74 LEXPERT MAGAZINE
|
JUNE 2016
e WB investigators provided
the results of their application to
the RCMP, which used the infor-
mation to get wiretap authoriza-
tions and a search warrant. Aer
they were charged, the execu-
tives challenged the wiretaps and
sought an order requiring WB in-
vestigators to appear in court and
produce relevant records.
e trial judge granted the ap-
plications but the SCC overruled
the decision. In support, the court
notes that Canada had adopted
the WB's immunities by passing
the Bretton Woods and Related
Agreements Act.
Morrison says it is the tone of the deci-
sion that is notable.
"It begins by positing that 'corruption
is a significant obstacle to international
development,' observes that 'corruption
oen transcends borders' and suggests
that 'in order to tackle this global problem,
worldwide cooperation is needed,'" Morri-
son says. "ere is no mistaking the court's
view on the importance of the issue."
e sensitivity shines through in the
Supreme Court's rejection of technical
arguments seeking to interpret the im-
munities narrowly.
"e court's real recognition of the im-
portant role of the World Bank in com-
batting international corruption is dem-
onstrated in its purposive approach to the
privileges and immunities involved," Mor-
rison says.
But the court was also careful to limit
the scope of its decision.
"e Supreme Court of Canada was
quite careful to point out that there had
in fact been considerable production of
records in the case," Morrison says. "ey
focused on the particular application be-
fore them and the more traditional test for
relevance as a way of not allowing this deci-
sion to be read too broadly."
As Pratte points out, the 188 nations
who have joined the World Bank have
agreed to transfer the organization's gover-
nance to the international body.
"By doing so, each state has agreed that
the benefits of membership in the organi-
zation and the granting of immunity justi-
fy the transfer from domestic governance,"
he says. "It's the price of admission."
Indeed, what's clear is that the judicial
systems of the World Bank's member states
vary widely.
"You don't want an international organi-
zation that has to abide by the rules in 188
different systems," Effendi says. "If it did,
you could easily have one or more countries
attempting to use their judicial system to
interfere with the World Bank's work."
As it turns out, World Bank also provides
some practical insights about the Canadian
approach to anti-corruption enforcement
and compliance.
"e case underscores the breadth and
effectiveness of cooperation efforts be-
tween state and non-state actors in this
context as well as the tools available to lo-
cal law enforcement in Canada," Morrison
says. "It also underscores the importance
of effective and targeted corporate compli-
ance programs, especially for companies
operating in high-risk jurisdictions."
Indeed, the consequences for the accused
were severe: they were prohibited from par-
ticipating in World Bank Group-funded
projects for 10 years, suffered reputational
harm and significant legal costs.
"ese ramifications greatly outweigh
the costs of implementing and maintaining
a robust and effective compliance program
tailored to detect and prevent improper
conduct," Morrison says.
THE SUPREME COURT OF CANADA
has issued a resounding endorsement of
international anti-corruption efforts by
upholding the archival and personal im-
munities of the World Bank Group and its
anti-corruption investigators.
"e is the first time the high court has
dipped their toes into this," says Mark
Morrison of Blake, Cassels & Graydon
LLP in Calgary. "ey've demonstrated a
real sensitivity to international cooperation
and anti-corruption laws."
It also appears to be the first judicial dis-
cussion of the subject anywhere.
"e issue has never been discussed
by any other court anywhere else in the
world," says Guy Pratte of Borden Ladner
Gervais LLP in Ottawa and Montréal, who
with partner Nadia Effendi in Toronto rep-
resented several interveners, including the
Organisation for Economic Co-operation
and Development.
World Bank Group v. Wallace arose from
the World Bank Group's investigation of
whistleblower allegations that executives of
a multinational had tried to bribe Bangla-
deshi officials by way of trying to secure a
multi-billion dollar construction contract.
Top court upholds World Bank immunities BY JULIUS MELNITZER
SCC Endorses Anti-Corruption
PHOTO:
SHUTTERSTOCK
| ANTI-CORRUPTION |
THE BORDER
