Law Review Volume 32 | Number 2 | Hilary Term 2015

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL BOARD OF DIRECTORS Don LeDuc, President and Dean Hon. Louise Alderson, Vice Chairman Thomas W. Cranmer Sharon M. Hanlon Hon. Jane E. Markey Kenneth V. Miller Lawrence P. Nolan, Chairman Hon. Bart Stupak Dennis A. Swan

James W. Butler III Scott A. Dienes W. Anthony Jenkins Hon. Stephen J. Markman James C. Morton Edward H. Pappas Hon. Richard F.Suhrheinrich

Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Chief Financial Officer, Treasurer

PROFESSOR, FOUNDER, AND PAST PRESIDENT The Honorable Thomas E. Brennan DEANS EMERITI Michael P. Cox, Dean and Distinguished Professor Emeritus Keith J. Hey, Dean and Distinguished Professor Emeritus Robert E. Krinock, Dean and Professor Emeritus (deceased) DISTINGUISHED PROFESSORS EMERITI Curt Benson Kathleen Butler Karen Chadwick Pat Corbett Mary D’Isa Norman Fell James Hicks John Kane Mara Kent Dena Marks Lawrence Morgan Nora Pasman-Green Philip Prygoski Charles Senger Brent Simmons Gina Torielli Cynthia Ward Nancy Wonch

David Berry Evelyn Calogero Dennis Cichon David Cotter Mark Dotson Judith Frank Emily Horvath Eileen Kavanagh R. Joseph Kimble Dan McNeal Maurice Munroe James Peden John Rooney Chris Shafer Norman Stockmeyer Ronald Trosty William Weiner Ann Miller Wood

Ronald Bretz Terrence Cavanaugh Julie Clement Michael Cox Cynthia Faulkner Elliot Glicksman Peter Jason Peter Kempel (deceased) Dorean Koenig Helen Mickens Charles Palmer Ernest Phillips Marjorie Russell Jane Siegel John Taylor William Wagner F. Georgann Wing

PROFESSORS EMERITI Sherry Batzer Lewis Langham Donna McKneelen Dan Ray

James Carey Ashley Lowe Florise Neville-Ewell Kevin Scott Karen Truszkowski

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Heather Garretson Paul Marineau Norman Plate Lorna Patricia Thorpe-Mock

DEANS Don LeDuc President, Dean, and Professor of Law Tracey Brame Assistant Dean and Professor of Law

Christine Church Associate Dean and Professor of Law

Lisa Halushka Assistant Dean and Professor of Law

Laura LeDuc Associate Dean of Planning, Assessment & Accreditation

Jeffrey L. Martlew Associate Dean and Professor of Law

Charles C. Mickens Associate Dean of Innovation and Technology

Nelson P. Miller Associate Dean and Professor of Law

James D. Robb Associate Dean of External Affairs

Duane A. Strojny Associate Dean and Professor of Law

Ronald Sutton Assistant Dean and Associate Professor

Kathy Swedlow Assistant Dean and Professor of Law

Amy Timmer Associate Dean and Professor of Law

Charles R. Toy Associate Dean of Career and Professional Development

Joan Vestrand Associate Dean and Professor of Law

Paul J. Zelenski Associate Dean of Enrollment & Student Services

PROFESSORS Frank C. Aiello Erika Breitfeld Paul Carrier Lisa DeMoss Gerald Fisher Karen Fultz Christopher Hastings Linda Kisabeth Gerald MacDonald Michael McDaniel Martha Moore Kimberly O’Leary John N. Scott Stevie J. Swanson Patrick Tolan

Gary Bauer Tammy Brown Asher Bradley Charles Renalia Dubose Anthony Flores Marjorie Gell Richard C. Henke Tonya Krause-Phelan Mable Martin-Scott Marla Mitchell-Cichon Monica Nuckolls Lauren Rousseau Dan Sheaffer Jeffrey Swartz Christopher Trudeau Victoria Vuletich

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Brendan Beery Jeanette Buttrey Mark Cooney David Finnegan Dustin Foster Katherine Gustafson Barbara Kalinowski Joni Larson Daniel W. Matthews Michael K. Molitor John Nussbaumer Devin Schindler Paul Sorensen David Tarrien Gerald Tschura

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW HILARY 2015 BOARD OF EDITORS Jared Schultz Editor-in-Chief Greg Masters Interim Editor-in-Chief Charlynn Turner Symposium Editor

Melissa Gilchrist Managing Editor

Matthew Elzinga Articles Editor

Rachel Sexton Subcite Editor

William Bellor-Yeh Interim Articles Editor

Michelle Easter Solicitation Editor Elizabeth Devolder Interim Solicitation Editor

Dawn Beachnau Administrator (In Memoriam)

ASSISTANT EDITORS Angie Bailey Nemer Baki Debra Berg-Simon Kevin Berkowitz Daron Berman Alison Center Taycee Friar Lauren Frieder

Sarah Grodek Erin Haney Ken Kharha James Klinedinst Mark Messerschmidt Scott Miller Candis Najor Sumayya Saleh

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Scott Sawyer Jerrod Simpson Cristina Solis Stephanie Wever Holliann Willekes Qiong Zhao

SENIOR ASSOCIATE EDITORS Minyon Bolton Melissa Inchauste Jenn Jager

Rose Kleff Ben Lesnick

Taneashia Morrell Jordan Wilson

ASSOCIATE EDITORS Dalton Carty Tiffany Cerniglio Andrew Doezma

Sarah Harris Caleb Loomis

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Nick Sato Kristi Trigg

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Former Chief Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Former Governor, State of Michigan Joseph Kimble, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School Chris Shafer, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School The Honorable Richard F. Suhrheinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Thomas E. Brennan Western Michigan University Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifty-Second District Court, Retired The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Kara Zech Thelen Faculty Advisor

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JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Hilary 2015 Recipient: Ben Lesnick EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Hilary 2015 Recipients: Mark Messerschmidt, Jerrod Simpson DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Hilary 2015 Recipient: Matthew Elzinga

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WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW TRINITY 2015 BOARD OF EDITORS Greg Masters Editor-In-Chief Elizabeth Devolder Interim Editor-In-Chief

Melissa Gilchrist Managing Editor

Charlynn Turner Symposium Editor

Kendall Perry Interim Managing Editor

Christopher Marker Interim Symposium Editor

Rachel Sexton Subcite Editor

William Bellor-Yeh Articles Editor Mark Cooney Faculty Advisor

Nick Brown Business Editor

Erika R. Breitfeld Faculty Advisor

Sarah Colling Solicitation Editor Dawn Beachnau Administrator (In Memoriam)

ASSISTANT EDITORS Angie Bailey JD Baldwin Debra Berg-Simon Kevin Berkowitz Alison Center Nardeen Dalli

Taycee Friar Sarah Grodek Zachariah Green Marisa Grifka Jennifer Hanna Mariam Ibrahim Scott Miller

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Kyle O’Mara Cristina Solis Skyler SpurlingNewsome Stephanie Wever Holliann Willekes

SENIOR ASSOCIATE EDITORS Dalton Carty Tiffany Cerniglio

Andrew Doezma Sarah Harris Caleb Loomis

ASSOCIATE EDITOR Ian Rothe

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Nick Sato Kristi Trigg

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Former Chief Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Former Governor, State of Michigan Joseph Kimble, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School Chris Shafer, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School The Honorable Richard F. Suhrheinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Thomas E. Brennan Western Michigan University Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifty-Second District Court, Retired The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Mark Cooney Faculty Advisor Erika R. Breitfeld Faculty Advisor

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JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Trinity 2015 Recipient: Dalton Carty EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Trinity 2015 Recipients: Holliann Willekes, Cristina Solis DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Trinity 2015 Recipient: Charlynn Turner

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Contents

Volume 32

2015

Issue 2

From the Editor ............................................................................ xiii Krinock Lecture Series Speakers The Role of the United Nations in a Global Society: Perspectives from United States–New Zealand Relations Jim Donegan.............................................................................. 97 Global Anti-Corruption Compliance: The Role of Cultural Comparisons Kenneth E. Jull ........................................................................ 111 Distinguished Briefs INTERNATIONAL UNION, UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA et al. v. NATALIE YAW et al.

