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NSIL activity report
By Charlotte Janssen, Chair, National Section on International Law
The National Section on International Law has been active in the past year on many fronts, including the ongoing work of our subcommittees, work on the ICSID resolution and the development of PD events.
Comments on CBA/Department of Justice Consultation
By Richard Lane, Senior Counsel, Imperial Oil Limited
Co-Chair, International Business and Regulations Committee
The Department of Justice regularly represents Canada in multi-lateral meetings hosted by three organizations: the Hague conference, Unidroit and UNCITRAL.
TMX Group-London Stock Exchange group merger
By Noemi Gal-Or, Department of Political Science, Kwantlen Polytechnic University
The TMX Group and the London Stock Exchange Group recently announced a merger of their two holding companies, in which the combined entity would have a dual stock market listing and be jointly headquartered in London and Toronto.
Activities of the Trade & Investment Committee, December 2010-March 2011
By Noemi Gal-Or, Kwantlen Polytechnic University.
Ian Laird, Crowell & Moring
On December 1, Canada’s Chief Trade Negotiator for Canada-EU Comprehensive Economic and Trade Agreement Negotiations spoke to the Committee regarding the status of these important talks.
The relevance of the turbulent first quarter of 2011 to the international legal profession
By Noemi Gal-Or, Kwantlen Polytechnic University
That international law is relevant also to the practice of domestic law is by now axiomatic. Four months into 2011, momentous events abroad have had a direct impact not only on the Canadian government but its citizens and economy as well.
Merrill & Ring Forestry – Breathing new life into the minimum standard of treatment
By Wendy Wagner, Gowlings LLP
Critics of Chapter 11 of NAFTA argue that the protection afforded to investors is too broad and that the standards for expropriation, non-discrimination and the minimum standard of treatment have been interpreted in “an overly expansive, pro-investor direction.”
The challenge of “consensus” of the United Nations Framework Convention on Climate Change
By Margot Hurlbert, Departments of Sociology and Justice Studies, University of Regina
To date the UNFCCC (which was established in 1992) has not created any substantive climate change legal remedies and is on the brink of not having a legally binding climate change agreement.
Emmanuel Melissaris on Ubiquitous Law - A book review
By Bruce Macallum, B.C. Ministry of the Attorney General
Melissaris’s book, Ubiquitous Law, is a welcome contribution to discussions on how legal pluralism contributes to the theoretical debate on globalization and legal practice.
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An Insider's View of Corporate Social Responsibility
August 16, 2011
Hear a series of experienced Canadian and international practitioners speak on corporate social responsibility - what it is and how it can assist your clients in meeting their obligations. Presented by the CBA National Section on International Law.
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NSIL Activity Report
By Charlotte Janssen
The National Section on International Law (NSIL) has been very active over the past year beginning with a Section Executive meeting and very learned conference, the International Law Conference: The Future of Canada-U.S. Cross-Border Relations held in Vancouver, BC (May 2010). The conference was highlighted by a thought-provoking and candid speech delivered by Supreme Court Justice Binnie on Corporate Ethics and Responsibilities. Materials from the conference are available through the CBA Store.
The Section is fortunate to have four active Committees: International Business and Regulations; International Dispute Resolution; International Law and the Rights of the Person and Communities; and International Trade and Investment.
These Committees have been busy this year hosting a number of “brown bag” events via teleconference on issues of interest, all of which were topical and well attended. Topics have included: China's position on the international monetary system, the negotiation of Free Trade Agreements and export controls. Recordings of past programs and information about upcoming programs are available on the Section website.
The International Trade & Investment Committee established a sub-committee on Export Controls, Controlled Goods and Sanctions. This sub-committee hosted a successful seminar in cooperation with the Canadian Embassy in Washington earlier this year.
The Section's International Business and Regulations Committee developed and presented a Resolution on the International Centre for Settlement of Investment Disputes (ICSID) Convention, which was presented and passed at the CBA Mid-Winter Meeting in Charlevoix, Québec. This initiative arose from our Section's engagement in a variety of consultation initiatives with the Department of Justice. If this proves successful, we will also consider doing the same for the Hague Convention on Apostilles.
If you are interested in learning more about one of our four committees or would like to join any of them please visit our Section website.
