The Power of Perspectives

The Canadian Bar Association
Trade

Trade and national security risks

By Doug Beazley April 23, 2018 23 April 2018

Trade and national security risks

 

It’s a measure of just how unsettled things have gotten in the realm of international trade law commentary: the experts have started quoting Frank Zappa.

A quip attributed to the late gonzo rock star — “You can't be a real country unless you have a beer and an airline” — has been making the rounds in emails exchanged by trade lawyers. It’s a gag, of course, but it also reads as a better-phrased version of the justification U.S. President Donald Trump offered for his decision to cite a threat to national security to justify massive new tariffs on imports of steel and aluminium.

“Our steel industry is in bad shape,” Trump tweeted on March 2, before mashing the all-caps key. “IF YOU DON’T HAVE STEEL, YOU DON’T HAVE A COUNTRY!”

Trump has been president of the United States for over a year now, and in that time he has trampled any number of the political norms that serve as the unwritten laws of western democracy — in how he approaches party politics, gender and race relations, diplomacy and the rule of law, to list just the obvious examples.

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Legal marketplace

Another English firm goes public

By Yves Faguy April 23, 2018 23 April 2018

Another English firm goes public

Rosenblatt Solicitors has just announced its intentions to go public. It would be the fourth English law firm to do so since the liberalization of the market for legal services in England and Wales five years ago. The other three are Gately, Keystone and Gordon Dadds.  

According to Rosenblatt chief executive Nicola Foulston, the principal reason is to grow its dispute resolution practice in London and  “to take advantage of the disruption in the UK legal marketplace.”

Matt Byrne at The Lawyer notes that the reasons for going public can vary from one firm to the next, whether it is to attract a different kind of talent or fund growth through acquisitions. And though firms have been shy about making jumping in the fray, we can expect to see more law firm IPOs in the coming months:

Inevitably, there will be speculation about which firm will next go public. Personal injury giant Irwin Mitchell has long been seen as a candidate, while brand-savvy Mishcon de Reya is said in some circles to have at least considered an IPO last year. Highly profitable litigation boutique Stewarts could also make sense.

What is notable with the trio of deals so far in the UK is that the firms have different reasons for going public, highlighting the fact that each is a different type of firm. And while Gateley, which floated in 2015, is at the more traditional end of the market (IPO notwithstanding), the latter two deals underline the extent to which the market is reshaping. Indeed, it is the shape of the new breed of firms that might offer clues as to where the next IPO will come from.

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Law and technology

Are we putting too much trust in blockchain?

By Agnese Smith April 23, 2018 23 April 2018

Are we putting too much trust in blockchain?

 

During the go-go days of the 1990s, people who should have known better convinced themselves that economic booms and busts were a thing of the past. Such was their faith in traditional institutions like central banks that only small policy tweaks sufficed to magic away all perceived problems. 

“Trust the Fed — trust the market,” was the operating mantra, echoing globalist ideals. 

Fast forward post 2008 financial meltdown, ginormous hacks and fake news, and an entirely new slogan has taken hold, one that reflects a more libertarian mood: “Trust nobody — trust code.”  This includes bankers, lawyers, governments — even formerly beloved tech companies. 

Nothing captures the flavour of our unsettled and untrusting times like blockchain technology, a way to create a tamper-proof ledger that everyone can agree on without anyone being in charge. It was specifically created a decade ago to support the cryptocurrency Bitcoin, but enthusiasts see much wider applications, like helping people manage their online identities and assets.

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National Volunteer Week

Outstanding CBA Volunteer: Level Chan

By CBA/ABC National April 20, 2018 20 April 2018

Outstanding CBA Volunteer: Level Chan

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Level Chan: The more you put into the CBA, the more you get out of it. My involvement began as taking the opportunity to develop a better understanding of the substantive law applicable to my practice, pensions and employee benefits, and has grown to encompass learning from the many diverse perspectives among CBA members.  Whether from different provinces, client perspectives, levels of experience, or personal identities, the CBA has allowed me to learn from lawyers with a variety of backgrounds and helped me become a better lawyer.  As my roles have grown, I have been motivated by the influence that the CBA has with legislatures and regulators.  Being involved in the CBA has given me the opportunity to have an impact in the law, while still learning a lot along the way.

