New Wine in Old Bottles: Corrupt Contracts in Canadian Private Law

(with Jenna-Dawn Shervill) in Michael Joachim Bonell & Olaf Meyer (eds), The Civil Law Consequences of Corruption in International Commercial Contracts 37-75 (Springer 2015)

39 Pages Posted: 30 Apr 2018

See all articles by Joshua Karton

Joshua Karton

Queen's University Faculty of Law; National Taiwan University - College of Law

Jenna Dawn Shervill

Queen's University Belfast - School of Law

Date Written: 2015

Abstract

The Canadian criminal law on foreign corruption recently experienced great upheaval, as Canada worked to bring its legislation up to international standards following years of inadequate substantive law and lackadaisical prosecutions. Canadian private law, by contrast, has remained highly stable on paper, but longstanding doctrines have been effectively applied to modern, internationalized forms of corruption.

The chapter begins with an overview of the general criminal law doctrines relating to corruption, then discusses the Corruption of Foreign Public Officials Act and its application in practice, including the first conviction of an individual under the Act in 2013. It then turns to private law, surveying the tort and equitable remedies available to victims of corruption, and finally the contract law doctrines applicable to corrupt contracts.

Since Canada is a mixed jurisdiction, the chapter contains an internal comparative element. The Canadian common law and Quebec approaches are compared, and revealed to be more similar than one might expect. Modern Canadian common law tort and equitable remedies, and the corresponding provisions of the Code civil du Québec, provide a range of means by which both direct and indirect victims of corruption can recover compensatory damages. They also serve social objectives by providing for disgorgement of corruptly-acquired gains in most cases. The contract law doctrines relating to illegality and agency have become more flexible over time, so as to permit courts to enforce or not enforce contracts or severable parts of contracts as justice dictates.

Keywords: corruption, illegality, contract law, tort law, comparative law, Canadian law

Suggested Citation

Karton, Joshua and Shervill, Jenna Dawn, New Wine in Old Bottles: Corrupt Contracts in Canadian Private Law (2015). (with Jenna-Dawn Shervill) in Michael Joachim Bonell & Olaf Meyer (eds), The Civil Law Consequences of Corruption in International Commercial Contracts 37-75 (Springer 2015). Available at SSRN: https://ssrn.com/abstract=3161212

Joshua Karton (Contact Author)

Queen's University Faculty of Law ( email )

Macdonald Hall
128 Union St.
Kingston, Ontario K7L3N6
Canada

National Taiwan University - College of Law ( email )

No.1, Sec.4, Roosevelt Road
Taipei, 10617, 10617
Taiwan

Jenna Dawn Shervill

Queen's University Belfast - School of Law ( email )

School of Law
Belfast BT7 1NN, BT7 1NN
Ireland

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