Canada’s New Extractive Sector Transparency Measures Act and its Implications for Companies Subject to the U.S. Foreign Corrupt Practices Act

On June 1, 2015, Canada’s Extractive Sector Transparency Measures Act (“ESTMA” or “the Act”) came into force. Approved in December 2014, but not in force until this month, the Act requires companies in the extractive sector to report annually on certain payments made to any level of government—including payments made to employees of state-owned corporations—both in Canada and abroad. In line with Canada’s commitment to join global anti-corruption efforts, the Act’s stated purpose is to enhance transparency in the resource extractive sector in order to deter and detect corruption, including corruption under Canada’s Corruption of Foreign Public Officials Act. As discussed in this client alert, the Act contains its own enforcement and penalty provisions. Equally important, in light of the heavy scrutiny given to the extractive sector by foreign bribery prosecutors—according to a recent study by the Organization for Economic Co-operation and Development (OECD), 19% of all concluded foreign bribery cases since 1999 have involved the extractive industries—the Act also has broader implications for foreign bribery enforcement, including enforcement of the U.S. Foreign Corrupt Practices Act (FCPA). Indeed, consistent with the OECD study, a significant number of FCPA enforcement actions have implicated the extractive sector, including the TSKJ cases, which involved bribery in the liquefied natural gas industry and resulted in the largest combined FCPA resolution in history. Accordingly, Canadian extractive companies and companies doing business in Canada that are involved in the extractive sector should pay close attention both to the requirements of the ESTMA itself and to its potential impact on anti-corruption enforcement efforts.