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LEGAL REPORT: INTERNATIONAL LAW [benefit] is. In one of the cases in the States, they gave an of- ficial airline tickets." Klotz sees pitfalls with agents — for starters, with the defini- tion of an agent's familial relations. In some countries "fam- ily" doesn't mean blood relations, he says. It could mean being from the same village. "Companies have agents, a program to vet new agents coming through, but they haven't done that in the past and they have long-standing relationships with agents PROFESSIONAL DIRECTORY in other countries where they've never done their homework. When an American company comes along to buy a Canadian company and they ask for all the due diligence on their agents, that's where Canadian companies have a problem," he says. "Another grey area is how much due diligence is enough? How far do you look back to find something? When do you stop? We anti-corruption lawyers constantly talk about how much due diligence is enough," Klotz says. "Business can be done, but it depends on the industry. If you're selling some- thing desperately required by the country, you can probably avoid corruption. If you're competing in a process where the competitors are involved in corruption, it becomes very dif- ficult to avoid it." This year's report from PriceWaterhouseCoopers, "Con- fronting Corruption," supports Klotz's caveats. The report polled 36 senior executives and experts in anti-corruption from 14 countries. The figures are staggering: 69 per cent said they had experienced some form of actual or attempted corruption; 39 per cent said their company lost a bid due to corrupt officials; nearly 45 per cent haven't entered a mar- ket or explored an opportunity because of corruption risks; 42 per cent believe their competitors pay bribes; and only 22 per cent were confident of the effectiveness of their anti- corruption programs. Is there light at the end of this complex tunnel? Alec Silenzi, Supreme Court of Canada Counsel and Agency Services Henry S. Brown, Q.C. Martin W. Mason Brian A. Crane, Q.C. Graham Ragan Guy Régimbald Eduard J. Van Bemmel, Legal Assistant an associate at Gowlings who does deals in Mozambique and Tanzania, believes there is. "The really interesting thing about Tanzania and Mozambique is that [local anti-corruption leg- islation] is actually more restrictive than North American leg- islation. Some challenges exist in Africa where the government workers don't make very much money and are quite under- paid," he says. In these cases, he finds the use of persuasion and extensive preparation de rigueur. Klotz agrees. "The other technique I like is from a South 2600 - 160 Elgin Street, Ottawa, ON K1P 1C3 Tel: (613) 233-1781 Montréal Ottawa Toronto|| | Hamilton | Waterloo Region | | | gowlings.com Calgary Vancouver Moscow American colleague. When they're in a transaction and they're asked by an official to make a payment, he'll say, 'I can make that payment, but I'm going to have to disclose that payment to my government and to your government, and I'll need a receipt.' That typically makes the request disappear." In Barutciski's experience, "the most common pushback is In the August 2008 Canadian Lawyer Buyers' Guide, incorrect information was printed. The correct company information is Tel: 416-368-2051 1-800-401-9773 Fax: 416-368-5699 www.zsa.ca ZSA Legal Recruitment Canadian Lawyer apologizes for the error. 50 OC T OBER 2008 www. C ANADIAN Law ye rmag.com to sit there and look really dumb. And then look for a way to bring things to a head so that other stakeholders in that gov- ernment realize it's being held up by this particular official. It's case by case. Sometimes you just play stupid until the guy real- izes there is no pot of gold. Your client has to be ready to walk away. You don't want to embarrass the official overtly, or to say no overtly." A big Canadian corruption case is bound to come along soon, says Klotz. "Everyone's waiting for the big fat case. It's got to come. If there are 14 officers in the field, their job is to secure convictions. There's lots of low-hanging fruit for them because there are investigations going on in other countries. There are competitors who may complain. Seldom does a day go by when corruption is not in the paper. No-one wants to be the first case, because it'll be hard to get a plea bargain. Canada is being pil- loried by the OECD for being easy on corruption."