45 ELIZABETH II

CHAPTER 28

An Act to amend the Foreign Extraterritorial Measures Act

R.S., c. F-29; 1995, c. 5

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. The long title of the Foreign Extraterri torial Measures Act is replaced by the following:

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

2. Section 2 of the Act is amended by adding the following in alphabetical order:

``foreign trade law''
« loi commerciale étrangère »

``foreign trade law'' means a law of a foreign jurisdiction that directly or indirectly af fects or is likely to affect trade or commerce between

      (a) Canada, a province, a Canadian citizen or a resident of Canada, a corpora tion 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;

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3. The Act is amended by adding the following after section 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.

4. The portion of subsection 3(1) of the Act before paragraph (a) is replaced by the following:

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 pow ers 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

5. Paragraphs 5(1)(a) and (b) of the French version of the Act are replaced by the following:

    a) de l'informer de cette mesure ou de toutes directives, instructions, indications d'orientation ou autres communications s'y rapportant et émanant d'un tiers en situation de diriger ou d'influencer les activités de cette personne;

    b) de se soustraire à cette mesure ou aux directives, instructions, indications d'o rientation ou autres communications visées à l'alinéa a).

6. (1) Subsection 7(1) of the Act is replaced by the following:

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 imprison ment 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 imprison ment for a term not exceeding two years, or to both.

(2) Section 7 of the Act is amended by adding the following after subsection (3):

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.

7. Sections 8 to 10 of the Act are replaced by the following:

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.

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 rela tion to international trade or commerce in volving 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 enforce ment 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 judg ment 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 enforce ment 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 recog nize 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 in demnity 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.

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 (LIBER TAD) 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.

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 damages 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 damages 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 extrajudi cial 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.

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.

8. The Act is amended by adding the schedule set out in the schedule to this Act.

COMING INTO FORCE

Coming into force

9. This Act or any of its provisions comes into force on a day or days to be fixed by order of the Governor in Council.