Canadian Bar Association Podcast Interview with Chief Justice of Canada Richard Wagner

Modern Law: Verdicts and Voices is a monthly podcast produced by the Canadian Bar Association that looks at key legal stories and celebrates the 150th anniversary of the Supreme Court of Canada.

The first episode features an interview with the Chief Justice of Canada Richard Wagner.

It also includes a discussion of the Constitution's notwithstanding clause and an exploration of a Prohibition-era case that continues to have an impact on interprovincial trade, Gold Seal Ltd. v. Alberta.

Norton Rose Fulbright LLP Primer on Tariffs

Lawyers from law firm Norton Rose Fulbright LLP have put together a primer on tariffs.

"On November 25th, President-elect Trump pronounced via social media that he plans to impose a 25% tariff on all products imported into the United States from Canada and Mexico, among other countries, as one of his first executive orders on January 20, 2025. This would have a significant impact on the Canadian economy, as the US accounts for about 75% of all Canadian exports. This announcement came after a number of campaign promises by President-elect Trump that he would impose trade measures and tariffs on goods entering the US if he was elected."

"In response to these potential measures, Norton Rose Fulbright has established a US/Canada cross-border trade law task force made up of trade lawyers in its Canadian and US offices to advise on current and future international trade measures adopted in Canada and the US that will have an important impact on our clients’ supply chains and business models."  

"At the time of publication, President-elect Trump has not announced any details on the potential tariffs being imposed on Canada or any other country.  While we wait for details, the cross-border trade law task force provides the following primer on tariffs and how they work based on how tariffs have been imposed by the US and Canada in the past."

The primer covers questions such as:

• What are tariffs?
• Who pays tariffs and who collects them?  
• How are tariffs calculated?  
• Can I avoid tariffs by declaring that their value is $0?  
• What are the current tariffs paid at the US border for Canadian goods?
• President-elect Trump has threatened to impose a 25% tariff on Canadian imports: this section of the primer has many, many sub-sections
• What are some other measures President-elect Trump might impose on Canadian goods and services?  
• What else should I keep in mind when importing/exporting goods between Canada and the US?

I certainly plan on reading the whole thing. 

Because we all know the topic is going to come up in conversations over the next months with colleagues, family, friends, random acquaintances at the coffee shop and Costco and the dog park and the skating rink, your letter carrier, your doctor, your pharmacist, the bus driver, the car mechanic, etc.

Presentations from Recent Course of the International Association of Law Libraries

The International Association of Law Libraries recently held its 41st Annual Course in Geneva, Switzerland.

Many of the presentations are now inline.

Some highlights:

• The New Roles of the World Trade Organization after the Pandemic Crisis
• The Swiss Legal Order and International Law: Does Direct Democracy Make a Difference?
• The Work of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
• The War in Ukraine: Challenges and Opportunities for International Humanitarian Law
• Intellectual Property and Access to Medicines: Perspective from Médecins Sans Frontières
• Current Issues in Disarmament and Arms Control
• From Words to Deeds, Understanding Armed Non-State Actors Practice and Interpretation of International Humanitarian and Human Rights Norms

Law Library of Congress Comparative Report on Restrictions on Land Ownership by Foreigners

The Law Library of Congress in Washington, D.C. recently published a report on Restrictions on Land Ownership by Foreigners in Selected Jurisdictions.

The report includes individual surveys of 39 jurisdictions. The level of restrictions varies among these jurisdictions. Many countries restrict foreign ownership of land for national security or other reasons:

"(...) some have restrictions that apply to different types of land, including agricultural,  residential, and commercial land. Other types of restriction are based on the location of the land, such as near the border or military establishments. Some jurisdictions restrict  particular categories of foreigners from land ownership. Some require special permission or approval for foreigners before they can acquire land."

 According to the document, 10 of the countries surveyed do not restrict land ownership by foreigners. 