John J. Bursch, Gary Gordon, Leonard C. Wolfe, and Courtney F. Kissel ............................................................. 125 FORD MOTOR COMPANY v. MICHIGAN DEPARTMENT OF TREASURY Aaron Lindstrom and Matthew B. Hodges ............................... 155 PEOPLE OF THE STATE OF MICHIGAN v. RAYMOND CURTIS CARP Eric Restuccia........................................................................... 191

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FROM THE EDITOR The Western Michigan University Thomas M. Cooley Law Review board of editors is pleased to bring you the second issue in Volume 32. This issue features two lectures from the law school’s Krinock Lecture Series by Jim Donegan, United States Consul General to New Zealand, and Kenneth E. Jull, a prominent Canadian attorney.

Next, we are proud to present the three award-winning briefs from the 2015 Distinguished Brief Awards, where the law school recognizes the three best briefs filed during the previous year in the Michigan Supreme Court. We would like to thank Judge Richard F. Suhrheinrich of the United States Court of Appeals for the Sixth Circuit for delivering the opening remarks for the awards ceremony.

And we would also like to acknowledge attorney John J. Bursch, one of the award winners, who actually authored two of the three topscoring briefs this year. Because Mr. Bursch authored two exceptional briefs, we chose to acknowledge both at the ceremony, but we have only printed one in this issue. This allows us to present an additional brief by a different author (or authors). Of course, we’ll never tell which brief presented in this issue placed fourth.

We also thank our faculty advisors, Professors Mark Cooney and Erika R. Breitfeld, along with our entire team of dedicated editors who worked tirelessly to make this issue possible.

— GREG MASTERS

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THE ROLE OF THE UNITED NATIONS IN A GLOBAL SOCIETY: PERSPECTIVES FROM UNITED STATES-NEW ZEALAND RELATIONS WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL: KRINOCK LECTURE 2014 UNIVERSITY OF WAIKATO LAW SCHOOL, HAMILTON, NEW ZEALAND JIM DONEGAN∗ The United Nations (“UN”) is an organization close to my heart, as immediately prior to coming to New Zealand, I was Counselor for Political Affairs at the United States Mission to the UN in New York.

This lecture provides insights into why I believe the UN remains a key institution for protecting and improving how we live together as a global society.

To frame the topic of international relations using a local context, I’ll begin with an overview of the United States-New Zealand bilateral relationship and how it applies to regional issues.

WORK OF MISSION: NEW ZEALAND AND SAMOA The United States has had a diplomatic presence in New Zealand since 1838 when the U.S. Secretary of State commissioned James R. Clendon to be the first United States consul here in the Bay of Islands, north of Auckland (my predecessor 54 times removed). In 2013, we celebrated the one-hundred-seventy-fifth anniversary of America’s diplomatic presence in New Zealand.

The year 2012 also marked the seventieth anniversary of formal U.S. diplomatic relations with independent New Zealand, established in the dark days of World War II when this country faced invasion. In 1942, amid those transformative events, the Honorable Walter Nash was sent to Washington as New Zealand’s first ambassador to the United States (and indeed New Zealand’s first diplomatic envoy anywhere overseas).

Today, the American diplomatic presence in New Zealand is represented by an Embassy in Wellington and a Consulate-General in Auckland. The United States Embassy is staffed by officials * Former United States Consul General to New Zealand; B.S. in Electrical Engineering and M.B.A in International Management, Manhattan College.

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representing a number of United States agencies including the Departments of State, Defense, Commerce, and Agriculture.

The Consulate General in Auckland focuses on commercial support to United States businesses operating in New Zealand and the wider Pacific. All consular services—visa, immigration, and American Citizens’ Services matters—are carried out at the Consulate General. The Consulate General, along with Embassy Wellington, also works on public diplomacy efforts, including media and cultural relations, university outreach, educational advising, and Maori and Pacific community engagement.

Another important aspect of our work is the commercial support we provide to U.S. businesses operating in New Zealand and the wider Pacific.

The United States Ambassador to New Zealand is also accredited to the Independent State of Samoa. The United States established a diplomatic presence in Samoa in 1856 when our first American Consul arrived in the capital, Apia.

THE BILATERAL RELATIONSHIP There is a long history of diplomatic relations between the United States and New Zealand. Our two nations have worked together as partners and friends for almost two centuries—and the foundation of our relationship is rock solid because it is based on shared values.

However, in the mid-1980s our countries’ relationship hit a bump in the road with the suspension of commitments under ANZUS, our trilateral alliance security relationship, which included Australia.

In recent years, Washington and Wellington have taken significant diplomatic strides to strengthen and enhance ties to a point today where the bilateral relationship has been described as the best it has ever been. So what changed? Many years of quiet diplomacy— both traditional and public—based on our continuing shared values and interests, helped to restore the relationship to more of an even footing.

One milestone was then Secretary of State Hillary Clinton’s visit to New Zealand in November 2010, which showed how powerful— and important—person-to-person diplomacy can be. During that visit, she and New Zealand Foreign Minister Murray McCully signed an agreement known as the Wellington Declaration, which provided a useful framework for our newly reinvigorated relationship. It allowed us to reactivate high-level policy dialogues to better understand where we can cooperate and where our differences may

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lie. This was followed by the signing of the Washington Declaration in June 2012, which provided a framework for cooperation to strengthen our military relationship.

The Washington Declaration allowed for the resumption of bilateral military exercises which have been taking place regularly over the past 18 months. The New Zealand Defence Force (“NZDF”) will participate in the large regional Rim of the Pacific Exercise later this year; Royal New Zealand Navy ships recently berthed at United States Naval ports in Guam last year and are programmed for Pearl Harbor this year—a first for many decades.

2014 Exercises in New Zealand include United States Navy participating in the New Zealand Mine Counter Measure Exercise in February and March, a multinational exercise that will include China.

The United States Army and Marines will participate in New Zealand Exercise Alam Halfa in May and Exercise Kiwi Koru in October and November, and United States Pacific Command and NZDF will cohost a regional Capacity Building Workshop in February; Defence Minister Coleman also confirmed during his United States visit last October that New Zealand would provide military instructors to the U.S.-led Global Peacekeeping Operations Initiative in 2014.

BEYOND THE DECLARATIONS—SCIENCE & TRADE Modern international relations have widened from a governmentto-government style of diplomacy to a more inclusive system of engaging the public. Through a wide range of educational and cultural exchange programs—and by vigorously promoting travel and study in the United States and encouraging Americans to study in New Zealand—the United States Government aims to give people the tools and networks to expand and deepen the bilateral relationship.

Scientific cooperation has been one of the strongest areas of our relationship. In fact, it is so consistently productive and successful that it has become commonplace, and it is almost taken for granted.

The most notable example of our scientific collaboration occurs in Antarctica. Central to these efforts is Christchurch, which for over 50 years has served as the deployment hub for personnel of the United States Antarctic Program—Operation Deep Freeze, pumping millions of dollars annually into the local economy.

Trade is also one of the most important aspects of our engagement with New Zealand. Together, we are working to

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complete the Trans-Pacific Partnership Trade Agreement (“TPP”), the economic centerpiece of the United States’ rebalance to the AsiaPacific region.

Including the United States, twelve Asia-Pacific economies representing 40% of global GDP are negotiating the TPP trade deal, which will reflect regional priorities and values, especially in the areas of labor and the environment, and will address new and emerging trade issues and twenty-first-century challenges with respect to the digital economy, cross-border services, state-owned enterprises, and intellectual-property protection.

We see the TPP, with its high ambition and pioneering standards for new trade disciplines, as a model for future trade agreements. All 12 members of the TPP are member economies of APEC and, in turn, the TTP Agreement will serve as a promising pathway to our APEC goal of building a Free Trade Area of the Asia-Pacific.

