The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Climate law

Do not backtrack: Non-regression in environmental law

By Yves Faguy March 22, 2017 22 March 2017


When progressive political leaders remind us that “the arc of the moral universe is long, but it bends towards justice,” the statement includes a caveat – that the arc does not travel in a straight line and that there will be setbacks.

But for climate activists, for whom time is of the essence, setbacks are to be avoided at all cost. “Do not backtrack” has become something of a rallying cry against regressive government action (or inaction).

In legal terms, that has led to calls for the recognition of the principle of non-regression in environmental law and policy, even as a fundamental human right. As University of Ottawa law professor Lynda Collins explains in the video above (around the 3:20 minute mark), non-regression means that part of one’s right to a healthy environment is to “have today’s level of environmental protection preserved.”

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Conflicts of law

From taboo to transparency

By Yves Faguy March 15, 2017 15 March 2017

From taboo to transparency


One of the most significant developments over the last decade in the legal world has been the rapid spread of global litigation finance.

It’s easy to understand its appeal, particularly in strict financial terms. Law firms can share some of their risk with investors, who in turn spread it across a portfolio of cases. As an asset class it isn’t tied to the volatility of financial markets. And for plaintiffs, the practice is a means 
to overcome financial barriers to access 
to justice to go after deep-pocketed and well-insured defendants.

But there are also reasons to watch 
out for some of the disruptive effects it 
can have on our justice system. Critics describe litigation funding as the “Wild West of finance,” largely unregulated, 
or only mildly so by judge-made law and a patchwork of statutes, oftentimes at the subnational level.

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Andrew Arruda’s big bet on AI

By Yves Faguy March 15, 2017 15 March 2017

Andrew Arruda’s big bet on AI


CBA National caught up with Andrew Arruda, one of the co-founders and CEO of ROSS Intelligence, the artificial intelligence-based legal research platform. Yves Faguy asked about the hype surrounding AI, what it means for law firm hiring and what legal organizations should do about it.

CBA National: So, is artificial intelligence being overhyped in the legal marketplace?

Andrew Arruda: As with most new technologies, oftentimes people overestimate where it is today and underestimate where it is going tomorrow. When you interact with an AI system, what typically occurs is that humans want it to be able to do every single thing a human can. And that’s because they grow up watching sci-fi, etc. But that’s just not where we are with AI today. It’s not going to be able to go into court and argue a matter for you, and I don’t know if it ever will. But it’s already adding a ton of value. We see it in legal research, finding better results. You see companies who have brought it into the diligence space – it offers a lot of efficiencies there. Really when you start moving lawyers away from information retrieval so that they’re not doing that, they focus in on high impact work, advising clients, and that speeds 
up their learning curve.

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When the U.S. turns its back on Pacific trade

By Yves Faguy March 14, 2017 14 March 2017



Adam Behsudi reports on the trade fallout from the U.S. dumping the TPP:

Competitors say they have no choice but to take the money U.S. businesses would have earned otherwise.

“We are not trying to take market share from the U.S. It’s more like you are putting money on the table and pushing it towards us,” said Carlo Dade, director of trade and investment policy for the Canada West Foundation, a Calgary-based think tank.

Carlos Dade (featured in the video above) has an interesting primer where he ranks the possibilities for the other TPP prospects, including Canada:

Without the TPP, Canada does better defensively in not having to worry about competitors gaining access to the U.S. market. But it does worse offensively in having the poorest access to Asian markets of any country on the Americas’ Pacific coast. This makes Canadian attempts to diversify away from its dependence on the U.S. market more difficult.

Canada also appears to stand to gain the most from the TPP going ahead without the U.S. as its companies, but not American firms across the border, will have preferential access to the new bloc. This could create a powerful incentive for firm relocation. Mexico will receive a similar but potentially smaller boost as it lacks Canada’s English language operating environment for service firms.

All of this could be viewed offensively, in both senses of the word, by the Trump administration.

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Social media and the Rule of Law

By Yves Faguy February 28, 2017 28 February 2017


We have often discussed in this space the impact of social media and misinformation on public confidence in our justice system, and the need to adapt how we educate the public about the law.  Mark A. Cohen describes how he views the challenge:

Snippets of human interaction are captured on a smart phone or other device and go viral in minutes. This creates an instant, powerful, quickly scalable, and often biased court of public opinion. Social media is unfettered by rules of evidence that weigh credibility, materiality, and prejudicial impact. Social media is wildly popular because it is accessible, fast, unfiltered, and largely devoid of rules—the antithesis of the deliberate-often snail like pace of the judicial process. Social media has become a people’s court, shaping public opinion by providing a snapshot rather than a montage of human interaction and lacking truth filters. Social media also can serve as a global bullhorn for ‘leaks,’ misinformation, and propaganda. There are no easy fixes. Technologists, social scientists, media experts, legislators, and lawyers—among others– must create inter-disciplinary guardrails for social media to insure—among other things—that it does not subvert the judicial process. Social media is a new frontier in establishing appropriate boundaries for free speech as well as ensuring that the court of public opinion does not eclipse the judicial process as the arbiter of the social contract.

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