Elements of Proof of Obstructive Practices

Definition

“Obstructive practices” are defined as:

 (aa) deliberately destroying, falsifying, altering or concealing of evidence material to the investigation or making false statements to investigators in order to materially impede an investigation into allegations of a corrupt, fraudulent, coercive or collusive practice and/or threatening, harassing or intimidating any party to prevent it from disclosing its knowledge of matters relevant to the investigation or from pursuing the investigation, or

(bb) acts intended to materially impede the exercise of the Bank’s inspection and audit rights provided for  under par. 1.14 (e).

Elements of proof

Clause (aa):

Deliberately destroying, falsifying, altering or concealing of evidence   

“Deliberately” means to act intentionally and willfully, as opposed to accidently or negligently.  

Material to the investigation    

“Material” means evidence that is relevant to the investigation and important enough to potentially affect its outcome. 

Or making false statements to investigators  

The false statement must be made knowingly and willfully, and includes statements by project or government officials or private parties. 

In order to materially impede an investigation  

Here “materially” means to significantly impede (delay, block or defeat) an investigation, or to attempt do so. 

Into allegations of a corrupt, fraudulent, coercive or collusive practice 

The offense covers only investigations into violations of the above practices.

And/or threatening, harassing or intimidating any party  

“Party” includes any public or private entity, individual or company.

To prevent it from disclosing its knowledge of matters relevant to the investigation, or from pursuing the investigation 

This section also prohibits attempts to do so, whether or not successful.

Clause (bb):   

Acts intended to materially impede the exercise of the Bank’s inspection and audit rights provided for under par. 1.14 (e) 

This clause provides a very broad prohibition of any act that is intended to impede the exercise of audit rights.