During a ministerial meeting in Singapore in December, TPP ministers made substantial progress on outstanding issues. Since then, high-level negotiators have continued to work toward a final package. Achieving an ambitious, comprehensive and high-standard agreement is critical for creating jobs and promoting growth throughout the region.

Some have asked if TPP is in competition with other economic agreements being negotiated in the region. That is a misreading of the situation. There is ample economic growth in the region and numerous efforts underway to tap into it. We do not see these as mutually exclusive. Indeed, some members of TPP, including New Zealand, are also members of the new Regional Comprehensive Economic Partnership negotiation, while other TPP members are also negotiating the Pacific Alliance on Latin America’s Pacific coast.

The United States is also negotiating the Transatlantic Trade and Partnership agreement, or “TTP”, with the European Union (“EU”).

All of these negotiations represent an effort to expand economic growth through greater commerce.

The TPP is consciously designed to be comprehensive, highstandard, and twenty-first century in its approach. It is also being designed as a platform that can expand to other economies in the region that are prepared to take on its ambitious commitments. By doing this, we hope to work together to use TPP to open markets and raise trade standards throughout the Asia-Pacific region.

Some have wondered if TPP is directed against non-members, such as China, or Indonesia, or others. That is clearly not the case—

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TPP will be open to Asia-Pacific economies that can demonstrate they are willing and ready to take on its ambitious commitments.

Since the start of TPP negotiations, we have welcomed Vietnam, Malaysia, Mexico, Canada, and Japan into the negotiations. As other countries in the region decide they too support the ambitious goals of TPP, we will be ready to talk to them as well. It is and will continue to be in United States’ interests, as it is in New Zealand’s, to encourage China’s continued integration into the global system of trade and investment and adherence to the standards, norms, and commitments that form the backbone of that system.

Both bilaterally and multilaterally we work closely with China on a range of issues. The United States and China have for some time had a Strategic & Economic Dialogue, which has produced a number of outcomes building on the framework for cooperation established at Sunnylands in June last year. These outcomes span a wide range of pressing bilateral, regional, and global challenges, from Iran and North Korea to maritime security, energy, and the environment.

The fifth United States-China-Asia Pacific Consultations took place in Beijing on January 22, where the United States and China announced their intention to pursue several areas of practical cooperation in fields as varied as regional disaster relief; development in Burma and assistance for Afghanistan; food security; global health issues such as monitoring avian flu and resistance to antimalarial medicines; marine conservation; customs cooperation; and many others.

I should make a special mention of Preventive Diplomacy: along with New Zealand and Brunei, the United States will co-host and China will attend an Association of Southeast Asian Nations Regional Forum Roundtable on Training Resources for Preventive Diplomacy in Wellington on March 20 and 21, 2014, to review and strengthen preventive-diplomacy training in the Asia-Pacific Region.

Both the United States and New Zealand recognize that the future of our societies lies in leveraging and assisting the growth of the Asia-Pacific region, and doing so in a way that harnesses the economic benefits of our citizens’ creativity.

SHARED INTERESTS, GOALS, AND VALUES The United States and New Zealand work together so effortlessly in areas like trade, science, and peacekeeping, to name but a few, because our core values are largely the same. We share a common vision of a world that is stable, peaceful, and prosperous.

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Underpinning this vision is our shared commitment to democratic principles and political empowerment, for universal human rights and democratic governance, and for the rule of law. These are the core values, interests, and ideals that serve to underwrite the United States-New Zealand relationship.

This synergy of interests and values is evident for all to see at the UN. The United States and New Zealand are equally committed to ensuring that the UN retains a position of global leadership and remains an indispensable organization in order to tackle some of the world’s most intractable problems—problems which ultimately affect us all.

The United States proudly hosts the headquarters in my hometown of New York. And we are the UN’s largest contributor: U.S. contributions to the UN in 2010 totaled $7,691,822,000. Like New Zealand, we are absolutely committed to the success of the UN. As never before, our most pressing challenges have become more complex and are truly global. The threats faced today, from climate change to pandemic disease, to man-made and natural disasters, to attacks on freedom and human rights, these pay no attention to national borders and require careful, coordinated action. So international diplomacy becomes increasingly relevant and necessary. United States foreign policy is anchored in our support of multilateral institutions, such as the UN, that provide a collective platform to solve these complex challenges.

IN THE UNITED NATIONS Above the entrance to the UN headquarters at United Nations Plaza on First Avenue between Forty-fifth and Forty-sixth Streets hangs a sign: “Welcome to the United Nations. It’s your world.” And this is true.

The 18-acre site houses representatives from 193 member states working on a broad range of issues directly affecting the lives of billions of people. The UN World Food Program alone—just one of dozens of UN agencies, bodies, and entities—provides food annually to 90 million people in 75 countries. There are currently more than 100,000 UN peacekeepers in 15 peace operations.

In thinking about where and how the United States, New Zealand, and the UN intersect, it is worth reflecting on beginnings. A 1945 conference held in San Francisco resulted in the creation of the UN Charter—the foundation document of the UN. During the two months of deliberations at the conference, the United States

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delegation, led by former first lady Eleanor Roosevelt, whose husband President Franklin D. Roosevelt first coined the term United Nations, and the New Zealand delegation, led by Prime Minister Peter Fraser, worked with other delegations to build a new global institution that would reflect certain shared values and ideals: ideals codified in the UN Charter.

Since then, the main UN organs, including the General Assembly and the Security Council (“SC”), have had essential roles in supporting the development, promotion, and implementation of international norms and standards, all of which help to promote the rule of law at the national and international levels; provide protection of human rights; sustain economic progress and development; and prevent conflict and affect durable peace in the aftermath of conflict.

There are many common causes that the United States and New Zealand work on at the UN. HUMAN RIGHTS The United States and New Zealand have historically been in lockstep on protecting and advancing basic human rights, as enshrined in the Universal Declaration of Human Rights, such as democracy and the freedom to live one’s life free from fear or persecution.

The struggle to make human rights a reality needs a common voice, and the United States and New Zealand have both found that the UN is one of the best venues for dialogue, open discussion, and frank conversation—even with countries with whom we do not always agree.

KEEPING THE PEACE An effective UN is an effective instrument for peacekeeping.

Kiwis and Americans work together keeping the peace around the world. In Timor Leste, New Zealand and American civilian police and military liaison officers worked together to provide security in what was then the world’s newest nation.

In the Sinai Desert that separates Israel from Egypt, a New Zealander is the Force Commander for the Multinational Force and Observers who work with American officials on the ground to monitor the 1979 peace treaty between the two nations.

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NUCLEAR NON-PROLIFERATION AND DISARMAMENT The United States and New Zealand are both committed to global nuclear non-proliferation and arms control efforts. President Obama made it clear in his landmark speech in Vienna in 2009 that the United States is working toward a world free of nuclear weapons.

The United States and New Zealand, along with many others nations, work hard to advance non-proliferation and disarmament efforts through the Nuclear Nonproliferation Treaty in the UN. One of the most pressing nuclear non-proliferation issues before the UN at the moment is Iran. On November 24, 2013, Iran and the P5+1—the United States, Russia, France, the United Kingdom, and China, plus Germany, coordinated by EU High Representative Cathy Ashton—reached a set of understandings outlined in a Joint Plan of Action that, as an initial step, halts progress on Iran’s nuclear program, rolls it back in key respects, and provides additional access to Iran’s nuclear facilities for international inspectors from the International Atomic Energy Agency (“IAEA”). These are the first meaningful limits Iran has accepted on its nuclear program in close to a decade.

We believe this process is the best opportunity for resolving peacefully the international community’s concerns with Iran’s nuclear program and preventing Iran from obtaining a nuclear weapon—a goal we know is shared by our friends and partners worldwide.

CLIMATE CHANGE When it comes to addressing other global challenges, like climate change, the United States and New Zealand work together to provide strong leadership to address environmental issues through vigorous engagement in UN-sponsored climate negotiations. The UN Framework is working toward creating a future climate-change regime that will be legally binding and apply to all nations, with appropriate commitments from developed and developing nations.

