Newest Episode of Arrêt sur le Droit Podcast about Good Faith in Contracts

Arrêt sur le droit is a relatively new French-language podcast whose goal is to help people better understand decisions by the Supreme Court of Canada.

It is co-produced by the Bar Association of Montreal and CAIJ (the free legal information portal of the Quebec Bar Association) in collaboration with the Supreme Court of Canada. 

The most recent episode analyzes the Ponce v. Société d’investissements Rhéaume ltée decision (2023 SCC 25, October 27, 2023). The case was about the obligation of good faith imposed on corporate directors when dealing with shareholders.

Arrêt sur le droit is hosted by Michel Désautels who for years was one of the top current affairs hosts of the public broadcaster Société Radio-Canada. His guests for this episode are Paul Martel, a lawyer with Blakes, and Stéphane Rousseau, law professor at the Université de Montréal.

Recent Library of Parliament Legislative Summaries

The Library of Parliament in Ottawa has recently published a number of legislative summaries of important federal bills.

Among them are:

• Legislative Summary of Bill C-56: An Act to amend the Excise Tax Act and the Competition Act: "Bill C-56, An Act to amend the Excise Tax Act and the Competition Act (short title: Affordable Housing and Groceries Act), was introduced in the House of Commons on 21 September 2023 by the Deputy Prime Minister and Minister of Finance and received first reading that same day. The bill was passed by both chambers of Parliament after being amended in the House of Commons, and it received Royal Assent on 15 December 2023. Bill C-56 has two parts: Part 1 amends the Excise Tax Act (ETA) to temporarily enhance the Goods and Services Tax (GST) new residential rental property rebate in respect of new purpose-built rental housing. Part 2 amends the Competition Act to promote competition, particularly in the grocery sector. This legislative summary provides a brief description of the key amendments contained in Bill C-56."
• Legislative Summary of Bill C-48: An Act to amend the Criminal Code (bail reform): "Bill C-48 makes changes to Canada’s Criminal Code ... provisions concerning judicial interim release, also known as bail. It adds to existing “reverse onus” provisions that shift the prosecutor’s burden of demonstrating why an accused person should be held in detention pending trial onto the accused, who instead must demonstrate to the judge or justice of the peace that there is no reason warranting their detention. These amendments are in response to concerns raised by various stakeholders about crimes being committed by repeat violent offenders, in particular those who use firearms. These reverse onus amendments apply to accused persons who were previously convicted of a violent offence and are subsequently charged with violent offences or offences involving firearms, knives, bear spray or other weapons. The bill also proposes changes to address the risks posed by intimate partner violence, particularly when committed by repeat offenders. It adds considerations a justice must take into account during bail decisions regarding community safety and security concerns."
• Legislative Summary of Bill S-15: An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act: "The bill creates various Criminal Code offences in relation to elephants and great apes, including: possessing, breeding or impregnating elephants or great apes in captivity; possessing an elephant or great ape that is kept in captivity and failing to take reasonable measures to prevent natural breeding; and participating in any activities that involve elephants or great apes kept in captivity being used for entertainment purposes."

Law Library of Congress Report on Selected Issues in Biotechnology Regulation

The Law Library of Congress in Washington, D.C. recently published a comparative report on Selected Issues in Biotechnology Regulation that looks at the main statutes and policies in multiple countries relating to the development of biotechnology products, in particular genetically-modified organisms:

"The jurisdictions reviewed are Australia, Belgium, Brazil, Canada, China, England, the European Union (EU), Germany, India, Japan, Mexico, New Zealand, Singapore, South Africa, South Korea, and Taiwan, all of which have a variety of official sources (including laws, regulations, and policies) governing biotechnology matters."

"A number of these sources provide definitions of relevant terms in this field, including “genetic engineering” and “genetically modified organisms,” which are included in the study. Due to the technical complexity of these topics, a basic understanding of these definitions is a helpful introduction to each surveyed jurisdiction’s framework on biotechnologies. Multilateral and bilateral agreements addressing international cooperation on the development of these technologies are also covered in this survey."