New and 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 published or updated a number of research guides recently:

• Foreign Law – Subject Law Collections on the Web
• Introduction to the Norms and Institutions of the African Union
• The Amparo Context in Latin American Jurisdiction: An Approach to an Empowering Action
• Researching International Food Law

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 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."

 

New and Updated Globalex Research Guides on Foreign and International Law Topics

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

• Judicial Power and High Courts in Latin America: "The Latin American legal systems are within the tradition of civil law with elements of Roman law. They have been articulated with liberal rationalist reforms of the eighteenth and nineteenth centuries in Europe, mediated by the Spanish and Portuguese colonial administration, as well as some reproduction of the North American constitutionalist model. The way these systems were adopted showed some hybridity between public law (based on the separation of American and French powers) and civil law (adapted from the Napoleonic Code). Historically, the concentration of power and procedures typical of colonial characteristics resulted in a greater presence of the centralist aspects of the French system than the control and balance mechanisms of the North American system. From this system, the presidential form of government was taken, as well as the federal model, which was widely adopted in the nineteenth century, and which is still maintained today by the most extensive and populated countries (such as Mexico, Venezuela, Brazil, and Argentina).During the 1970s, ’80s, and ’90s, the judiciary in Latin America began to undergo a profound rethinking to accommodate demands for the effective application of the law and the need to carry out judicial reforms aimed at ensuring greater efficiency and autonomy with respect to executive powers. For this reason, after democratic transitions, the Latin American judicial powers were considered more relevant to understand the political functioning of the region."
• Discovering the United States-Mexico-Canada Trade Agreement (USMCA): "The objective of this article is to serve as a one stop research guide to the United States-Mexico-Canada Agreement (USMCA) and to point out some of the changes instituted by the passage of USMCA and the annulment of NAFTA. The major documents and institutions related to the USMCA Agreement are identified, and a citation to the item is given. The websites cited were chosen for the authority and reputation of the sponsor of the website and the completeness of information provided. The updating policy and the ease of navigation of the websites were also considered for inclusion into this article. Also, free websites were favored over websites that required payment. Websites with little information on the website itself and consisting mainly of links to other websites for the actual desired information were avoided. Most of the citations found in this article are annotated as to content and research value of the website. "
• UPDATE: International Commercial Contracts: "Transactions conducted under international commercial contracts, especially those related to the sale of goods, are considered to form the backbone of international trade. The goal of this research guide is to provide an overview of the major primary sources of law for international commercial contracts, in particular those related to sales, and the related research resources. The focus is global, and the guide does not cover regionally focused instruments or economic integration organizations, such as the European Union. "
• UPDATE: Researching International Marine Environmental Law: "Today, although nations with expansive marine coasts and harbors can be considered fortunate in that they have easy access to global trade, they have also become the recipients of marine pollution caused by oceanic traffic. Naturally, there is a call for an increase in the regulation of growing environmental harm caused by international vessel traffic. For decades, such calls are handled by the International Maritime Organization (IMO, or the Organization). It is a special agency of the United Nations responsible for regulating maritime affairs and oceanic shipping. However, before proceeding to learn more about the responsibilities and functioning of the Organization, due recognition must be given to several non-governmental organizations (NGOs) and inter-governmental organization (IGOs), which operate at regional or local levels and complement or supplement the efforts of the IMO. Many of these organizations, as well as the IMO, have developed impressive websites. An exhaustive treatment of the non-IMO resources would fill up volumes and take considerable time and money, so, for the time being, this article will briefly discuss prominent websites and emphasize sources that reflect and assist the efforts of the IMO to develop international instruments to regulate the marine environment. For the most part, the information at these sites is made available at no charge. However, sources that charge for information access, as well as the sources that provide restricted access, are included when appropriate."

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. 

Library of Parliament Publications About COVID-19

The Library of Parliament blog HillNotes has posted a number of articles about the COVID-19 pandemic.