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National Volunteer Week

Outstanding CBA volunteer: Sabrina Bandali

By CBA/ABC National April 20, 2018 20 April 2018

Outstanding CBA volunteer: Sabrina Bandali

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Sabrina Bandali: I’ve mainly been involved in the CBA through the Women Lawyers Forum. It’s given me a special opportunity to connect with and learn from other women lawyers across the country. It’s easy to lose sight of the many different aspects of diversity in our profession – not just gender and cultural background, but life experiences, geography, and practice setting influence how each of us experience the unique challenges that women face in the profession. The Women Lawyers Forum is active in every province and territory, and having the perspective of women lawyers of all ages who practice in different communities and with different backgrounds sharpens our lens to understand what women lawyers across the country are grappling with, professionally and personally.

 

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Trade

Ratifying new NAFTA may not be be so easy

By Yves Faguy April 20, 2018 20 April 2018

Ratifying new NAFTA may not be be so easy

Progress is being made, reportedly, on the renegotiation of NAFTA, as trade representatives appear to be closing in on a deal on new auto rules of origin.

But here's something to worry about. Anna Palmer at Politico reports on growing doubts in Washington about Congress’ ability to ratify a new NAFTA deal in an midterm election year:

The Trump administration has done absolutely nothing to prepare the Hill for a bruising trade vote in the middle of an election year, according to key aides involved. GOP leadership is well aware of the void. When the Trans-Pacific Partnership cleared the Capitol, it benefited from a multi-year, multi-million dollar lobbying campaign.

One possible tactic apparently under consideration is to apply pressure by withdrawing from the current  agreement before a new deal is finalized:

U.S. Trade Representative Robert Lighthizer is said to have advocated for such an approach, according to current and former administration officials.

The strategy, which has been under consideration for months, figures that Congress may not act on the new agreement, preferring the status quo instead.

[…]

“As someone who counts votes that would not be a totally shocking scenario,” said one source who has advised Lighthizer on NAFTA. “If you actually want to get the vote done and you want to pass the damn agreement then you need to create the scenario of either nothing or something different.”

What could possibly go wrong?

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Interprovincial trade

Supreme Court upholds provincial liquor law

By Yves Faguy April 19, 2018 19 April 2018

Supreme Court upholds provincial liquor law

Canada’s Constitution does not guarantee interprovincial free trade, at least not how the term is broadly understood. That’s the key takeaway from the Supreme Court of Canada’s unanimous decision today in R. v. Comeau – commonly referred to as the free-the-beer case.

The case involved a constitutional challenge brought by Gerard Comeau, who had been arrested and fined for bringing beer he purchased in Quebec into New Brunswick, in violation of limits imposed under section 134 of that province’s Liquor Control Act. The trial judge declared the contested provision unconstitutional. In his view that amounted to a trade barrier in violation of section 121 of the Constitution Act, 1867, which stipulates that goods must “be admitted free into each of the other provinces”. The Court of Appeal of New Brunswick dismissed the application for leave to appeal, before the Supreme Court granted leave last year.

How the court decided

“Reading s. 121 to require full economic integration would significantly undermine the shape of Canadian federalism, which is built upon regional diversity within a single nation,” the Court wrote.

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National Volunteer Week

Outstanding CBA volunteer: Jennifer MacPherson

By CBA/ABC National April 19, 2018 19 April 2018

Outstanding CBA volunteer: Jennifer MacPherson

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Jennifer MacPherson: Volunteerism was instilled in me at a very young age while I was watching my parents and other members of my community give back. I am very fortunate to be able to practice law and carve out time to work on programming for non-profits, whether community organizations or professional organizations like the CBA. It has been very rewarding to work as a team with other members of the PEI Bar to identify programming needs for the Women Lawyers’ Forum and Continuing Legal Education Committee, to come up with ways to put some fun into those learning opportunities, and to then see those ideas come to life.  I have always been motivated by the supportive response we receive from members of the bar who come out in such large numbers to attend the events, and especially those members of the bar and the judiciary who donate their time to participate in the programming for the events. Whatever the topic, a big part of the success of any CBA event is providing the opportunity for members to come together to communicate with each other and get to know each other better.   