The Law Library of Congress is the world’s largest law library, with a collection of over 2 and a half million volumes from all ages of history and virtually every jurisdiction in the world.

Over the years, it has published dozens of comparative law reports which are a treasure trove for legal research on a huge variety of issues.

English Law Commission Consultation on Digital Assets in Private International Law

The Law Commission in England has launched a short consultation exercise on proposed legislation on digital assets and electronic trade documents.

A summary of the Commission's work on the issue can be found on the project's page:

"The UK Government asked the Law Commission to make recommendations for reform to ensure that the law is capable of accommodating both crypto-tokens and other digital assets in a way which allows the possibilities of this type of technology to flourish."

"In our final report, we conclude that the common law system in England and Wales is well placed to provide a coherent and globally relevant regime for existing and new types of digital asset."

"We conclude that the flexibility of common law allows for the recognition of a distinct category of personal property that can better recognise, accommodate and protect the unique features of certain digital assets (including crypto-tokens and cryptoassets). We recommend legislation to confirm the existence of this category and remove any uncertainty. On 22 February 2024 we published a short consultation on draft clauses which would implement this recommendation."

"To ensure that courts can respond sensitively to the complexity of emerging technology and apply the law to new fact patterns involving that technology, we recommend that Government create a panel of industry experts who can provide guidance on technical and legal issues relating to digital assets."

"We also make recommendations to provide market participants with legal tools that do not yet exist in England and Wales, such as new ways to take security over crypto-tokens and tokenised securities."

Recent Library of Parliament Legislative Summaries

The Library of Parliament in Ottawa has recently published a number of legislative summaries of important federal bills.

Among them are:

• Legislative Summary of Bill C-42: An Act to amend the Canada Business Corporations Act: "The bill strengthens the government’s commitment to the implementation of a publicly accessible beneficial ownership registry of corporations governed under the Canada Business Corporations Act (CBCA)2 in furtherance of its efforts to bolster Canada’s anti–money laundering and anti–terrorist financing regime (...)"
• Legislative Summary of Bill S-13: An Act to amend the Interpretation Act: "The bill amends the federal Interpretation Act 2 to include a non-derogation clause on upholding Aboriginal and treaty  rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982. A non-derogation clause is a statement in a law that indicates the law should be interpreted to uphold, and not diminish, other pre-existing rights. Bill S-13 aims to ensure that all federal legislation is interpreted to uphold constitutionally protected Aboriginal and treaty rights."
  "

Recent Library of Parliament Legislative Summaries

This past summer, the Library of Parliament in Ottawa published a number of legislative summaries of important federal bills.

Among them are:

• Legislative Summary of Bill C-9: An Act to amend the Judges Act: "By replacing the existing complaints process regarding alleged misconduct with a new system, Bill C‑9 changes how complaints against federally appointed judges are handled. The existing process was established in 1971 under the Judges Act, which defines the criteria for removing a judge from office and prescribes certain other requirements; procedural elements of the complaints process are largely set out in Canadian Judicial Council (CJC) policy documents and by‑laws."
• Legislative Summary of Bill C-228: An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985: "The bill amends the Bankruptcy and Insolvency Act (BIA) and the Companies’ Creditors Arrangement Act (CCAA) to ensure that claims in relation to shortfalls in defined-benefit pension plans are paid in priority in the event that an employer becomes insolvent. It also amends the Pension Benefits Standards Act, 1985 (PBSA) to provide for the tabling of an annual report regarding the solvency of pension plans regulated under that statute."
• Legislative Summary of Bill S-4: An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures): "Bill S‑4 aims to increase the efficiency, effectiveness and accessibility of the criminal justice system in response to the challenges posed by the COVID‑19 pandemic. According to the federal government, it will give courts increased flexibility in how they hold criminal proceedings and issue orders. In particular, the bill:
  
  - allows law enforcement officers to obtain warrants by telecommunication (i.e., 'telewarrants') in a wider range of circumstances;
  - clarifies and broadens the circumstances under which accused individuals, offenders and others involved in criminal proceedings may appear by audioconference or videoconference;
  - permits prospective jurors to appear by videoconference during the jury selection process and provides for jury selection via electronic or other automated means;
  - allows courts to compel the attendance of an accused or offender for fingerprinting or other identification measures in certain additional circumstances;
  - removes restrictions on the development of case management rules for accused individuals not represented by counsel (...)"

