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During May 2013, the Australian Federal Police, the United States Federal Bureau of Investigations, the Royal Canadian Mounted Police and the United Kingdom City of London Police Overseas Anti-Corruption Unit all signed a Memorandum of Understanding setting up a new International Foreign Bribery Taskforce (to be known as IFBT).
The IFBT signifies a new relationship between the Australian, United States, Canadian and United Kingdom agencies to combat foreign bribery. The purpose of the taskforce enables the agencies and the countries they represent to work collaboratively to strengthen investigations into foreign bribery offences and to support the relevant OECD and United Nations Anti-Bribery Conventions.
It is expected that the IFBT will:
The creation of the IFBT goes some way towards addressing the criticisms Australia received from the OECD in the October 2012 Phase 3 Review in relation to compliance with the OECD Anti-Bribery Convention.
Where improper payments occur involving foreign public officials, there is always a risk that Australia's anti-money laundering and counter terrorism financing laws (AML-CTF laws) may be invoked.
In June 2013, the Government released a discussion paper which looked at possible areas of reform, including:
All of these issues impact on the extent to which Australian and overseas regulators require corporations to understand the risk profile in each jurisdiction in which they do business, with who do you do business and to proactively manage those risks. Any contravention of the AML-CTF laws can give rise to significant fines and lengthy terms of imprisonment upon any conviction.
On 18 June 2013, the Canadian Parliament passed amendments to its Corruption of Foreign Public Officials Act.
The changes are important for any Australian business dealing with Canadian corporations or individuals. The important changes include:
In light of these changes, any Australian company which has business operations in Canada or who deals with Canadian parties should review its policies and procedures, particularly dealing with the business books and records to ensure compliance with the new Canadian laws and to take steps to abolish or ban outright all facilitation payments.
All Australian businesses operating internationally, and particularly in or subject to the jurisdiction of the United States, Canada or the United Kingdom, should be under no illusion that regulatory agencies in those countries will co-operate closely with each other and will investigate allegations of foreign bribery involving residents, citizens or corporations of those countries whenever credible allegations of foreign bribery arise, often in the media and whether or not the actual bribery may have taken place in a relevant country or an independent third party country.
For these reasons, it is critical for all Australian corporations doing business overseas to:
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Deadlines to lodge your Modern Slavery Statement(s) have now shifted to account for the disruption and complications caused by COVID-19.
This piece is designed to prompt thoughts of what changes may be required in private M&A documents in order to accommodate and allocate risks relating to COVID-19 and the fallout from this pandemic.