Recent amendments to the CFPOA, Canada’s Corruption of Foreign Public Officials Act, are suggestive of possibly far more potent record-keeping requirements than those under the accounting and record-keeping provisions of the FCPA or under various laws in the United Kingdom. Canada now prohibits inaccurate record-keeping or destroying records “for the purpose of bribery of a foreign public official in order to obtain or retain an advantage in the course of business or for the purpose of hiding that bribery.”1
The CFPOA’s record-keeping prohibitions are subject to nationality jurisdiction. A violation is subject to a term of imprisonment of ten years. The prohibitions apply to anyone who
(a) establishes or maintains accounts which do not appear in any of the books and records that they are required to keep in accordance with the applicable accounting and auditing standards;
(b) makes transactions that are not recorded in those books and records or that are inadequately identified in them;
(c) records non-existent expenditures in those books and records;
(d) enters liabilities with incorrect identification of their object in those books and records;
(e) knowingly uses false documents; or
(f) intentionally destroys accounting books and records earlier than permitted by law.2
Unlike the recording-keeping provisions of the FCPA, which apply only to issuers or publicly-held companies, the CFPOA‘s record-keeping provisions apply to both publicly-held and privately-held companies. Though the UK Bribery Act does not specifically address record-keeping violations, the Companies Act 2006 and false accounting under the Theft Act 1968 may be applicable. But neither is subject to nationality jurisdiction and the scope of the application of their provisions to situations involving foreign bribery is also more limited.
1Corruption of Foreign Public Officials Act, R.S.C. 1998, c. 34, § 4(1) (Can.).