Updated GlobaLex Research Guides

The GlobaLex collection at the New York University Law School has updated a number of its research guides on international and comparative law:

• Comparative Civil Procedure: Finding Primary and Secondary Sources: "The comparison of legal systems has for a long time been an essential branch of legal research and jurisprudence. It has become even more important and relevant in our era of globalization, an era in which there is no field of law that can base its knowledge exclusively on national ideas and rules of procedure. Peter Gottwald sees the comparison of legal systems leading 'not only to a better knowledge of foreign law but also corresponding to the internationalization of law and jurisprudence, and the globalization of politics, of trade, commerce and private lifestyle.' (...) The first part of this article lists: general works of comparative civil procedure; basic books about the civil and common-law systems; and encyclopedias and treatises covering several jurisdictions. The remainder of the article is arranged by country. Depending upon the country, the sources listed may be in English or in the vernacular (or both in some cases). Under 'Primary Sources' are listed codes of civil procedure and civil procedure statutes and, for civil law jurisdictions, basic treatises, and commentaries. Under 'Secondary Sources' are listed monographs, treatises, and commentaries (for common law jurisdictions), which may also contain the text of civil procedure code sections and statutes. The section on 'Secondary Sources' also contains collected jurisprudence, as well as a few journals."
• The Council of Europe: "The Council of Europe is the continent’s leading human rights organization. It brings together 46 European states, including all the members of the European Union, representing 700 million citizens. Its mission is to promote democracy and protect human rights and the rule of law in Europe."
• Researching Global Health Law: "This 2023 update will again include a wide array of resources, ranging from primary international law instruments to databases that contain domestic health-related legislation. Also included are suggestions for researching the relationships between global health law and international human rights, trade, and intellectual property. In terms of format, the guide emphasizes electronic sources, but some print monographs are also mentioned. All of the listed resources are available in English, although several are multilingual. The aggregate purpose of the guide is to provide a comprehensive roadmap for researching the highly complex and dynamic field of global health law, which now includes the COVID-19 pandemic within its topical scope."
• Researching Nanotechnology and Selected Legal and Regulatory Issues: "The word ‘nano’ is derived from the Greek word ‘nanos’, meaning ‘dwarf’ or ‘very small man’. In the study of nanoscience and technology, this word is used to indicate a scale of measurement. Nanotechnology, according to the European Commission, is a branch of science and engineering that is devoted to designing, producing, and using structures, devices, and systems by manipulating atoms and molecules at the nanoscale, i.e., having one or more dimensions of the order of 100 nanometres (100 millionths of a millimeter) or less. In layman’s term, it is the study of nanoscale chemicals (...) At the beginning of this century, most of the developed countries started initiatives to exploit nanotechnologies treating these as ‘the wave of the future’. The policymakers and stakeholders involved in dealing with nanoparticles and nanomaterials have frequently endorsed nanotechnologies as important catalysts that promise to play a crucial role in harnessing the potentials of the so-called fourth industrial revolution. The legal and regulatory discussion on nanotechnology mostly rotates around the study of chemical substances, the environment, occupational health and safety, product liability, and consumer protection etc."