So far, there have been texts about:

• Health Outcomes During Pandemics in Different Population Groups in Canada
• The Movement of Goods and People In and Out of Canada in a COVID-19 World
• Human Rights in Emergency Situations
• Continuity in Canada’s System of Government During a Crisis
• Income Supports and Labour Protections Available to Federally Regulated Employees During the COVID-19 Pandemic
• Federal Authorities During Public Health Emergencies

Most Recent Issue of LawNow: Family Break-ups

The most recent issue of LawNow is available online. The magazine is published by the Centre for Public Legal Education Alberta.

The issue features a series of articles on "Family Break-ups & the Law".

There is also a special report on globbalization.

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."

Canadian Association of Research Libraries Statement on Copyright Impact of New Free Trade Agreement

The Canadian Association of Research Libraries has released a statement on the on the United States-Mexico-Canada Agreement that was announced on September 30, 2018:

"The Canadian Association of Research Libraries (CARL) recognizes the importance of securing a modernized continental trade agreement for the contemporary digital economy. However, we are concerned that the new agreement extends the term of copyright from 50 years to 70 years after the artist or creator’s death. Because of this provision, no works will enter the public domain for 20 years after USMCA is ratified (...)"

"We believe that a term of copyright of life plus 50 years is adequate to reward rights holders and beneficiaries, while balancing the benefits that a robust public domain has for Canada’s knowledge-based economy. Unfortunately, although the USMCA exports more restrictive elements of U.S. Copyright Laws to Canada, it does not balance this by importing more permissive elements of U.S. law that protect the public interest, such as the more open-ended concept of fair use, or the exemption of government works from copyright."

New International Law 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, recently published updates to a few of its research guides.

DipLawMatic Dialogues, the blog of the FCIL Special Interest Section of the American Association of Law Libraries, has the list.

There are updates for the guides on:

•  the European Human Rights systrem
• MERCOSUR 
• the Vienna Convention on Consular Relations
• U. S. Federal Legal System Web-based Public Accessible Sources
• the Australian Federal Legal System
• and more

Law Firm Bulletin Articles on the Recent Federal Budget

The website of the CAIJ (Centre d'accès à l'information juridique), which is associated with the courthouse libraries in the province of Quebec and the Quebec Bar Association, has a section devoted to private law firm news publications.

 

There have been many articles written about various aspects of the recent federal budget, including tax, trusts, charities, cannabis, trade and  financial institutions. There are articles in English and French:

• March 26 roundup
• March 27 roundup

Updated Research Guide on Investor-State Arbitration

The GlobaLex collection at New York University Law School has updated its research guide on International Arbitration Between Foreign Investors and Host States (Investor-State Arbitration):

"International arbitration between a foreign investor and a host State results from their agreement to solve their disputes in this manner. That agreement may take the form of a contractual provision (including those in a legal stability contract or a subsequent arbitral agreement), but increasingly it is the result of a foreign investor accepting a State’s standing offer to arbitrate disputes in international investment agreements (IIAs); primarily bilateral investment treaties (BITs) and free trade agreements with an investment chapter... "

"According to the United Nations Conference on Trade and Development (UNCTAD), there are over 3,286 IIAs in force. States often make information about IIAs. they are party to available online in order to promote investment and increase the transparency of their investment climate. Foreign affairs and trade ministries, relevant sectoral authorities and trade and investment promotion authorities are natural sources for this information."

Related Library Boy posts include:

• International Investment Agreements and Human Rights (May 20, 2008)
• Investment Treaty Arbitration Website from University of Victoria (June 16, 2010)
• Osgoode Hall Law School Launches International Investment Arbitration Website (October 11, 2011)
• Library of Parliament Article on Ratifying and Implementing Trade and Investment Treaties in Canada (October 31, 2016)

Library of Parliament Article on Ratifying and Implementing Trade and Investment Treaties in Canada

The Library of Parliament blog HillNotes has published a brief overview of the process for Ratifying and Implementing Trade and Investment Treaties in Canada:

"Under Canada’s constitutional system, the conduct of foreign affairs is a royal prerogative power of the federal Crown."

