Law:Foreign Extraterritorial Measures Act

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R.s.c., 1985, c. F-29

An Act to authorize the making of orders relating to the production of records and the giving of information for the purposes of proceedings in foreign tribunals, relating to measures of foreign states or foreign tribunals affecting international trade or commerce and in respect of the recognition and enforcement in Canada of certain foreign judgments


Contents

Short Title

Short title

1. This Act may be cited as the Foreign Extraterritorial Measures Act.

1984, c. 49, s. 1.


Interpretation

Definitions

2. In this Act,

“antitrust law”

« loi antitrust »

“antitrust law” means a law of a foreign jurisdiction of a kind commonly known as an antitrust law, and includes a law having directly or indirectly as a purpose the preservation or enhancement of competition between business enterprises or the prevention or repression of monopolies or restrictive practices in trade or commerce;

“foreign state”

« État étranger »

“foreign state” means a country other than Canada, and includes

(a) any political subdivision of the foreign state,

(b) the government, and any department, of the foreign state or of a political subdivision thereof, and

(c) any agency of the foreign state or of a political subdivision thereof;

“foreign trade law”

« loi commerciale étrangère »

“foreign trade law” means a law of a foreign jurisdiction that directly or indirectly affects or is likely to affect trade or commerce between

(a) Canada, a province, a Canadian citizen or a resident of Canada, a corporation incorporated by or under a law of Canada or a province or a person carrying on business in Canada,

and

(b) any person or foreign state;

“foreign tribunal”

« tribunal étranger »

“foreign tribunal” means a tribunal of a foreign state or of an organization of states;

“judgment”

« jugement »

“judgment” includes a decree or order;

“record”

« document »

“record” includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy or portion thereof;

“tribunal”

« tribunal »

“tribunal” includes any court, body, authority or person having authority to take or receive information, whether on its or his behalf or on behalf of any other court, body, authority or person.

R.S., 1985, c. F-29, s. 2; 1996, c. 28, s. 2.


Amendments To Schedule

Power of Attorney General

2.1 The Attorney General of Canada may, with the concurrence of the Minister of Foreign Affairs, by order, amend the schedule

(a) by adding the name of a foreign trade law or a reference to any provision of a foreign trade law if the Attorney General of Canada is of the opinion that that law or provision is contrary to international law or international comity; or

(b) by removing a name or reference to any provision set out in the schedule if the Attorney General of Canada is of the opinion that it is appropriate to do so.

1996, c. 28, s. 3.


Disclosure Of Records To Foreign Tribunals

Orders of the Attorney General

Orders of Attorney General relating to production of records and giving of information

3. (1) Where, in the opinion of the Attorney General of Canada, a foreign tribunal has exercised, is exercising or is proposing or likely to exercise jurisdiction or powers of a kind or in a manner that has adversely affected or is likely to adversely affect significant Canadian interests in relation to international trade or commerce involving a business carried on in whole or in part in Canada or that otherwise has infringed or is likely to infringe Canadian sovereignty, or jurisdiction or powers that is or are related to the enforcement of a foreign trade law or a provision of a foreign trade law set out in the schedule, the Attorney General of Canada may, by order, prohibit or restrict

(a) the production before or the disclosure or identification to, or for the purposes of, a foreign tribunal of records that, at any time while the order is in force, are in Canada or are in the possession or under the control of a Canadian citizen or a person resident in Canada;

(b) the doing of any act in Canada, in relation to records that, at any time while the order is in force, are in Canada or are in the possession or under the control of a Canadian citizen or a person resident in Canada, that will, or is likely to, result in the records, or information as to the contents of the records or from which the records might be identified, being produced before or disclosed or identified to, or for the purposes of, a foreign tribunal; and

(c) the giving by a person, at a time when that person is a Canadian citizen or a resident of Canada, of information before, or for the purposes of, a foreign tribunal in relation to, or in relation to the contents or identification of, records that, at any time while the order is in force, are or were in Canada or under the control of a Canadian citizen or a person resident in Canada.