Updated Research Guides from GlobaLex

GlobaLex, a very good electronic collection created by the Hauser Global Law School Program at the New York University School of Law, has  updated a number of research guides recently:

• Research Guide to Belgian Law (one of the civil law jurisdictions from which we collect): "Belgium is a federal state with a civil law system and is a member of the European Union. These three qualities basically account for the legal system the country has adopted. The Belgian state was formed as a constitutional monarchy in 1830, as a compromise between French and Dutch claims, appeased by the British government. At that time, it was already largely influenced by the French legal system, and this was laid down in the constitution. The legislative branch was formed by a parliament with two chambers (Chamber and Senate). The King was (and is) the head of state and of the executive branch, but political power is almost entirely in the hands of the government and its prime minister. The judicial branch consists of regular courts in different appeal levels (private and criminal law matters), later an administrative court was added (1948, Council of State). A constitutional court has only been set up in recent time (1980, Court of Arbitration now Constitutional Court). Although the Belgian state has undergone severe constitutional changes since this date, the court system has still not been deeply touched by these yet. In 2014, the late reorganization of the state has restricted the transfer of competences regarding justice to judicial proceedings policy, justice’s houses, first-line legal aid and young people welfare. It has also been reaffirmed that the judicial organization, procedure, execution of court rulings and enforcement of sentences are of federal competence."
• International Commercial Arbitration: "International commercial arbitration is a means of resolving disputes arising out of transnational commercial transactions. It is an alternative to litigation and is controlled primarily by the terms previously agreed upon by the contracting parties, rather than by national legislation or procedural rules. Most contracts contain a dispute resolution clause specifying that any disputes arising under the contract will be handled through arbitration rather than litigation. The parties can specify the forum, procedural rules, and governing law at the time of the contract. Arbitration can be either “institutional” or “ad hoc”. The terms of the contract will dictate the type of arbitration. If the parties have agreed to have an arbitral institution administer the dispute, it is an institutional arbitration. If the parties have set up their own rules for arbitration, it is an ad hoc arbitration. Ad hoc arbitrations are conducted independently by the parties, who are responsible for deciding on the forum, the number of arbitrators, the procedure that will be followed, and all other aspects of administering the arbitration. The types of law that are applied in arbitration include international treaties and national laws, both procedural and substantive, as well as the procedural rules of the relevant arbitral institution. Arbitral awards entered in prior disputes carry persuasive authority but are not binding. Scholarly commentary, or “doctrine,” may also be applied."

English Law Commission Proposals to Ensure UK Remains Centre of International Arbitration

The Law Commission of England and Wales recently released a consultation paper with provisional reform proposals to update the Arbitration Act 1996 and to ensure London remains a world-leading seat in arbitration.

From the description of the project:

"Arbitration is a form of dispute resolution. If two or more parties have a dispute which they cannot resolve themselves, instead of going to court, they might appoint a third person as an arbitrator to resolve the dispute for them by issuing an award. They might appoint a panel of arbitrators to act as an arbitral tribunal."

"Arbitration happens in a wide range of settings, both domestic and international, from family law and rent reviews, through commodity trades and shipping, to international commercial contracts and investor claims against states."

"Arbitration is a major area of activity. For example, the Chartered Institute of Arbitrators, headquartered in London, has more than 17,000 members across 149 countries. Industry estimates suggest that international arbitration has grown by about 26% between 2016 and 2020, with London the world’s most popular seat." 

"The Arbitration Act 1996 (“the Act”) provides a framework for arbitration in England and Wales and Northern Ireland. It has been 25 years since the Act came into force. This anniversary presents a good opportunity to revisit the Act, to ensure that it remains state of the art, so that it provides an excellent basis for domestic arbitration, and continues to support London’s world-leading role in international arbitration."

The consultation paper examines areas such as confidentiality, independence and immunity of arbitrators, jurisdictional challenges against arbitral awards, appeals and more.

English Law Commission Consultation Paper on Digital Assets

The Law Commission of England and Wales has released a consultation paper that looks at proposed changes relating to digital assets such as cryptocurrencies.

