World Bank jurisdictional immunity relating to information sharing, upheld

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Supreme Court of Canada: While deciding a matter the Court has upheld the immunity status and independence of international organizations by rejecting an attempt by a group of accused individuals to compel personnel of the World Bank Group to appear in court and produce various documents. The Court ruled unanimously that documents from World Bank Group investigations remain immune from document production requests that are part of domestic court proceedings, even if information related to those documents has been shared with and relied upon by domestic law enforcement agencies.

The decision arose in the context of a criminal proceeding under the Corruption of Foreign Public Officials Act where four parties are charged with offences as a result of an investigation triggered by a series of tips. The tips were received by a branch of the World Bank Group — a third party to the prosecutions — responsible for investigating allegations of fraud, corruption, and collusion with respect to projects financed by the World Bank Group. Wiretap authorizations were subsequently granted to the RCMP on the basis of information provided by the World Bank Group. In order to challenge the wiretap authorizations, the respondents sought to examine two senior investigators at the World Bank Group and compel production of documents in their possession by way of subpoena. Neither of the investigators complied with the subpoenas, causing the accused parties to bring this application for an order requiring production of the requested documents and for validation of the subpoenas. No representative of the World Bank Group appeared at the application hearing, nor was any evidence filed by it, leaving the Crown prosecutor to assert immunity on its behalf. The trial judge ultimately ordered production of various documents in the hands of the World Bank Group and validated the subpoenas. Since the decision affected the rights of a third party to the criminal proceedings, the decision was appealed by the World Bank Group, with leave, directly to the Supreme Court.

The bench writing through Moldaver and Côté JJ determined that the trial court judge erred for two reasons. First, documents and personnel of the World Bank benefit from immunity that cannot be waived in the case of documents, and must be expressly waived in the case of personnel. While the INT operates independently from the rest of the World Bank, the function it performs of ensuring that funds granted to projects are used for their intended purposes is part of the World Bank’s proper functioning and is contemplated in the same agreements that set out the immunities that apply to World Bank documents and personnel. Second, in the narrow context of the proceeding to challenge a wiretap authorization, the documents that the accused persons were seeking were not relevant.

In upholding the World Bank’s immunities, the Court seemed particularly swayed by public policy considerations about the importance of the immunities applicable to international organizations’ documents and personnel in the fight against corruption. It noted that these immunities are “integral to the independent functioning of international organizations” and that international financial institutions such as the World Bank “are particularly well placed to investigate corruption and serve at the frontlines of international anti-corruption efforts” The Court warned against interpreting the immunities of international organizations as capable of being waived through the action of sharing information with bodies such as the RCMP as such interpretations would potentially have “a chilling effect on collaboration with domestic law enforcement. In the view of the Court, “when international financial organizations, such as the appellant World Bank Group, share information gathered from informants across the world with the law enforcement agencies of member states, they help achieve what neither could do on their own” [World Bank Group v. Wallace, 2016 SCC 15, decided on 29.04.2015]

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