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National Volunteer Week

Outstanding CBA volunteer: Ken Mandzuik

By CBA/ABC National April 19, 2018 19 April 2018

Outstanding CBA volunteer: Ken Mandzuik

 

CBA National: What is your main motivation for giving back as a CBA volunteer?

Ken Mandzuik:  In volunteering with the CBA at the national and local level, I have been exposed to a lot of the work that CBA does that sometimes, unfairly, flies below the radar. Whether it is interventions before the Supreme Court or responding to parliamentary or legislative committees, there is a lot of hard, detailed work the CBA does that benefits all lawyers in every practice area. This is important work that has rightly earned the CBA’s reputation as “the voice of the legal profession”. It requires the dedication and effort of staff and volunteers; by volunteering, I feel I can play some small part in this benefit to the entire profession.

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Division of powers

Quebec's stake in Kinder Morgan

By Yves Faguy April 18, 2018 18 April 2018

Quebec's stake in Kinder Morgan

 

Politicians in Quebec have mostly condemned Ottawa's stated intention to assert its constitutional authority to ensure completion of the Kinder Morgan pipeline project to carry Alberta oil to the west coast. But reality has a way of catching up, as it has now been disclosed that La Caisse de dépôt et de placement, the province’s pension fund manager, has shares worth $174 million in Kinder Morgan Canada. Bloomberg:

The disclosure is another twist in a saga that has Alberta’s provincial government threatening to impose an oil embargo on neighboring British Columbia, with Prime Minister Justin Trudeau attempting to mediate by launching talks to potentially support the company financially. A halt to energy shipments would have ripple effects across North America’s west coast.

Leery of federal overreach, Quebec’s government had essentially sided with British Columbia -- the birthplace of Greenpeace -- in its fight against Trudeau’s attempt to flex jurisdictional muscle and ensure the pipeline’s construction. Now the pension fund manager’s disclosure reveals Quebeckers have a direct stake in its completion.

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Family law

A code of conduct for child-focused family lawyers

By Yves Faguy April 18, 2018 18 April 2018

A code of conduct for child-focused family lawyers

Nicholas Bala, Patricia Hebert and Rachel Birnbaum, in a recently published Canadian Bar Review article, make the case for developing a proper code of conduct for family lawyers – one that would more clearly articulate their obligations towards the children of their parent clients.  In B.C., John-Paul Boyd and others have also been working to develop such guidelines. The authors take the view that too much emphasis on zealous representation in the current system, while appropriate in criminal matters and even in some civil cases, is usually inappropriate in family disputes. And more often than not it can be detrimental to their interests:

Clients need to be reminded that “divorce is not a zero sum game;” they may both be better off with a fair, nuanced settlement that takes account of their circumstances than a regime imposed by a court. This may be most apparent in regard to economic issues, where there may be tax advantages that can only be achieved through negotiation and a joint filing. Although sometimes less obvious to separated parents, the plans that they jointly make are more likely to meet their circumstances and needs than ones made for them by a judge; separated parents and their children are usually better off if they agree to a substantial sharing of responsibilities and time with the children than if one parent has sole care and responsibility.

The authors also discuss the implications for research in the field:

Little is known about how family lawyers in Canada view their role and professional responsibilities, what type of advice they give their clients about parenting or settlement, and how they actually manage their relationships with their clients and other lawyers. More research needs to  be done on how family lawyers in Canada perceive their roles and actually conduct their practices.

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National Volunteer Week

Outstanding CBA Volunteer: Dan McElroy

By CBA/ABC National April 18, 2018 18 April 2018

Outstanding CBA Volunteer: Dan McElroy

 

CBA National : What is your main motivation for giving back as a CBA volunteer?

Dan McElroy: I enjoy connecting with engaged, active and similarly oriented folks, both locally and nationally. Also, the CBA sections that cover my area of practice tend to host excellent meetings, which inspires me to try to chip in.  

N: We’ve all heard the saying, “Be the change you wish to see.” What is it that you want to achieve by giving your time to the CBA?

DM: Other than the professional development (i.e. non-change) opportunities, I want to make my voice heard. In the few legislative submissions or judicial comments I’ve been involved with, CBA volunteers and staff have always been professional, competent and motivated by something more than self interest. Sometimes, however, I’m able to sneak in a point or perspective that might have been overlooked.

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