From the project description page:

"Digital assets are increasingly important in modern society. They are used for an expanding variety of purposes — including as valuable things in themselves, as a means of payment, or to represent or be linked to other things or rights — and in growing volumes. Electronic signatures, cryptography, smart contracts, distributed ledgers and associated technology broaden the ways in which digital assets can be created, accessed, used and transferred. Such technological development is set only to continue."

"Some digital assets (including crypto-tokens and cryptoassets) are treated as objects of property by market participants. Property and property rights are vital to modern social, economic and legal systems and should be recognised and protected as such. While the law of England and Wales is flexible enough to accommodate digital assets, our consultation paper argues that certain aspects of the law now need reform. This will ensure that digital assets benefit from consistent legal recognition and protection, in a way that acknowledges the nuanced features of those digital assets."

"Reforming the law to provide legal certainty would lay a strong foundation for the development and adoption of digital assets. It would also incentivise the use of English and Welsh law and the jurisdiction of England and Wales in transactions concerning digital assets."

English Law Commission Options Paper on Corporate Criminal Liability

The Law Commission of England last week published its proposed options for the UK government on how it can ensure that corporations are held accountable for committing serious crimes such as fraud.

The paper is part of a larger review of corporate criminal liability that the Law Commission has been asked to do by the government. 

The paper offers ten reform options:

1. Retain the current general rule of criminal liability applied to corporations – the “identification doctrine” – as it stands.
2. Allow conduct to be attributed to a corporation if a member of its senior management engaged in, consented to, or connived in the offence. This could be drafted so that chief executive officers and chief financial officers are always considered part of senior management.
3. Introduce an offence of failure to prevent fraud by an employee or agent. This would apply when the company has not put appropriate measures in place to prevent their own employees or agents committing a fraud offence for the benefit of the company.
4. Introduce an offence of failure to prevent human rights abuses.
5. Introduce an offence of failure to prevent ill-treatment or neglect.
6. Introduce an offence of failure to prevent computer misuse.
7. Make publicity orders available (requiring the corporate offender to publish details of its conviction) in all cases where a corporation is convicted of an offence.
8. Introduce a regime of administratively imposed monetary penalties.
9. Introduce civil actions in the High Court, with a power to impose monetary penalties.
10. Introduce a reporting requirement requiring large corporations to report on anti-fraud procedures.

The paper compares the situation in the UK with that of Australia and Canada.

It is now for the Government to review and consider the options paper.

English Law Commission Report on Electronic Trade Documents

The Law Commission of England and Wales has published a report on Electronic Trade Documents which it presented to the British House of Commons this week:

"The process of moving goods across borders involves a range of actors including transportation, insurance, finance and logistics service providers. We have estimated that global container shipping generates billions of paper documents a year. Across so many documents, the potential positive impacts of using electronic trade documents – including financial and efficiency gains, and environmental benefits – are vast (...)"

"Despite the size and sophistication of this market, many of its processes, and the laws underlying them, are based on practices developed by merchants hundreds of years ago. In particular, under the current law of England and Wales, being the “holder” or having “possession” of a trade document has special significance. However, the law does not allow an electronic document to be possessed. As a result, nearly all documents used in international trade are still in paper form."

"Over the past decade, the development of technologies such as distributed ledger technology has made trade based on electronic documents increasingly feasible. Without reform, the law will continue to lag behind, hindering the adoption of electronic trade documents and the significant associated benefits from being achieved (...)"

"The recommendations in our report, and the Bill that would implement them, are intended to enable trade documents in electronic form to be used in the same way as their paper counterparts. To achieve this, the Bill sets out certain “gateway criteria” that a document in electronic form must satisfy in order to qualify as an “electronic trade document”. We recommend that electronic trade documents (that is, documents in electronic form which satisfy the gateway criteria) should be capable of being possessed, and that this principle should be set out explicitly in statute."

 

Alberta Law Reform Institute Report on Personal Property Security Act

The Alberta Law Reform Institute (ALRI) has published its final report on Personal Property Security Law:

"In this Report, ALRI recommends that Alberta amend the Personal Property Security Act [PPSA] through the implementation of recommendations proposed by the Canadian Conference on Personal Property Security Law [CCPPSL] in its 2017 Report (...)"

