The Risk of Concurrent Jurisdiction

In foreign corruption cases

The Risk of Concurrent Jurisdiction

The prohibition against bribing public officials has always existed under Canadian criminal law. The Criminal Code includes a number of offences aimed at influence peddling (notably at s. 121). In 1999, Canadian law explicitly created an offence for bribing foreign public officials when Canada passed the Corruption of Foreign Public Officials Act (the “Act”).

One central feature of transnational criminal law, including investigations and prosecutions under the Act, is the potential for a multijurisdictional dispute. Many countries have foreign corrupt practices legislation and some have broad extraterritorial jurisdictional provisions, in particular, the Foreign Corrupt Practices Act (the “FCPA”) in the US and the Bribery Act in the UK. American and British legislation permit courts to take jurisdiction under a very broad interpretation of the nationality principle. This means that regardless where the offence was committed, if the accused is, say, American or British, or if a corporation is incorporated in America or Britain or is a reporting issuer or carries on part of its business in these countries, then American and/or British courts, as the case may be, may take jurisdiction. Under the FCPA, a non-US company may find itself subject to US corruption investigations because of some business activity that relates to the misconduct has a US connection, even though this connection is not otherwise substantial, for example, using US mail.

Amendments to the Act, in force since 2013, have expanded the scope of the Act’s extraterritorial jurisdiction to capture cases that simply involve Canadian nationals (including companies incorporated in Canada), even where there is otherwise no real and substantial connection between the alleged offence and Canada. This is a significant departure from the R v. Libman test that previously applied to extraterritoriality, and has not yet been tested by the courts.

Concurrent jurisdiction is a reality to be mindful of from the earliest stages of an investigation, right through to settlement talks. The issue is particularly important when one considers the different approaches states take to international double jeopardy. In Canada, the Charter s. 11(h) rule against double jeopardy also applies internationally so that, if an individual is tried and convicted (or acquitted) of foreign corruption in one country, there is a general bar against re-prosecution in Canada (subject to the exception at s. 5[5] of the Act). However, this is not the case in other countries, most notably in the United States. In United States v. Jeong, 624 F. 3d 706 (2010), a South Korean national was tried and convicted in South Korea for paying bribes to American public officials. He served a jail sentence in addition to having to pay a fine. US prosecutors specifically noted in a request for information from the South Korean government that they were aware that Mr. Jeong had been convicted in South Korea and that they were not seeking to prosecute him. Despite this assurance, upon travelling to the United States, Mr. Jeong was arrested, indicted for bribery and conspiracy and sentenced to five years’ imprisonment and to a $50,000 fine for the same conduct that led to his imprisonment in South Korea.

The potential for concurrent jurisdiction should be identified promptly to maximize the effectiveness of an internal investigation. Any pre-indictment advocacy or settlement discussions under the Act should take into account all countries that may have concurrent jurisdiction over the same conduct. In global settlements for corruption charges, it is important that the country that does not recognize international double jeopardy have a central role in settlement discussions (see also: Tyler Hodgson, The Gift that Keeps on Giving,” Journal of Financial Crime, Vol. 19 Issue 4).

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