ENDING SEXUAL VIOLENCE AGAINST THE VULNERABLE IN CONFLICT AND VIOLENCE BASED ON SEXUAL ORIENTATION Bringing an end to sexual violence against the vulnerable in conflict and violence based on sexual orientation is another area of convergence between the United States and New Zealand at the UN. This was evidenced in March 2011 when the United States and New

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Zealand joined with 83 other countries from every region of the world to endorse the UN Human Rights Council Statement on Ending Violence Based on Sexual Orientation and Gender Identity.

THE SECURITY COUNCIL: OPERATIONS These issues, and many others, are addressed in the General Assembly, where all 193 representative nations contribute to debate.

They often come before the UN Security Council for deliberation and a decision on how the global community will respond. This makes the Council one of the world’s most vital decision-making bodies.

As you would expect with an organization with such significance, significant work goes into making sure it runs as smoothly and as efficiently as possible. There are various types of meetings which take place, each of which serve their own purpose. There are public meetings, including open debates, public briefings, and adoption meetings. Much of the work of the UN gets done through a series of private meetings such as informal consultations, private debates, and Troop Contributing Countries’ (“TCC”) Meetings.

With all these various meeting formats comes a range of outputs and products that the Council can decide to issue. These outputs and products include Resolutions, which require an affirmative vote of nine or more members, including the vote (affirmative or abstention) of the five permanent members of the Security Council (“P5”) in a public meeting. Resolutions are “adopted.” Presidential Statements are adopted by consensus in informal consultations or by a “no objection” procedure. The President of the Security Council reads out the statement in a public meeting.

The type of activity that one most associates with UN is negotiation; and there are, you will be pleased to know, a lot of these, along with well-defined processes that dictate how they work. Each Council agenda item has a “lead country”, also known as the “pen holder”. This country has the responsibility for drafting all related Council documents, scheduling, and running all related negotiations, and is the official liaison on the issue with the UN secretariat staff and the countries in question. The P5 divvy up the pen holders each year. While having the “pen” often means much more work, it also gives the pen holder country much more control over the text and negotiations.

On some issues, there may be “Core Group” or “Friends” negotiations before the Security Council ones. The Core Group consists of member states that are not necessarily on the SC but have

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strong interests in the issue. Some but not all SC members will be in a Core Group.

When a draft resolution is agreed to by negotiators, the pen holder will put the document into “silence” and will give a deadline.

Once silence has passed without being broken, it will then be put into “blue.” It is called blue because the UN has special printers that print the final text in the color blue. At this point, there is no turning back, the resolution is ready to be adopted and issued. Once a draft has been put into blue, occasionally delegations will “co-sponsor” the resolution as a sign of support for the text.

A United Nations Security Council Resolution is made up of two main parts. The first part consists of preamble paragraphs (“pp” for short), followed by numbered paragraphs called the operating paragraphs (“op” for short). Ops are more important than pps because that is the part where the orders are given and followed.

ELECTION OF NON-PERMANENT MEMBERS (“NPMS”) TO THE UN SECURITY COUNCIL Every year the General Assembly elects five NPMs for a twoyear term. The 10 NPM seats are distributed according to regional groupings: five for Africa and Asia (Asia includes Pacific Small Island Developing States); one for Eastern Europe; two for Latin America and the Caribbean; and two for Western Europe and Other (New Zealand’s group).

There are no Charter-specified requirements for election to an NPM seat, but the Charter directs the General Assembly to consider candidates’ contributions to peace and security, the UN’s other purposes, and to equitable geographic distribution before all else. In practice, NPM candidates are elected on the basis of their record in peacekeeping, security, environment and poverty issues, representation of a significant demographic group, and financial contributions to the UN budget. Status and lobbying power also play a large role.

Negative factors include domestic insecurity, concurrent campaigning for another office or seat, or a record of defying the Security Council (e.g., North Korea and Iran). Of the 193 UN Member States, 68 have never been elected to the Security Council.

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ELECTORAL PROCESS The election is held by secret ballot and there are no nominations.

Retiring NPMs are not eligible for immediate re-election. An NPM candidate must be elected by a two-thirds majority of the General Assembly, or 129 of the body’s 193 votes. A candidate must obtain a two-thirds majority even if it is running on a “clean slate”—that is, endorsed by its region and thus uncontested.

New Zealand has been elected three times to the Security Council: 1954–55; 1966 (a one-year term when the Council was enlarged to its current size); and 1993–94. New Zealand will know in October 2014 whether it is successful this time around.

THE SYRIA CHALLENGE Arguably the most compelling current security and human rights challenge in the world is the crisis in Syria. On this still unfolding challenge, the United States and New Zealand are of one mind. Syria is a good example of how—based on our common values—we work together on some of the most pressing issues of the day.

Together we are working to advance the protection and the human rights of those innocents affected, to develop an enduring peace, and to ensure that the new Syria will be a secure, stable, tolerant society with a democratic and open government.

Security Council inertia on Syria The rapidity of the deterioration of Syria was, regrettably, not matched by the speed of Security Council action to arrest it. Both the United States and New Zealand have been frustrated by inaction in the Security Council on Syria.

In 2011 Susan Rice, then United States Ambassador to the UN, said the Russian and Chinese veto of an October 2011 Security Council Resolution—which had been re-worded three times to placate Moscow and Beijing, and merely condemned the Assad regime’s crackdown on anti-government protesters—demonstrated these countries’ willingness to use their veto to “defend dictators” and to “maintain solidarity among a certain group of countries.”1 1. Remarks by Ambassador Susan E. Rice, U.S. Permanent Representative to the United Nations, at the Security Council Stakeout, on the Veto of a UN Security Council Resolution on Syria, U.S. MISSION TO THE UNITED NATIONS (Oct. 4, 2011), http://usun.state.gov/briefing/statements/2011/175028.htm.

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New Zealand Foreign Minister Murray McCully voiced New Zealand’s frustration in his September 2012 speech to the General Assembly when he asked, “what does it take” for the Security Council to act over crimes as abhorrent as those of the Assad regime?2 International calls for the use of force against the Assad regime following its use of chemical weapons refocused diplomatic attention and led directly to the passage of Security Council Resolution 2118 which required Assad to surrender his chemical weapons—a process which is now underway, with a deadline of destroying all such weapons by June this year.

Humanitarian assistance on Syria Resolution 2118 calls on Member States to increase their humanitarian aid contributions for Syria. To date, the United States has given more than NZ$1.25 billion in humanitarian assistance— more than any other country—to the Syrian people. New Zealand has donated NZ$12.5 million, with NZ$5 million of that amount announced just last month.

CONCLUSION: THE UN—AN INDISPENSABLE ORGANIZATION There are pessimists who say that when countries gather at the UN, nothing happens, save the exchange of meaningless words. But the UN serves many practical and noble purposes that benefit all nations. The UN remains the most powerful repository of international legitimacy—and international law—which gives it the credibility needed to address the regional and global challenges of today and tomorrow.

The United States knows this, as does New Zealand, and countless other nations. This is why we work arm-in-arm within the UN to make the world a better place for all its citizens. Solving regional and global problems today requires us to think both regionally and globally, to see the intersections and connections linking nations and regions and interests, to bring people together as only the United Nations can.

2. Murray McCully, New Zealand Foreign Minister, Address Before the U.N. General Assembly, in U.N. GAOR, 67th Sess., 18th plen. mtg. at 21, U.N. Doc. A/67/PV.18 (Sept. 29, 2012).

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The United States and New Zealand recognize that the UN is an indispensable institution to address the critical challenges of today and tomorrow. In his address to the General Assembly in 1961 following the tragic death of UN General Secretary Dag Hammarskjold in a plane crash while on a UN mission in Africa, President Kennedy ably summed up both the essential challenge and the essential importance of the organization: The problem is not the death of one man—the problem is the life of this Organization. It will either grow to meet the challenges of our age, or it will be gone with the wind, without influence, without force, without respect. Were we to let it die—to enfeeble its vigour—to cripple its powers—we would condemn our future.3

3. John F. Kennedy, President of the United States, Address Before the U.N. General Assembly, in U.N. GAOR, 16th Sess., 1013th plen. mtg., at 55, U.N. Doc. A/16/PV.1013 (Sept. 25, 1961).