"Although the PPSA produced a significant improvement in the law, experience with the legislation over the course of the last three decades has revealed several instances where improvements or clarifications are desirable. In some cases, the need for reform is driven by technological advances. When the PPSA was first enacted, electronic banking and electronic commerce were in their infancy. The CCPPSL recommendations facilitate the move to paperless transactions. In some cases, judicial decisions have revealed ambiguities in the legislation that have produced uncertainty. The recommendations would correct these deficiencies. In other cases, the statute simply did not anticipate the kinds of controversies that would be litigated in the future, and therefore did not provide rules for the resolution of these types of disputes."

"The major areas of reform are summarized below:

• The choice of law rules are revised, and the method for determining the location of the debtor is changed so as to align with the new approach adopted in British Columbia, Saskatchewan and Ontario. This produces greater certainty in the law and avoids the deleterious effects of forum shopping that will inevitably arise if provinces and territories employ different choice of law rules.
• The rules that govern purchase-money security interests are clarified and expanded to provide greater guidance on this crucial form of financing. The changes enhance the ability of secured parties to claim purchase-money security interests in inventory, and preserve purchase-money security interest status in a refinancing.
• The rules governing the transfer of collateral to buyers and others are rationalized and improved.
• A number of uncertainties in the rules that determine priorities between secured parties and other competing claimants are clarified so as to produce greater certainty and predictability.
• The registration provisions are improved to better achieve the underlying goals of the registry system, namely the publication of information in a manner that will allow effective risk-assessment by affected parties.
• The concept of electronic chattel paper is introduced to facilitate paperless transactions where this form of property is sold or used as collateral.
• Secured financing is facilitated through amendments that clarify that valuable assets such as licences may be used as collateral, that eliminate red tape requirements that unnecessarily increase the administrative costs of secured finance, and that improve the ability of secured parties to take steps to protect their interest."

The Alberta Law Reform Institute was established on November 15, 1967 by the Government of Alberta, the University of Alberta and the Law Society of Alberta for the purposes, among others, of conducting legal research and recommending reforms in the law. Funding for ALRI’s operations is provided by the Government of Alberta, the University of Alberta and the Alberta Law Foundation.

English Law Commission Consultation Paper on Electronic Trade Documents

The Law Commission of England and Wales has issued a Consultation Paper on Electronic Trade Documents:

"The process of moving goods across borders in order to get them from the seller to the buyer typically involves a large multiplicity of actors including transportation, insurance, trade and/or supply chain finance and logistics service providers. One transaction typically involves 20 entities and between 10 and 20 paper documents, totalling over 100 pages."

"Despite the size and sophistication of this market, many of its processes, and the laws underlying them, are based on practices developed by merchants hundreds of years ago. In particular, international trade still relies to a large extent on a category of documents called 'documentary intangibles'. Documentary intangibles are unique because transfer of the document can be sufficient to transfer the right to claim performance of the obligation which the document embodies, whether that is an obligation to pay money or an obligation to deliver goods. For example, simply handing over a bill of lading can be sufficient to give the new holder a right to the goods described in the bill."

"The legal rules governing these documents are premised on the idea that they are physical documents which can be physically held or 'possessed'. The current law in England and Wales does not recognise the possibility of possessing electronic documents; possession is associated only with tangible assets. Industries using these documents are therefore prevented by law from moving to a fully paperless process. To give a sense of the enormous amount of paperwork global trade generates, consider that the world’s largest containerships can carry 24,000 twentyfoot containers at any one time on any one voyage. For each one of those cargoes a paper transport document is issued, and has to be processed manually to go from the shipper of the goods to the ultimate buyer at destination, sometimes through numerous intermediaries. This needs to be done using paper because the buyer is required to present the paper document when claiming the goods at the port of discharge. It has been estimated that the international trade industry generates four billion paper documents per year."

(...)