Restriction in relation to tribunals in Canada

(2) Where production before or disclosure or identification to, or for the purposes of, a foreign tribunal of a record and the giving by a person of information before, or for the purposes of, a foreign tribunal in relation to, or in relation to the contents or identification of, a record is prohibited or restricted by an order made under subsection (1), a tribunal in Canada shall not, for the purposes of proceedings before the foreign tribunal,

(a) where the order is in the nature of a prohibition, receive the record or information; or

(b) where the order is in the nature of a restriction, receive the record or information if, as a result of so doing, the order may be contravened.

Form of orders

(3) An order made under this section may

(a) be directed to a particular person or to a class of persons;

(b) relate to a particular foreign tribunal or to a class of foreign tribunals; and

(c) relate to a particular record or to a class of records.

R.S., 1985, c. F-29, s. 3; 1996, c. 28, s. 4.


Seizure of Records

Seizure of records for safe-keeping

4. Where, on an application by or on behalf of the Attorney General of Canada, a superior court is satisfied that an order made under section 3 may not be complied with in relation to some or all of the records in Canada to which it relates, the court may issue a warrant authorizing a person named therein or a peace officer to seize those records and to deliver them to the court or a person designated by the court for safe-keeping while the order remains in force, on such terms as to access to the records or return of all or any of the records as are fixed by the court having regard to the object to which the order is directed.

1984, c. 49, s. 4.


Measures Of A Foreign State Or Foreign Tribunal

Orders of Attorney General relating to measures of a foreign state or foreign tribunal

5. (1) Where, in the opinion of the Attorney General of Canada, a foreign state or foreign tribunal has taken or is proposing or is likely to take measures affecting international trade or commerce of a kind or in a manner that has adversely affected or is likely to adversely affect significant Canadian interests in relation to international trade or commerce involving business carried on in whole or in part in Canada or that otherwise has infringed or is likely to infringe Canadian sovereignty, the Attorney General of Canada may, with the concurrence of the Minister of Foreign Affairs, by order,

(a) require any person in Canada to give notice to him of such measures, or of any directives, instructions, intimations of policy or other communications relating to such measures from a person who is in a position to direct or influence the policies of the person in Canada; or

(b) prohibit any person in Canada from complying with such measures, or with any directives, instructions, intimations of policy or other communications relating to such measures from a person who is in a position to direct or influence the policies of the person in Canada.

Measures

(2) For the purposes of subsection (1), measures taken or to be taken by a foreign state or foreign tribunal include laws, judgments and rulings made or to be made by the foreign state or foreign tribunal and directives, instructions, intimations of policy and other communications issued by or to be issued by the foreign state or foreign tribunal.

Form of orders

(3) An order made under this section may be directed to a particular person or to a class of persons.

R.S., 1985, c. F-29, s. 5; 1995, c. 5, s. 25; 1996, c. 28, s. 5(F); 1997, c. 18, s. 127(F).


Service

Service

6. (1) An order made under section 3 or 5

(a) may be served on a person, other than a corporation, to whom it is directed by delivering it personally to him or, if that person cannot conveniently be found, by leaving it for him at his latest known address with any person found therein who appears to be at least sixteen years of age; or

(b) may be served on a corporation to which it is directed by delivering it personally to the manager, secretary or other executive officer of the corporation or of a branch thereof.

Idem

(2) Where, on an application by or on behalf of the Attorney General of Canada, a superior court is satisfied that an order made under section 3 or 5 that is directed to a class of persons cannot reasonably be served in the manner described in paragraph (1)(a) or (b) on all or any of the persons included in the class, the court may, by order, authorize service of the order on those persons in such other manner as it considers appropriate.

Idem

(3) An order varying or revoking an order made under section 3 or 5 may be served on the person to whom it is directed in any manner in which the order could have been served on that person.

1984, c. 49, s. 6.