GLOBAL ANTI-CORRUPTION COMPLIANCE: THE ROLE OF CULTURAL COMPARISONS WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL: KRINOCK LECTURE 2014 TORONTO, ONTARIO KENNETH E. JULL* Thank you for inviting me to speak about Global Anti-Corruption Compliance. Justice Todd Archibald and I have been working tirelessly over the last decade in the area of corporate compliance and it is nice to see that there is a new wave of compliance in the United States and Canada. The United States has enforced its Foreign Corrupt Practices Act (“FCPA”) on a global scale and Canada is committed to rigorous enforcement of its Corruption of Foreign Public Officials Act (“CFPOA”). Canada has joined the international set of enforcement actions with the cases of Niko Resources Ltd.,1 Griffiths Energy International Inc.,2 and the recent Karigar case, which I will talk about tonight. My wife says that I tend to “rant” about compliance and she is here tonight to suffer through another lecture.

I strongly believe in the role of cross-cultural comparisons in the field of compliance. The Thomas M. Cooley Law School is to be congratulated for its initiative in coming to Canada and allowing us to share our perspective. There is academic commentary that law schools ought to take a multi-jurisdictional approach to global anticorruption regimes.3 Justice Archibald and I are proud of our textbook used in the course, as we apply principles of risk management that are global in nature.

*

Kenneth E. Jull is counsel at Gardiner Roberts LLP in Toronto. Mr. Jull is the coauthor of Regulatory and Corporate Liability: From Due Diligence to Risk Management, which is used as a textbook in his courses taught at the University of Toronto, Faculty of Law and Osgoode Hall Law School. Mr. Jull received his B.A. from the University of Toronto and his LL.B. and LL.M. degrees from Osgoode Hall Law School.

1. R. v. Niko Res. Ltd., 2011 CarswellAlta 2521 (Can. Alta. Q.B.) (WL).

2. R. v. Griffiths Energy Int’l, [2013] A.J. No. 412 (Can. Alta. Q.B.) (QL).

3. See Alison von Rosenvinge, Global Anti-Corruption Regimes: Why Law Schools May Want to Take a Multi-Jurisdiction Approach, 10 German L.J. 785 (2009).

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To illustrate the role of culture, I want to tell a story about scotch.

Not just any scotch, but 30-year-old Macallan scotch. I had a client who wanted to serve this scotch at a celebration of the completion of the first phase of a project in Vietnam. The client called me and asked if it would be appropriate to serve 30-year-old Macallan at the celebration where there would be government officials present. They also wanted to give away Apple iPods with some promotional material on them about the second phase of the project. My first “gut reaction” was that serving the scotch would be fine as the government officials were not taking the bottles with them and what they consumed would be through their systems in eight hours. The iPods concerned me as they were gifts that might be used to seek an advantage.

Before I gave advice to our client, I decided to consult my friend Paul McNulty, former U.S. Deputy Attorney General and author of a milestone statement on federal prosecution of business organizations—the “McNulty Memorandum”4—considered a valuable element in determining how a corporation should respond to allegations of criminal wrongdoing.

Paul returned my call right away, and his response was the complete opposite of my initial “gut reaction” which demonstrated that the United States has a lot more experience in dealing with this topic than Canada has to date. Paul said that he was not concerned about the iPods as there is an exemption for reasonable promotional expenses (which we have in our legislation as well.)5 Paul then said, “I don’t like the idea of the scotch. I think that 30-year-old Macallan might be quite expensive and it will not pass the New York Times test.” Well, it turned out that Paul was right. One shot of Macallan 30-year-old Fine Oak costs approximately $53.87. A bottle costs £940.50 English pounds. If it was reported in the New York Times that foreign government officials in Vietnam had been served scotch that was worth about $1500 a bottle, this might be interpreted as a

4. Memorandum from Paul J. McNulty, Deputy Att’y Gen., U.S. Dep’t of Justice, to Heads of Dep’t Components, U.S. Att’ys (Dec. 12, 2006), available at http://www.justice.gov/sites/default/files/dag/legacy/2007/07/05/ mcnulty_memo.pdf.

5. Corruption of Foreign Public Officials Act, S.C. 1998, c.34, s.3(3) (Can.) (“No person is guilty of an offence under subsection (1) if the loan, reward, advantage or benefit . . . was made to pay the reasonable expenses incurred in good faith by or on behalf of the foreign public official that are directly related to . . . the promotion, demonstration or explanation of the person’s products and services . . . .”).

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gift that was made in order to obtain or retain an advantage in the course of business, even if this was not the case. Hence it failed the “New York Times test” and we advised the client not to serve the scotch. This does not, however, preclude me from personally indulging in a scotch once in a while.

CENTERPIECE OF THE CFPOA The “centerpiece”6 of the CFPOA is the offence of bribing a foreign public official, contained in section 3(1) of the Act as follows: 3(1) Bribing a foreign public official Every person commits on offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official (a) as a consideration for an act or omission by the official in connection with the performance of the official’s duties or functions; or (b) to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.

3(2) Punishment Every person who contravenes subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

6. DEP’T OF JUSTICE OF CAN., THE CORRUPTION OF FOREIGN PUBLIC OFFICIALS ACT: A GUIDE 3 (1999) [hereinafter CFPOA GUIDE].

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The potential scope of the concept of “agree” is illustrated by the first litigated case under the CFPOA, which is the case of R. v.

Karigar.7 KARIGAR AND CONSPIRACIES A conviction was entered in Karigar, decided on August 15, 2013. The Karigar case is important on a number of levels. Most importantly, the case demonstrates that the word “agrees” in section 3 of the Act imports the concept of conspiracy. Moreover, where there is a conspiracy, the prosecution need not prove the identity of the recipient of a proposed bribe as this could put foreign nationals at risk. The conspiracy to bribe had as its purpose the winning of a tender for a multi-million dollar contract to sell facial-recognition software to Air India, a state enterprise. Facial-recognition software may play an important role in preventing the boarding of planes by unauthorized persons. In light of recent and tragic events regarding the missing Malaysian plane, the importance of facial-recognition software is clear.

The Karigar case could be the subject of a Hollywood movie.

The following e-mail was sent by Karigar under the pseudonym “Buddy” to the Fraud Section of the U.S. Department of Justice (FCPA): There was a tender put out by Air India (Government of India enterprise) for a biometric security system, Cryptometrics bid on the system.

1. Cryptometrics Paid USD 200,000 to make sure that only two (2) companies were technically qualifieds.

2. They paid $250,000 for the minister to ‘bless’ the system. There are documents executed to return the funds if the contract is not awarded. There are recordings asking for the money back.

7. R. v. Karigar, 2013 ONSC 5199 (Can.). Superior Court Justice Hackland commented that this was the first prosecution under the CFPOA that had proceeded to trial. Id. ¶ 27.

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3. The People involved are mr. [sic] Robert Barra, US citizen, CEO of Cryptometrics and Dario Berini, COO of Cryptometrics, also US Citizen.

4. I am a Canadian Citizen on contract with the Canadian subsidiary of Cryptometrics.

5. What about my immunity?8 It is not necessary to establish a violation of section 3 of the CFPOA that a bribe be actually paid to a foreign official with the power to offer a business advantage, if the party believes that a bribe is being paid to such an official. The court found that Karigar believed that bribes needed to be paid as a cost of doing business in India and he agreed with others to pay such bribes. He believed bribes were in fact paid and he said as much to the Deputy Trade Commissioner in Mumbai and to U.S. authorities and to the Royal Canadian Mounted Police.

“Agrees” to Give or Offer As noted above, there was no evidence as to whether funds were offered or paid to anyone who qualified as a foreign public official under the Act. Justice Hackland found that this gap did not prevent a conviction under the conspiracy doctrine: In any event, I am satisfied that a conspiracy or agreement to bribe foreign public officials is a violation of the Act. The actus reus of this offence is the agreement to pursue an unlawful object. The CFPOA specifies that an agreement is an element of the offence itself. Section 3 (1) of the Act criminalizes the act of one who “. . . directly or indirectly gives, offers or agrees to give or offer . . . an advantage or benefit of any kind”. In my view, the use of the term “agrees” imports the concept of conspiracy into the Act. In doing so, it meets Canada’s obligations under the Convention to criminalize conspiracies to give or offer bribes to foreign public officials.

