian Corporate Counsel Association 35