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Page 12 May 7, 2018 • Law TiMes www.lawtimesnews.com the Crown to enforce the policy of the act in accordance with Canada's obligations under the [OECD anti corruption] Con- vention. Article 1 of the Con- vention includes conspiracies to bribe as well as actual bribes of foreign officials," Feldman added. The actions that led to the Karigar prosecution took place before the amendments to the anti-corruption statute, so there is no longer confusion about ju- risdiction to prosecute in Cana- da, notes Mantas. "The law as it stands now gives broad authority to capture conduct overseas. If you think you are going to avoid prosecu- tion because it happened over- seas, that is not going to work," he adds. While the Supreme Court has not dealt specifically with the reach of the CFPOA, the law in this area is broad and "not par- ticularly complex," Mantas says. The elimination of the facilita- tion exemptions also reduces uncertainty, he suggests. "Before, it was when was a "tip" a bribe? While there are un- likely to be prosecutions in this area, there are significant risks to any breach of the statute," Man- tas stresses. "When it comes to infra- structure, it is huge. You could be de-barred" and prohibited from bidding on foreign con- tracts, he notes. "The classic argument is that you are at a competitive disadvantage if you don't pay a bribe in some countries," says Bandali, whose practice focuses on international trade and anti- corruption law. "I can't be the only one obey- ing the law. But there are many arguments against that, includ- ing the reputation risk, if you do not comply," she says. A more effective way to win approval in bidding for con- tracts in other countries is to seek legitimate "buy-in" from the community, she suggests. "If you are bringing consid- erable resources and benefits to the community, that mitigates the possibility of corruption," says Bandali. Going forward, the next ma- jor development in Canada in the area of combating corporate wrongdoing is deferred prosecu- tion agreements or a DPA. They are voluntary agree- ments between an accused and the Crown, where a criminal prosecution is put on hold and ultimately withdrawn if the de- fendant complies with all terms during the relevant period of the deal. The federal govern- ment initiated a consultation period last fall and it is thought it is drafting legislation that may ultimately be a hybrid of what is already in place in the U.S. and the U.K. Mantas says it is likely that the federal government will move quickly in this area. "It is only a matter of what it is going to look like." LT The new measures also ex- pressly permit alternative forms of holdback, Wong observes. A letter of credit and a de- mand-worded repayment bond are among the other forms of holdback permitted in addition to that of holding back funds to ensure that all parties are paid. The regulations will also re- quire a "surety bond" for public projects of more than $250,000 in value to ensure contractor per- formance. "This will quite fre- quently be invoked," says Wong. The new legislation has grandfathering provisions re- lated to procurement and con- tracts. "If you have commenced the procurement process, the contract is also grandfathered," Wong states. "The section of the bill talks about it being commenced, so it will be necessary to ensure there is clarity in the documents themselves to put the bidders on notice," he explains. This provision might still re- sult in confusion and disputes, however, Abbott says. "The question is, 'When is the new baby born? What is the ef- fective date of the contract?'" he asks. There are still a number of details to be worked out in the area of mandatory adjudication FOCUS Continued from page 10 Continued from page 11 A lot of preparation needed for compliance before it is formally part of the process in the fall of 2019. The extra period before stage two is implemented is reason- able, says Wong. "The government needs time to create this new authority. It will have to find and designate adjudicators. It does take a fair bit of time to ramp up. The in- dustry also needs a period to adapt," Wong says. The amendments to the Construction Lien Act received widespread political support when they were passed late last year. Even if there is a change in government after the upcoming provincial election, Wong says he does not think there will be any major changes related to the construction industry and the rules around payment. "The major victory here, in terms of those pushing for changes, is that there really was all party support," he says. LT Risk exists for not complying with law Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. 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