I also reject the accused’s submission on a policy basis. In my opinion if the word “agrees” in the

8. Id. ¶ 15.

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Act is restricted to the act of essentially two parties, “one to pay the bribe and one to receive the bribe”, the scope of the Act would be unduly restricted and its objectives defeated. Moreover, to require proof of the offer of or receipt of a bribe and the identity of a particular recipient would require evidence from a foreign jurisdiction, possibly putting foreign nationals at risk and would make the legislation difficult if not impossible to enforce and possibly offend international comity.

The evidence in this case satisfies me beyond a reasonable doubt that all of the contemplated recipients of bribes, as identified in the spreadsheets and in the electronic communications between the accused and his co-conspirators, were employees of Air India or the Minister of Civil Aviation himself and as such were foreign public officials within the meaning of the CFPOA.9 Level of Intent Required With respect to the mens rea of the offence set out in section 3 of the CFPOA, the Department of Justice Guide to the CFPOA states: No particular mental element (mens rea) is expressly set out in the offence since it is intended that the offence will be interpreted in accordance with common law principles of criminal culpability. The courts will be expected to read in the mens rea of intention and knowledge.10 The concept of mens rea includes the doctrine of willful blindness, which has been recently reviewed by the Supreme Court of Canada in the Briscoe11 decision. Justice Charron for the Court observed, “The doctrine of willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.”12

9.

10.

11.

12.

Id. ¶¶ 28–30.

CFPOA GUIDE, supra note 6, at 3.

R. v. Briscoe, 2010 SCC 13 (Can.).

Id. ¶ 21.

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The concept of willful blindness has a U.S. parallel in the doctrine of conscious avoidance.13 This concept has been developed in the anti-corruption area, most recently in the colorful case of United States v. Kozeny14 case involving the “Pirate of Prague.”15 Despite the parallels to a Hollywood script, the Canadian media gave the Karigar case very little attention. Hollywood North does not exist when it comes to press coverage of corruption. I have a theory as to why this is, which has no scientific basis and is purely speculation. I think that Canadians believe in the stereotype that we are polite and law abiding, and corruption is an anomaly which does not deserve to be covered. Perhaps this perception may change over time, or if Jimmy Kimmel turns his attention to the CFPOA. KARIGAR AND SENTENCING Karigar was sentenced on May 23, 2014, to a penitentiary term of three years for conspiring to bribe several Indian government officials.16 Superior Court Justice Hackland ruled that Karigar “had a leading role in a conspiracy to bribe Air India officials in what was undoubtedly a sophisticated scheme to win a tender for a Canadian based company.”17 The Court issued the following warning: “Any person who proposes to enter into a sophisticated scheme to bribe

13. ROBERT W. TARUN, THE FOREIGN CORRUPT PRACTICES HANDBOOK: A PRACTICAL GUIDE FOR MULTINATIONAL GENERAL COUNSEL, TRANSACTIONAL LAWYERS AND WHITE COLLAR CRIMINAL PRACTITIONERS 5 (2d ed. 2012).

14. 664 F. Supp. 2d 639 (S.D.N.Y. 2009).

15. The defendant, Viktor Kozeny, was commonly referred to in the media as the “Pirate of Prague.” See, e.g., David Glovin, Pirate of Prague Invokes Napoleon, Mandela as He Denies Fraud, BLOOMBERG (Oct. 1, 2008), http://www.bloomberg.com/apps/news?sid=aYo5XHTxYDT0&pid=newsarchive.

Tapes of phone conversations in this case are illustrative of the type of discussions that constitute conscious avoidance or deliberate ignorance. The following passage is a transcript of Kozeny’s co-defendant’s words: What happens if they break a law in . . . Kazakhstan, or they bribe somebody in Kazakhstan and we’re at dinner and . . . one of the guys says, “Well, you know, we paid some guy ten million bucks to get this now.” I don’t know, you know, if somebody says that to you, I’m not part of it . . . I didn’t endorse it. But let’s say [] they tell you that. You got knowledge of it. What do you do with that? . . . I’m just saying to you in general . . . do you think business is done at arm’s length in this part of the world.

Kozeny, 664 F. Supp. 2d at 387.

16. R. v. Karigar, 2014 ONSC 3093 (Can.).

17. Id. ¶ 36.

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foreign public officials to promote the commercial or other interests of a Canadian business abroad must appreciate that they will face a significant sentence of incarceration in a federal penitentiary.”18 In his reasons for sentence Justice Hackland stated, “The idea that bribery is simply a cost of doing business in many countries, and should be treated as such by Canadian firms competing for business in those countries, must be disavowed. The need for sentences reflecting principles of general deterrence is clear.”19 Aggravating Factors Justice Hackland identified a number of aggravating factors including the following: (a) This was a sophisticated and carefully planned bribery scheme intended to involve senior public officials at Air India and an Indian Cabinet Minister.

If successful, it would have involved the payment of millions of dollars in bribes and stock benefits, over time. . . . (b) . . . [Karigar’s] participation in the bidding process involved other circumstances of dishonesty such as the entry of a fake competitive bid to create the illusion of a competitive bidding process and the receipt and use of confidential insider information in the bid preparation. (c) . . . [Karigar] candidly relat[ed] to a Canadian trade commissioner that bribes had been paid and then urged the Canadian Government’s assistance in closing the transaction. (d) Mr. Karigar personally conceived of and orchestrated the bribery proposal including providing the identity of the officials to be bribed and the amounts proposed to be paid as reflected in financial spreadsheets he helped to prepare.20

18. Id. 19. Id. ¶ 8.

20. Id. ¶ 11.

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Mitigating Factors The following mitigating factors were identified by Justice Hackland: (a) There was a high level of co-operation on [Karigar’s] part concerning the conduct of the prosecution. Indeed he exposed the bribery scheme to authorities following a falling out with his coconspirators. He unsuccessfully sought an immunity agreement. A great deal of trial time was avoided as a result of [Karigar’s] extensive admissions . . . . (b) Mr. Karigar appears to have been a respectable businessman all of his working life, prior to his involvement in this matter. He had no prior criminal involvements. He is also in his late 60’s and not in the best of health. (c) Of considerable importance was the fact that the entire bribery scheme was a complete failure.21 RISK ASSESSMENT Risk assessment is highly relevant to compliance.

1. Proper risk management will reduce the risk of noncompliance; 2. A robust risk assessment matrix will make it more difficult to prove that an organization has been willfully blind to the payment of bribes; and 3. The parties’ provision of the Criminal Code expands the concepts of corporate liability to require that senior officers take all reasonable steps to prevent corruption that they become aware of. In the context of large payments being made from an organization’s financial resources, the requirement to take all reasonable steps makes risk assessment essential.

21. Id. ¶ 12.

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METHODOLOGY: A RISK MATRIX Justice Archibald and I have developed a risk matrix analysis in our textbook, which we derived from the engineering field and applied to legal concepts. Risk assessment requires a balancing of two fundamental concepts: “precautions taken to avoid the event” versus “systems to measure potential gravity of impact.” The two categories can be used to generate a matrix that directs priorities in the taking of preventative steps.

The risk management matrix has been accepted within engineering and environmental fields for some time now.22 Matrix analysis is also used by the federal government. For example, the Treasury Board of Canada has developed a sophisticated corporate risk profile that color codes a risk matrix and sets out plans of action based on the level of risk.23 Our risk matrix methodology has been cited in the International Chamber of Commerce Antitrust Toolkit.24 My wife makes fun of my enthusiasm for the matrix. She claims that when we plan a holiday, that I weight the precautions to avoid problems on the trip against the potential to have fun. She may be right.