Offences

Offence and punishment

7. (1) Every person who contravenes an order made under section 3 or 5 that is directed to the person and that has been served on the person in accordance with section 6 is guilty of an offence and liable

(a) on conviction on indictment,

(i) in the case of a corporation, to a fine not exceeding $1,500,000, and

(ii) in the case of an individual, to a fine not exceeding $150,000 or to imprisonment for a term not exceeding five years, or to both; or

(b) on summary conviction,

(i) in the case of a corporation, to a fine not exceeding $150,000, and

(ii) in the case of an individual, to a fine not exceeding $15,000 or to imprisonment for a term not exceeding two years, or to both.

Offence outside Canada

(2) A contravention of an order made under paragraph 3(1)(a) or (c) or 5(1)(a) or (b) that would be punishable as an offence under subsection (1) if committed in Canada is, if committed outside Canada, an offence under this Act that may be tried and punished in Canada as if it were committed in Canada, and proceedings in respect of such an offence may be instituted, tried and determined at any place in Canada.

Consent to prosecution required

(3) No proceedings with respect to an offence under this Act may be instituted without the consent of the Attorney General of Canada.

Factors to take into account

(4) In taking into account the circumstances of the offence when determining the sentence for an offence referred to in subsection (1), the court shall have regard, among other things, to the degree of premeditation in its commission, the size, scale and nature of the offender’s operations and whether any economic benefits have, directly or indirectly, accrued to the offender as a result of having committed the offence.

R.S., 1985, c. F-29, s. 7; 1996, c. 28, s. 6.


Recognition And Enforcement Of Foreign Judgments

Orders of the Attorney General

Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996

7.1 Any judgment given under the law of the United States entitled Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 shall not be recognized or enforceable in any manner in Canada.

1996, c. 28, s. 7.

Attorney General may declare antitrust judgments not to be recognized or enforceable

8. (1) Where a foreign tribunal has given a judgment in proceedings instituted under an antitrust law and, in the opinion of the Attorney General of Canada, the recognition or enforcement of the judgment in Canada has adversely affected or is likely to adversely affect significant Canadian interests in relation to international trade or commerce involving a business carried on in whole or in part in Canada or otherwise has infringed or is likely to infringe Canadian sovereignty, the Attorney General of Canada may

(a) in the case of any judgment, by order, declare that the judgment shall not be recognized or enforceable in any manner in Canada; or

(b) in the case of a judgment for a specified amount of money, by order, declare that, for the purposes of the recognition and enforcement of the judgment in Canada, the amount of the judgment shall be deemed to be reduced to such amount as is specified in the order.

Attorney General may declare certain foreign judgments not to be recognized or enforceable

(1.1) Where a foreign tribunal has given a judgment in proceedings instituted under a foreign trade law or a provision of a foreign trade law set out in the schedule and, in the opinion of the Attorney General of Canada, the recognition or enforcement of the judgment in Canada has adversely affected or is likely to adversely affect significant interests in Canada, the Attorney General of Canada may

(a) in the case of any judgment, by order, declare that the judgment shall not be recognized or enforceable in any manner in Canada; or

(b) in the case of a judgment for a specified amount of money, by order, declare that, for the purposes of the recognition and enforcement of the judgment in Canada, the amount of the judgment shall be deemed to be reduced to such amount as is specified in the order.

Publication and coming into force

(2) Every order made under subsection (1) or (1.1) shall be published in the Canada Gazette and each order comes into force on the later of the day it is published and a day specified in the order as the day on which it is to come into force.

Effect of order

(3) While an order made under subsection (1) or (1.1) is in force,

(a) in the case of an order made under paragraph (1)(a) or (1.1)(a), the judgment to which it relates shall not be recognized and is not enforceable in Canada; and

(b) in the case of an order made under paragraph (1)(b) or (1.1)(b), the judgment to which it relates may, if enforceable apart from this Act, be recognized and enforced in Canada as if the amount specified in the order were substituted for the amount of the judgment, and not otherwise.

No inference where order not made

(4) In any proceedings in Canada to recognize or enforce a judgment given by a foreign tribunal in proceedings instituted under an antitrust law, or a foreign trade law or a provision of a foreign trade law set out in the schedule, or to enforce a concurrent or subsequent judgment for contribution or indemnity related to that judgment, no inference shall be drawn from the fact that the Attorney General of Canada has not made an order under subsection (1) or (1.1) in respect of the judgment.