"Consequently, the Executive Branch has the exclusive power to negotiate and conclude international treaties. Parliament has the exclusive power to enact legislation to implement those treaties."

"As Canada continues to enter into such treaties, a number of important questions arise:

• What is the interaction between Canadian and international law in the treaty-making and implementation processes, particularly in relation to trade and investment?
• What measures must the Executive and Legislative branches take so that these treaties can come into force?
• What formal role do the provinces and territories play in the negotiation, ratification and implementation of trade and investment treaties?"

Canadian Bar Association Legal Futures Round-Up: September 19, 2016

CBA National, the magazine of the Canadian Bar Association, publishes a regular feature entitled Legal Futures roundup that tracks "noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace."

The most recent instalment includes items on, among other things, legislative reform of the legal services industry in England and Wales, Norton Rose’s acquisition of Bull Housser in Vancouver, whether lawyers ought to have a monopoly on delivering legal services, access to justice in rural communities, Justice Robin Camp’s disciplinary hearing in front of the Canadian Judicial Council over remarks he made during a sexual assault trial in Alberta, a survey about legal services outsourcing, the Investor-State Dispute Settlement (ISDS) clauses of the Trans Pacific Partnership, and more.

CLA Digest for March 2016 - Library Associations Opposed to Copyright Provisions of TPP

The March 2016 issue of the CLA Digest is available online. It is the news bulletin of the Canadian Library Association.

Among the items in this issue is an explanation of the opposition of a number of library associations to Chapter 18 of the proposed Trans-Pacific Partnership (TPP) Agreement:

"The Canadian Library Association, the Canadian Association of Research Libraries, and the Canadian Urban Libraries Council have jointly prepared a statement in response to the text of the Trans-Pacific Partnership. Our associations speak on behalf of Canadian researchers, students, educators and millions of others who rely on libraries for the development, preservation, and dissemination of Canadian content."

"We believe that Chapter 18 of the Trans-Pacific Partnership in its current form will have significant negative impacts on the way that knowledge is shared and culture is preserved in this country. By accepting the provisions in Chapter 18 Canada has agreed to changes in copyright that favour powerful foreign interests and ultimately constrain the preservation, access and use of Canada's historical knowledge and culture."

Updated Research Guides From GlobaLex

One of the sources I consult for research guides on international law topics is GlobaLex, the electronic collection created by the Hauser Global Law School Program at the New York University School of Law.

It recently updated a number of its excellent research guides:

• A Guide to the U. S. Federal Legal System Web-based Public Accessible Sources: "This guide was originally prepared to be added with similar guides for legal research of many foreign jurisdictions. The intended audience was global in scope and one without access to the printed sources and fee-based databases in American federal law. Since its first publication, I have come to realize that the audience includes many internet users who require reliable legal sources through publicly accessible web-based databases. Many of the materials here are recent and not comprehensive in scope and date coverage. The guide is not intended to supplant traditional sources of legal research. It is my hope that it serves as an introduction to the field and leads the user to a more comprehensive exploration of American federal law."
• Researching the Legal Aspects of Asylum Seekers and Refugees in Australia, Canada, United Kingdom and the European Union: "The aim of this essay is to assist researchers in finding legal information regarding asylum seekers and refugees in Australia, Canada, United Kingdom and the European Union. This comparative approach will allow researchers to see both differences and similarities in the different countries' approach to asylum seekers and refugees. The plight of asylum seekers and refugees in Australia, Canada, United Kingdom and the European Union is the subject of many laws, judgments and commentaries."
• Basic Primary and Secondary Information Online Sources for the North American Free Trade Agreement (NAFTA) and the United States Central American Free Trade Agreement-Dominican Republic (CAFTA-DR) Research