APPLICATION OF MATRIX ANALYSIS TO ANTI-CORRUPTION Foreign Corrupt Practices: Calculation of the Probability of NonCompliance The frequency of risk of corrupt practices can be analyzed under the conglomerate heading of “Precautions Taken to Avoid the Event.” The following ten factors are subsumed under this heading: • • •

Preventative systems; Foreseeability of the effect; Alternative solutions and scenarios;

22. See RISK ASSESSMENT AND MANAGEMENT HANDBOOK FOR ENVIRONMENTAL, HEALTH, AND SAFETY PROFESSIONALS passim (Rao V. Kolluru et. al. eds., 1996).

23. Guide to Corporate Risk Profiles, TREASURY BOARD OF CAN. SECRETARIAT (July 11, 2011), http://www.tbs-sct.gc.ca/tbs-sct/rm-gr/guides/gcrp-gepro02eng.asp.

24. INT’L CHAMBER OF COMMERCE, THE ICC ANTITRUST COMPLIANCE TOOLKIT 23 n.21 (2013), available at http://www.iccwbo.org/Data/Policies/ 2013/ICC-Antitrust-Compliance-Toolkit-ENGLISH/.

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Past compliance; Past efforts to address the problem; Over what period of time, and promptness of response; Skill level of the accused; Matters beyond control including technological limitations; Complexities; and Industry standards.

Each heading may result in a probability percentage, which when combined with the other headings gives a rough estimation of the aggregate probability of risk of corrupt behavior.

Calculation of the Potential Gravity of Harm The following three factors are relevant to the gravity of the impact or harm: • • •

Gravity of adverse effect; Character of the neighborhood; and Economic considerations.

In calculating the potential gravity of harm, an entity must evaluate both the seriousness of harm as reflected by legislative risk assessment, multiplied by the volume of the product or problem in issue. The risk assessment required in Niko specifically requires an assessment of volume: in particular foreign bribery risks facing the company, including but not limited to its geographic organization, interactions with various types and levels of government officials, industrial sectors of operation, involvement in joint venture agreements, importance of licences and permits in the company’s operations, degree of governmental oversight and inspection, and volume and importance of goods and personal clearing through customs and immigration.25

25. Agreed Statement of Facts dated June 23, 2011, app. A, § 2(c), R. v. Niko Res. Ltd., 2011 CarswellAlta 2521 (Can. Alta. Q.B.) (WL) (emphasis added).

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DRAWING THE MATRIX The risk management matrix combines the relative gravity of potential harm in relation to the precautions taken to ensure compliance.

Likelihood of Compliance (compliance history/willingness and capacity to comply)

Legal audit levels and priorities

Potential Gravity of Harm Level 1 (Low)

Level 2

Level 3

Level 4

Level 5 (High)

Category Compliance A (High) training Category

Legal review

B

of financial and compliance audits

Category C

Legal audit of due diligence systems

Category

Internal

D

investigation Immediate and Comprehensive Rectification

Category

Self-reporting

E (Low)

to Regulator: negotiating immunity or leniency

The above matrix sets out ranges of priorities. This is a fairly basic model, which will be significantly expanded in practice. In the lowest quadrant of risk, compliance training will be appropriate, based on existing Codes of Conduct.

The second level of risk contemplates that the legal department, or external legal counsel, will review the financial and compliance audits that have been conducted internally to ensure compliance with the CFPOA. The third or medium level of risk requires that the legal department or external legal counsel conduct an audit of the due diligence system in place with respect to CFPOA compliance. This

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type of audit is more advanced than the second stage as it requires the legal department to make its own inquiries and review documents, whereas the second stage only requires that the legal advisor review the results of the audits as done internally.

The fourth stage of internal investigation is a quantum leap, and reflects the fact that level four is serious in terms of probability and gravity. An excellent reference in this regard is Rober Tarun’s chapter on “Conducting a Foreign Corrupt Practices Act Investigation” in his book, The Foreign Corrupt Practices Act Handbook.26 The internal investigation will require interviews and retaining experts as required, such as forensic accountants. Reports must be prepared to the company and board of directors along with legal advice concerning remedial measures and the potential for selfreporting, as contemplated in the highest quadrant of risk.

NEW SYSTEMS TO ENCOURAGE COMPLIANCE The sentence imposed in Karigar is a reminder of how important compliance systems are. It is essential that the tone from the top reject the notion that bribes are a cost of doing business. Agents cannot be used as vehicles to improperly achieve objectives.

Canadian companies must be ever vigilant in monitoring and, where appropriate, auditing the process of negotiations and agreements made with agents and third parties who may be interacting with government officials on their behalf. Individuals must realize that they can and will go to jail for bribery offenses.

Compliance programs will have enhanced importance where an individual employee or agent commits an offence. For example, in April of 2012, Garth Peterson, a former managing director for Morgan Stanley’s Real Estate Group in the People’s Republic of China, pleaded guilty to conspiring with others to circumvent Morgan Stanley’s internal controls in order to transfer a multi-million dollar ownership interest in a Shanghai building to himself and a Chinese public official.27 Peterson was sentenced to nine months in jail despite the government’s request for a five- to six-year sentence,28 and the SEC announced civil charges and a settlement with Peterson.29

26. TARUN, supra note 13, ch. 8.

27. United States v. Peterson, No. 12-CR-224, 2012 WL 1448108 (E.D.N.Y. Apr. 26, 2012).

28. See Christopher M. Matthews, Former Morgan Stanley Exec Gets Nine Months in FCPA Case, WALL ST. J. CORRUPTION CURRENTS BLOG (Aug. 17, 2012,

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In the Morgan Stanley case, the U.S. government declined to bring any enforcement action against the company related to Peterson’s conduct given that Morgan Stanley constructed and maintained a system of internal controls, which provided reasonable assurances that its employees were not bribing government officials.

Morgan Stanley had voluntarily disclosed the matter and cooperated throughout the Department of Justice’s investigation.30 The risk assessment required by organizations in the area of foreign corrupt practices is a complex exercise as it is multijurisdictional and multi-disciplinary. The mathematical model of a risk matrix will assist in organizing this complexity and providing a plan of action going forward. In Canada, this is no longer an exercise conducted by only those companies interested in corporate social responsibility. It is now legally essential.

12:11 PM), http://blogs.wsj.com/corruption-currents/2012/08/17/former-morganstanley-exec-gets-nine-months-in-fcpa-case/.

29. Press Release, U.S. Sec. & Exch. Comm’n, Litigation Release No. 22346, SEC Charges Former Morgan Stanley Executive with FCPA Violations and Investment Adviser Fraud (Apr. 25, 2012), available at https://www.sec.gov/litigation/litreleases/2012/lr22346.htm.

30. See id.

DISTINGUISHED BRIEF The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Western Michigan University Thomas M. Cooley Law Review. To preserve the authors’ style, the brief has been reprinted in its entirety, exactly as submitted to the Michigan Supreme Court.

INTRODUCTION INTERNATIONAL UNION, UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA et al., Plaintiffs-Appellants, v.

NATALIE YAW et al., Defendants-Appellees.

The Michigan Legislature enacted Freedom to Work legislation that provides every Michigan worker, public and private, the opportunity to opt-out of membership in a union. The union filed suit, alleging that the Freedom to Work legislation’s applicability to state-classified public employees was unconstitutional. The union argued that the Michigan Constitution granted the Civil Service Commission exclusive authority to set all conditions of employment.

The Michigan Chamber of Commerce argued that the Constitution grants the Legislature express authority to enact laws regarding employment, and that the Civil Service Commission’s authority is merely the complementary power to “regulate” such conditions.

Alternatively, the Chamber of Commerce argued that compulsory membership in a union is not a “condition of employment” for purposes of the Civil Service Commission’s authority. The Michigan Supreme Court held that the Civil Service Commission lacked the authority to require collection of agency shop fees.