R.S., 1985, c. F-29, s. 8; 1996, c. 28, s. 7.

Judgments satisfied outside Canada

8.1 Where an order may not be made under section 8 in respect of a judgment because the judgment has been satisfied outside Canada, or where a judgment has been given under the law of the United States entitled Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, the Attorney General of Canada may, on application by a party against whom the judgment was given who is a Canadian citizen, a resident of Canada, a corporation incorporated by or under a law of Canada or a province or a person carrying on business in Canada, by order, declare that that party may recover, under the provisions of section 9 that the Attorney General identifies, any or all amounts obtained from that party under the judgment, expenses incurred by that party, or loss or damage suffered by that party.

1996, c. 28, s. 7; 2001, c. 4, s. 86(F).


Recovery of Damages

Recovery of damages and expenses

9. (1) Where a judgment in respect of which an order has been made under section 8 has been given against a party who is a Canadian citizen, a resident of Canada, a corporation incorporated by or under a law of Canada or a province or a person carrying on business in Canada, or an order has been made under section 8.1 in favour of such a party in respect of a judgment, that party may, in Canada, sue for and recover from a person in whose favour the judgment is given

(a) in the case of an order made under paragraph 8(1)(a) or (1.1)(a),

(i) any amount obtained from that party by that person under the judgment,

(ii) all expenses incurred by that party in the course of defending the proceedings in which the judgment was awarded and in instituting proceedings under this Act, including all solicitor-client costs or judicial and extrajudicial costs, and

(iii) any loss or damage suffered by that party by reason of the enforcement of the judgment; and

(b) in the case of an order made under paragraph 8(1)(b) or (1.1)(b),

(i) any amount obtained from that party by that person under the judgment that is in excess of the amount to which the judgment is deemed to be reduced,

(ii) the amount that the Attorney General of Canada may specify in respect of the expenses incurred by that party in the course of defending the proceedings in which the judgment was awarded,

(iii) the expenses incurred by that party in instituting proceedings under this Act, including all solicitor-client costs or judicial and extrajudicial costs, and

(iv) such proportion of any loss or damage suffered by that party by reason of the enforcement of the judgment as the Attorney General may specify.

Recovery of expenses before final judgment

(1.1) Where proceedings are instituted under an antitrust law, or a foreign trade law or a provision of a foreign trade law set out in the schedule, and no final judgment has been given under those proceedings against a party who is a Canadian citizen, a resident of Canada, a corporation incorporated by or under a law of Canada or a province or a person carrying on business in Canada, that party may, in Canada, with the consent of the Attorney General of Canada, at any time during the proceedings sue the person who instituted the action and recover from that person all expenses incurred by the party in defending those proceedings and in instituting proceedings under this Act, including all solicitor-client costs or judicial and extrajudicial costs.

Seizure and sale of property and shares

(2) A court that renders judgment in favour of a party pursuant to subsection (1) or (1.1) may, in addition to any other means of enforcing judgment available to the court, order the seizure and sale of any property in which the person against whom the judgment is rendered, or any person who controls or is a member of a group of persons that controls, in law or in fact, that person, has a direct or indirect beneficial interest. The property that may be seized and sold includes shares of any corporation incorporated by or under a law of Canada or a province, regardless of whether the share certificates are located inside or outside Canada.

R.S., 1985, c. F-29, s. 9; 1996, c. 28, s. 7; 2001, c. 4, s. 87.


Tabling Of Orders

Tabling

10. An order made under section 2.1, 3, 5, 8 or 8.1 shall be laid before each House of Parliament within fifteen sitting days after it is made.

R.S., 1985, c. F-29, s. 10; 1996, c. 28, s. 7.


Commencement

Coming into force

11. This Act shall come into force on February 14, 1985.

1984, c. 49, s. 11.

Schedule

(Section 2.1)


1.Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996United StatesAll
Column I Column II Column III
Item Foreign Trade Law Enacting Jurisdiction Provisions

1996, c. 28, s. 8.


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