"In this consultation paper, we set out provisional proposals for law reform to allow for electronic trade documents to have the same legal effects as their paper equivalents, provided that they meet certain requirements to enable their possession in a digital context."

The consultation closes on 30 July 2021. 

Alberta Law Reform Institute Report for Discussion on Personal Property Security Act

Last month, the Alberta Law Reform Institute (ALRI) published a Report for Discussion on the Personal Property Security Act.

The report offers a number of suggestions for public discussion with the goal of updating the province's Personal Property Security Act in keeping with recommendations made by the Canadian Conference on Personal Property Security Law (CCPPSL):

"Every Canadian province and territory, except for Quebec, has enacted a Personal Property Security Act [PPSA]. Although there are minor variations across jurisdictions, these statutes are substantially uniform. Alberta’s current Personal Property Security Act came into force on October 1, 1990. The enactment of the PPSA transformed secured transactions law in Alberta by sweeping away many of the restrictions and limitations that impeded the use of secured credit. It replaced the piecemeal approach that formerly governed with a comprehensive and rational system that fostered certainty, transparency and flexibility (...)"

"Although the PPSA produced a significant improvement in the law, experience with the legislation over the course of the last three decades has revealed several instances where improvements or clarifications are desirable. In some cases, the need for reform is driven by technological advances. When the PPSA was first enacted, electronic banking and electronic commerce were in their infancy (...)"

"The CCPPSL is an organization of provincial and territorial government officials and academics. It has played a leading role in the design of the PPSA model that is used in Alberta. The CCPPSL Report of June 2017 made proposals for changes to the PPSA. These recommendations were fully implemented in Saskatchewan, which proclaimed the amendments into force on June 22, 2020. The proposals have been partially implemented in British Columbia and Ontario. We expect that other provinces will be similarly guided by the CCPPSL Report, and we propose that Alberta update its PPSA through the implementation of the CCPPSL recommendations."

The ALRI was established in 1967 by the Government of Alberta, the University of Alberta and the Law Society of Alberta for the purposes of conducting legal research and recommending reforms in the law. Funding for ALRI’s operations is provided by the Government of Alberta, the University of Alberta and the Alberta Law Foundation.

Recent Developments in Law Reform from Around the World

 I had not heard of the Singapore Academy of Law (SAL) but I recently discovered a publication of theirs on Recent Developments in Law Reform.

There is news about law reform work being done by the SAL in areas like the Impact of Robotics & AI on the Law as well as a number of articles about the work of law reform commissions from other countries on:

• defamation (England, Scotland, Ontario, Australia)
• corporate criminal responsability (Australia)
• leasehold property owenership (UK)
• the right of consumers placing online orders when the retailer goes bankrupt (UK)

Discussion Paper on Corporate Criminal Responsibility in Australia

The Australian Law Reform Commission (ALRC) has released a discussion paper on Australia’s corporate criminal responsibility:

"The ALRC seeks stakeholder submissions on 23 proposals for reform to the Commonwealth’s corporate criminal law regime, and asks 11 questions on particular areas of reform. The Discussion Paper addresses a number of aspects of corporate criminal liability, including:

• the principled division between criminal offences and civil penalty provisions;
• the method for attributing criminal liability to corporations;
• individual liability for corporate offences;
• deferred prosecution agreements;
• penalties and the sentencing process;
• illegal phoenix activity (deliberate liquidation with the intent to avoid creditors and continue operations through a new entity); and
• the implications of the transnational nature of business and extraterritorial offences."

The ALRC's final report to the government will be published in April 2020.

New International Law Research Guide on Third-Party Funding in Investor-State Dispute Settlement

GlobaLex, a very good electronic collection created by the Hauser Global Law School Program at the New York University School of Law, has published a new research guide on Third-Party Funding in Investor-State Dispute Settlement:

"Third-party litigation funding is a rapidly expanding industry composed of speculative investors who finance legal claims in a number of disputes, in exchange for influence over case management and a contingency in the recovery. As third-party funding now becomes increasingly widespread in investment arbitration, it becomes critically important for policymakers, academics, IGOs/NGOs, arbitral institutions and practitioners alike to understand how third-party funding works in the investment arbitration setting and its implications, as well as ongoing reform efforts addressing the role of this funding mechanism in investor-state dispute settlement (...)"