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BIOGRAPHICAL STATEMENT JOHN J. BURSCH—co-chairs the Appellate & Supreme Court Practice at Warner Norcross & Judd. He has argued nine cases before the U.S. Supreme Court and eighteen before the Michigan Supreme Court, including more than 12% of all the civil cases on the Michigan Supreme Court’s docket during this past term. He is the principal author of the Michigan Supreme Court’s Guide for Counsel, and he was recently inducted as a member of the American Academy of Appellate Lawyers, being only the seventh Michigan attorney so honored. He is also the co-founder of Michigan’s leading appellate news source, the One Court of Justice Blog, as well as the WNJ Appellate Practice Academy. The Michigan Chamber of Commerce’s amicus brief in International Union v. Yaw is his fifth brief to be recognized with a Distinguished Brief Award.

GARY GORDON—is currently a member of Dykema Gossett where his practice focuses on regulatory matters, energy law, election law, constitutional issues, and litigation. Mr. Gordon was previously the Chief Deputy Attorney General for the State of Michigan, where he was responsible for all operations of the office and the oversight of approximately 300 attorneys. In his practice, Mr. Gordon has helped draft legislation on various topics. He has testified before the Michigan House of Representatives and Senate committees on labor matters and standards for redistricting. He recently provided testimony to the Nevada Assembly and Senate committees on federal preemption and First Amendment implications of picketing regulation. Mr. Gordon continues to litigate before regulatory agencies, in state and federal courts, and has argued scores of appellate cases before the Michigan appellate courts, and the U.S. Sixth Circuit Court of Appeals. He has participated in cases before the U.S. Supreme Court. Mr. Gordon has been recognized in The Best Lawyers in America for Administrative and Regulatory Law and Government Relations Practice from 2010 to 2015. He has also been named Lansing “Lawyer of the Year” for 2011 for Government Relations. He is currently listed as a Michigan Leading Lawyer in the area of Election, Political and Campaign, and Governmental, Municipal, Lobbying & Administrative Law by the Leading Lawyers Network, and is the Recipient of an AV Preeminent Rating by Martindale-Hubbell.

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LEONARD C. WOLFE—practices in the areas of general corporate representation, education law, public-policy litigation, government reorganization and restructuring, and general administrative law. Mr. Wolfe has been involved in the drafting of complex legislation and administrative rules on compliance and licensing, economic development, the Open Meetings Act, the Freedom of Information Act, state ethics and conflicts of interest, casino gaming, telecommunication, state school aid, school funding, and other school reform issues. In addition, Mr. Wolfe has experience with department and agency investigations, performance audits, and the drafting of Interlocal Agreements, Intergovernmental Transfer Agreements, Executive Orders, Executive Directives, and Advisory Opinion requests. Mr. Wolfe is currently a member of Dykema Gossett’s Executive Committee and a former Director of the firm’s Regulated Industries Department and Practice Group Leader of the Government Policy Practice Group.

COURTNEY F. KISSEL—practices with a focus on government policy and public finance. In her government-policy practice with Dykema Gossett, Ms. Kissel has represented a number of universities on diverse constitutional issues, including university funding, constitutional autonomy, and academic freedom. Ms. Kissel has also represented clients analyzing issues under the Open Meetings Act and the Freedom of Information Act. In 2014, Ms. Kissel was hired by the State of Wisconsin to advise the Governor regarding the Menominee Tribe’s two-part determination, related to the Tribe’s request to acquire land in trust for a casino under the Indian Gaming Regulatory Act. In her public finance practice, Ms. Kissel has served as bond counsel and underwriter’s counsel to numerous state and local issuers.

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DISTINGUISHED BRIEF The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Western Michigan University Thomas M. Cooley Law Review. To preserve the authors’ style, the brief has been reprinted in its entirety, exactly as submitted to the Michigan Supreme Court.

INTRODUCTION FORD MOTOR COMPANY, Plaintiff-Appellant, v.

MICHIGAN DEPARTMENT OF TREASURY, Defendant-Appellee.

This case concerned the date on which the taxpayer, Ford, first made a tax refund claim. The exact date was important because, by law, certain tax refund claims accrue statutory interest after 45 days if they remain unpaid. Ford argued that by marking an “X” next to the phrase “disagrees with this determination” on its response to a preliminary audit determination letter, it had requested a refund, and therefore that interest began to accrue 45 days later. The Michigan Department of Treasury saw it differently; in its view, Ford first made its refund claim when it filed a complaint in the Michigan Court of Claims nearly three months later that affirmatively asked for a refund.

In this brief, Treasury challenged Ford’s position that its response to the preliminary audit determination letter met the statutory requirements of a “claim for refund,” arguing that marking an “X” next to “disagrees with this determination” provided only notice of a general disagreement with the audit or a part of the audit, but did not amount to a claim for refund. The State’s brief argued that Ford first articulated a refund claim that Treasury could respond to when Ford

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filed its complaint and articulated the dollar amount and theory for the previously unspecified disagreement.

The Supreme Court held that Ford’s initial letter was a sufficient claim to begin the 45-day waiting period for accrual of interest.

BIOGRAPHICAL STATEMENT AARON LINDSTROM—is a graduate of the United States Military Academy at West Point and served in the Army for five years on active duty as a cavalry officer. After completing his service, he graduated from the University of Chicago Law School and clerked for the Honorable Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit. He then worked in private practice, focusing on appeals, in Washington, D.C. with Gibson, Dunn & Crutcher and in Grand Rapids with Warner Norcross & Judd. He was appointed Solicitor General in 2013. As the Solicitor General, he oversees appellate matters for the State and its agencies and represents Michigan in the United States Supreme Court, the Michigan Supreme Court, and other appellate courts. He received a Distinguished Brief Award from the Law Review in 2012, and this year also received a Best Brief Award from the National Association of Attorneys General for briefings in the U.S. Supreme Court.

MATTHEW B. HODGES—is an assistant attorney general working in the revenue and collections division. Prior to joining the Attorney General’s Office in 2011, Matt worked for the Michigan Tax Tribunal as a hearing referee and later as an administrative law specialist. He is a graduate of James Madison College at Michigan State University and Michigan State University College of Law. Matt also received a Distinguished Brief Award from the Law Review in 2013.

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DISTINGUISHED BRIEF The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Western Michigan University Thomas M. Cooley Law Review. To preserve the author’s style, the brief has been reprinted in its entirety, exactly as submitted to the Michigan Supreme Court.

INTRODUCTION PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v.

RAYMOND CURTIS CARP, Defendant-Appellant.

The State’s brief addressed the question whether the U.S. Supreme Court’s decision in Miller v. Alabama applied retroactively to cases that were final on direct review at the time Miller was decided. In Miller, the Court held that a state cannot impose a mandatory sentence of life without parole on juveniles who committed murder without a process that enabled the sentencing court to consider an offender’s youth and other characteristics before imposing a particular penalty. The Attorney General argued that under federal law this decision does not apply retroactively, contending that the change was procedural and not substantive, and was not a watershed change of procedure. The Attorney General also argued that the change did not apply retroactively under Michigan’s rules of retroactivity. The Michigan Supreme Court held that the United States Supreme Court’s decision in Miller does not apply retroactively.

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BIOGRAPHICAL STATEMENT ERIC RESTUCCIA—is the Deputy Solicitor General for the State of Michigan and has worked for the Department of Attorney General for almost 12 years. During that time, he also served as the Michigan Solicitor General from 2008 until 2011. He has argued three times in the United States Supreme Court and more than ten times in both the Michigan Supreme Court and the U.S. Court of Appeals for the Sixth Circuit. Before working in the Department of Attorney General, he served as an assistant Prosecuting Attorney in Wayne County for more than five years and tried 25 murder cases. Before that, he clerked for two years for Justice Dorothy Comstock Riley of the Michigan Supreme Court and worked for two years in the Michigan Court of Appeals.

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WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW SPECIAL PATRONS Mike Korn

David C. Whipple LAW FIRM BENEFACTORS Bailey, Smith & Bailey, P.C. The Honorable Avern Cohn Krause, Moorehead & Draisen, P.A.

2015 DISTINGUISHED BRIEF REVIEW PANEL Professor Erika Breitfeld Professor Mark Cooney Professor Carly Self

Professor Bradley Charles Professor David Finnegan Professor David Tarrien