May 26 2016 Martin Aquilina, Business Lawyer
You can sue individuals, corporations and, in certain circumstances, even the highest orders of government. What of intergovernmental organizations (IGOs)? Do they have juridical personality and if they do, are they subject to the jurisdiction of national courts and bound by all orders such courts can issue? One type of IGO is the so-called “specialized agencies”, which are bodies created as extensions of the United Nations. These agencies, which include the International Bank for Reconstruction and Development, a historical component of the World Bank as we know it today, enjoy a number of privileges and immunities, notably immunity from jurisdiction, from execution, and from taxes.[i] Their premises are inviolable and their property and assets, wherever located and by whomsoever held, are immune from search, requisition, confiscation, expropriation and any other form of interference.[ii] The archives of the specialized agencies, and in general all documents belonging to them or held by them, are inviolable, wherever located.[iii] The recent Canadian case of World Bank Group v Wallace[iv] provides a rare example of the World Bank’s immunity from disclosure of internal documents and from legal process for its personnel in action.
The case has its roots in the alleged acts of corruption surrounding the Padma Multipurpose Bridge Project in Bangladesh funded by the World Bank. The Integrity Vice Presidency (INT), an independent investigative unit within the World Bank, carried out its own investigation upon receiving information from tipsters that representatives of SNC-Lavalin Inc. were allegedly involved in a conspiracy to bribe government officials in the bidding process for a contract to supervise the Project. The investigation eventually led to a settlement between the World Bank and SNC-Lavalin Inc.
In addition, throughout its investigative process, INT passed on internal documents such as the tipsters’ emails to the Royal Canadian Mounted Police (RCMP). The RCMP conducted their own investigation and was able to obtain wiretap authorizations and a search warrant on the basis of the information obtained from INT. Eventually, this led to four individuals (three former employees of SNC-Lavalin and one individual alleged to be a representative of a Bangladeshi official) being charged under the Corruption of Foreign Public Officials Act (Canada)[v].
The four accused challenged the wiretap authorizations by way of an application to the Ontario Superior Court of Justice. They sought to enjoin INT to produce its internal documents and two INT investigators to appear before the court. At the trial court level, the judge decided in favour of the four accused. He recognized the immunities and privileges enjoyed by the World Bank but determined that those were waived when INT provided information to the RCMP. The World Bank obtained leave to appeal to the Supreme Court of Canada (SCC).[vi]
The SCC started off by emphasizing the importance of fighting corruption, stating that “[i]n order to tackle this global problem, worldwide cooperation is needed.”[vii] In addition, it noted that IGOs and law enforcement agencies complement each other in the fight against corruption and that immunities and privileges granted to IGOs by member states help to prevent interferences that could affect their independent operations. Then, the SCC, in finding that the trial judge had erred by interpreting immunity narrowly, recognized that “[s]hielding an organization’s entire collection of stored documents, including official records and correspondences, is integral to ensuring their proper, independent functioning.”[viii] While giving a broad interpretation by recognizing that immunity extends to the entire collection of stored documents, it also stated that the immunity afforded to the World Bank has force of law in Canada thanks to two Orders in Council[ix] and the Bretton Woods and Related Agreements Act[x]. In doing so, the Court provided a principled basis under Canadian law for INT’s records not being disclosable.
Ultimately, the SCC allowed the appeal and set aside the trial judge’s order for production of documents.
Although this decision only concerned the World Bank, it can have similar impact for other IGOs on the issue of immunity in general, and immunity from having to disclose internal documents and from legal process for its personnel in particular. The SCC’s decision and its interpretation of immunity is a positive milestone in fostering the cooperation between governments and IGOs in their crackdown on unlawful activities.
[i] Convention on the Privileges and Immunities of the Specialized Agencies, 21 November 1947, 33 UNTS 261 at ss. 4 and 9.
[ii] Ibid at s. 5.
[iii] Ibid at s. 6.
[iv] World Bank Group v Wallace, 2016 SCC 15.
[v] Corruption of Foreign Public Officials Act, SC 1998, c 34.
[vi] The World Bank, being a third party to the prosecution, was able to appeal directly to the SCC with leave by relying on the two decisions, Dagenais v Canadian Broadcasting Corp,  3 SCR 835 and A. (L.L.) v B. (A.),  4 SCR 536.
[vii] Supra note 1 at para 1.
[viii] Ibid at para 71.
[ix] (1) International Monetary Fund and International Bank for Reconstruction and Development Order and (2) International Development Association, International Finance Corporation and Multilateral Investment Guarantee Agency Privileges and Immunities Order.
[x] Bretton Woods and Related Agreements Act, RSC 1985, c B-7.
This article is for informational purposes only and does not constitute legal advice. If you wish to discuss your issue with a lawyer, contact Martin today. 613-747-2459 ext.308, [email protected]