"Investment arbitration differs from private commercial arbitration in a number of key respects relevant to understanding the implications of third-party funding. First, investment arbitration in the ISDS [investor-state dispute settlement] system involves States as respondents, rather than commercial parties. Therefore, claims and costs are paid from State budgets (i.e. taxpayers) rather than a commercial defendant’s resources or shareholders. Second, ISDS proceeds under a set of substantive rules (BITs) which create rights for investors but primarily only duties for States, meaning States can generally not raise counterclaims and cannot recover in turn (except costs in certain cases) from investor claimants. Third, ISDS takes place under procedural rules (ICSID or UNCITRAL arbitration rules are the primary ones) that allow claimants to select one of the three arbitrators, and which do not allow for appeal."

"Third-party funding in this setting has drawn particular attention because it has a more profound impact on investment policy and a host of other issues, than it necessarily raises in other settings. Third-party funding has become one element in the heated debates about “the purpose, function, and legitimacy of the laws governing foreign investment and investment arbitration.” This is so because the increasing costs, increasingly large monetary awards, and growing number of cases have become matters of recent public concern regarding the ISDS system. Third-party funding raises issues related to conflicts of interest, access to justice, disclosure and transparency, to ongoing investigation of the risk, costs and balance of ISDS procedures."

"This research guide aims to provide the tools necessary for your understanding and researching of third-party funding in the context of investor-state arbitration. A selected bibliography of scholarly writings, publications from IGOs/NGOs and institutional repositories that may inform you about the history, background and development of third-party funding in ISDS and the current debate is included in Section 8."

Alberta Law Reform Institute Report on International Commercial Arbitration

The Alberta Law Reform Institute recently released its report on Uniform International Commercial Arbitration in which it recommends ways to bring Alberta’s international commercial arbitration law up-to-date with current international standards:

"Alberta’s current International Commercial Arbitration Act is based on uniform legislation developed in 1986. The Alberta Act has fallen behind the advances that are being made internationally and in other provinces. By updating its legislation, Alberta will catch up to those jurisdictions that have already implemented the changes. Uniformity of international commercial arbitration law is important to ensure consistency for foreign users who may be unfamiliar with Canada’s federal system of government. Uniformity will also ensure that Canada can remain competitive as a host jurisdiction for these types of arbitrations."

Manitoba Law Reform Commission Report on Building Liens Modernization

The Manitoba Law Reform Commission today released its report entitled The Builders’ Liens Act of Manitoba: A Modernized Approach.

The purpose of The Builders’ Liens Act is to ensure that people involved in construction projects are paid for their contributions in accordance with their contractual entitlements. It provides legal remedies for those who provide work, perform services or supply materials upon a construction project.

The Commission's report proposes a series of remedies to the widespread issue of delays in payment.

Among other things, it proposes that Manitoba adopt the approach recently introduced by Ontario to incorporate statutory timelines for payments and prescribed penalties for payment delay (i.e. “prompt payment reforms”) within the Act.

The Commission also recommends the creation of a private adjudication system  that would have tight timelines for determination of payment disputes and minimal disruption while the construction project is ongoing.

The Commission also recommends enhancements to the statutory trust remedy in the Act to better achieve the purpose of keeping project funds within the construction contract pyramid for each specific project, including changing the statutory trust from one whereby owners, contractors, and subcontractors hold all funds received as payments on account of a contract price for listed beneficiaries to a privity model whereby trustees hold project funds in trust for only those it has contracted with directly. This aligns Manitoba’s statutory trust provisions with those of other jurisdictions including Ontario, Nova Scotia, Saskatchewan, and British Columbia.