Referring to the previous version of FEMA (below), explain the need for the current amendments to the legislation and the particular effects of these amendments.

RSC 1985, c. F-29

1. This Act may be cited as the Foreign Extraterritorial Measures Act. 1984, c. 49, s. 1.

2. In this Act,

"antitrust law" means a law of a foreign jurisdiction of a kind commonly known as an antitrust law, and includes a law having directly or indirectly as a purpose the preservation or enhancement of competition between business enterprises or the prevention or repression of monopolies or restrictive practices in trade or commerce; "foreign state" "foreign state" means a country other than Canada, and includes

(a) any political subdivision of the foreign state,

(b) the government, and any department, of the foreign state or of a political subdivision thereof, and

(c) any agency of the foreign state or of a political subdivision thereof;

"foreign tribunal" means a tribunal of a foreign state or of an organization of states;

A "judgment" includes a decree or order;

"record" includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy or portion thereof;

"tribunal" includes any court, body, authority or person having authority to take or receive information, whether on its or his behalf or on behalf of any other court, body, authority or person. 1984, c. 49, s. 2.

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, the Attorney General of Canada may, by order, prohibit or restrict

(a) the production before or the disclosure or identification to, or for the purposes of, a foreign tribunal of records that, at any time while the order is in force, are in Canada or are in the possession or under the control of a Canadian citizen or a person resident in Canada;

(b) the doing of any act in Canada, in relation to records that, at any time while the order is in force, are in Canada or are in the possession or under the control of a Canadian citizen or a person resident in Canada, that will, or is likely to, result in the records, or information as to the contents of the records or from which the records might be identified, being produced before or disclosed or identified to, or for the purposes of, a foreign tribunal; and

(c) the giving by a person, at a time when that person is a Canadian citizen or a resident of Canada, of information before, or for the purposes of, a foreign tribunal in relation to, or in relation to the contents or identification of, records that, at any time while the order is in force, are or were in Canada or under the control of a Canadian citizen or a person resident in Canada.

(2) Where production before or disclosure or identification to, or for the purposes of, a foreign tribunal of a record and the giving by a person of information before, or for the purposes of, a foreign tribunal in relation to, or in relation to the contents or identification of, a record is prohibited or restricted by an order made under subsection (1), a tribunal in Canada shall not, for the purposes of proceedings before the foreign tribunal,

(a) where the order is in the nature of a prohibition, receive the record or information; or

(b) where the order is in the nature of a restriction, receive the record or information if, as a result of so doing, the order may be contravened.

(3) An order made under this section may

(a) be directed to a particular person or to a class of persons;

(b) relate to a particular foreign tribunal or to a class of foreign tribunals; and

(c) relate to a particular record or to a class of records. 1984, c. 49, s. 3.

 

4. Where, on an application by or on behalf of the Attorney General of Canada, a superior court is satisfied that an order made under section 3 may not be complied with in relation to some or all of the records in Canada to which it relates, the court may issue a warrant authorizing a person named therein or a peace officer to seize those records and to deliver them to the court or a person designated by the court for safe-keeping while the order remains in force, on such terms as to access to the records or return of all or any of the records as are fixed by the court having regard to the object to which the order is directed. 1984, c. 49, s. 4.

5. (1) Where, in the opinion of the Attorney General of Canada, a foreign state or foreign tribunal has taken or is proposing or is likely to take measures affecting international trade or commerce 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 business carried on in whole or in part in Canada or that otherwise has infringed or is likely to infringe Canadian sovereignty, the Attorney General of Canada may, with the concurrence of the Secretary of State for External Affairs, by order,

(a) require any person in Canada to give notice to him of such measures, or of any directives, instructions, intimations of policy or other communications relating to such measures from a person who is in a position to direct or influence the policies of the person in Canada; or

(b) prohibit any person in Canada from complying with such measures, or with any directives, instructions, intimations of policy or other communications relating to such measures from a person who is in a position to direct or influence the policies of the person in Canada.

(2) For the purposes of subsection (1), measures taken or to be taken by a foreign state or foreign tribunal include laws, judgments and rulings made or to be made by the foreign state or foreign tribunal and directives, instructions, intimations of policy and other communications issued by or to be issued by the foreign state or foreign tribunal.

(3) An order made under this section may be directed to a particular person or to a class of persons. 1984, c. 49, s. 5.

6. (1) An order made under section 3 or 5 (a) may be served on a person, other than a corporation, to whom it is directed by delivering it personally to him or, if that person cannot conveniently be found, by leaving it for him at his latest known address with any person found therein who appears to be at least sixteen years of age; or (b) may be served on a corporation to which it is directed by delivering it personally to the manager, secretary or other executive officer of the corporation or of a branch thereof.

(2) Where, on an application by or on behalf of the Attorney General of Canada, a superior court is satisfied that an order made under section 3 or 5 that is directed to a class of persons cannot reasonably be served in the manner described in paragraph (1)(a) or (b) on all or any of the persons included in the

class, the court may, by order, authorize service of the order on those persons in such other manner as it considers appropriate.

(3) An order varying or revoking an order made under section 3 or 5 may be served on the person to whom it is directed in any manner in which the order could have been served on that person. 1984, c. 49, s. 6.

7. (1) Every person who contravenes an order made under section 3 or 5 that is directed to him and that has been served on him in accordance with section 6

(a) is guilty of an indictable offence and liable to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding five years or to both; or

(b) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding two years or to both.

(2) A contravention of an order made under paragraph 3(1)(a) or (c) or 5(1)(a) or (b) that would be punishable as an offence under subsection (1) if committed in Canada is, if committed outside Canada, an offence under this Act that may be tried and punished in Canada as if it were committed in Canada, and proceedings in respect of such an offence may be instituted, tried and determined at any place in Canada.

(3) No proceedings with respect to an offence under this Act may be instituted without the consent of the Attorney General of Canada. 1984, c. 49, s. 7.

8. (1) Where a foreign tribunal has, whether before or after February 14, 1985, 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 relation to international trade or commerce involving 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 enforcement 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.

(2) Every order made under subsection (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.

(3) While an order made under subsection (1) is in force,

(a) in the case of an order made under paragraph (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), 0the 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.

(4) In any proceedings in Canada to recognize or enforce a judgment given by a foreign tribunal in proceedings instituted under an antitrust law, or to enforce a concurrent or subsequent judgment for contribution or indemnity 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) inrespect of the judgment. 1984, c. 49, s. 8.

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 or 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, 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), any amount obtained from that party by that person under the judgment; and

(b) in the case of an order made under paragraph 8(1)(b), 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.

(2) A court that renders judgment in favour of a party pursuant to subsection (1) may, in addition to any other means of enforcing judgment available to the court, order the seizure and sale of shares of any corporation incorporated by or under a law of Canada or a province in which the person against whom the judgment is rendered has a direct or indirect beneficial interest, whether the share certificates are located inside or outside Canada. 1984, c. 49, s. 9. . . .