In November, the Section held very productive and informative meetings with the Department of Justice (DOJ) and DFAIT, at which we were encouraged to continue to provide input on the format of Free Trade Agreements under negotiation and various conventions on DOJ's priority list. The NSIL Executive continues to be regularly consulted by the DOJ on a variety of issues (e.g., Hague Convention and UNCITRAL developments).
Under the auspices of our existing Cooperation Agreement with the ABA Section of International Law, we have continued to interact and collaborate with this organization throughout the year. One of our executive members attended the IBA meetings in France as a representative of our Section. Several members of our Section also served as organizers and judges at the Niagara International Moot Competition held in Toronto in February 2011. We are very pleased with the ongoing and positive relationship we have with our ABA counterparts.
The aim of the Executive for this year’s is to continue to provide you with high quality programming through our Committee brown bags. In addition, we are aiming to encourage members of the CBA Atlantic province to join NSIL. To help kick this off, we are organizing a major PD event for the 2011 CBA Canadian Legal Conference in Halifax, providing “An Insider's View of Corporate Responsibility.” Anyone in the Halifax area in August is encouraged to join us Tuesday, August 15, for what promises to be an exciting 3-hour program.
Charlotte Janssen is Chair of the NSIL.
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Comments on CBA/Department of Justice Consultation
International Law Section
The Department of Justice ("Justice") regularly represents Canada in multi-lateral meetings hosted by three organizations: the Hague conference, Unidroit and UNCITRAL. Agenda and rights to participate in meetings are set by each organization. There are other meeting venues and bi-lateral negotiations that are not addressed in this commentary.
The publicly available materials on each organization's activities are summarized annually by Justice and are available online.
Hague Convention
The meeting is held in an April timeframe annually. Meetings are partially closed to Member States but some non government associations attend; however, agenda and documents are available on the Hague Conference website.
Unidroit
The meeting is held in a May timeframe annually. Governing Council members attend this meeting. Unidroit documents can be found on the Unidroit website.
UNCITRAL
The annual Commission meetings are held in a June/July timeframe at which time project prioritization is reviewed. The agenda and documents are available on the UNCITRAL website.
Justice receives materials related to meetings often with little or no advance notice. They have provided and will continue to provide copies of meeting materials to the CBA office as soon as practicable. The CBA office distributes the meeting materials on receipt.
Written comments to Justice on behalf of CBA should be coordinated through the National Section and the staff lawyer for the Section. Any official written submissions must be approved by the National Section Executive, which may take a few weeks (due to meeting timeframes).
Justice welcomes informal comments from any practitioners on any of their activities or prioritizations. Justice is also open to participating in conference calls of practitioners organized by the CBA, if there is sufficient interest on particular topics. If you wish to provide comments, you can send them to the Section's staff lawyer (Kerri Froc at kerrif@cba.org) who will collect responses and send them to Justice. This will also permit an assessment of whether there exists sufficient interest for a conference call.
Alternatively, if you wish to respond to Justice directly, simply indicate that you are responding in your personal capacity. You might consider copying your comments to the International Section, to the CBA National Office, or to the listserv for the International Section Business and Regulations Committee so that we are kept informed of the feedback Justice is receiving from practitioners.
Justice will accept volunteer consultant participation at UNCITRAL meetings, however, participation may require putting a confidentiality agreement in place and is subject to meeting protocols established by Justice. If you wish to attend as a representative of the CBA, then your representation would require approval by the National Section Executive and compliance with the CBA policy regarding representation on external bodies. Volunteer consultation does not involve fee payment, honoraria or reimbursement for expenses.
Various co-operative activities continue between the CBA and Justice. For example, Gaylene Schellenberg in the CBA National Office has been consulting on the child status project at the Hague Conference since last April and is working with several CBA Sections on a CBA response. Also, the Bankruptcy Section of the CBA has provided Justice with ongoing support on an insolvency project at the UNCITRAL Commission.
TMX Group—London Stock Exchange group merger
By Noemi Gal-Or
The TMX Group (the TMX) and the London Stock Exchange Group (the LSE) recently announced a merger of their two holding companies, in which the combined entity would have a dual stock market listing and be jointly headquartered in London and Toronto. The plan is for the combined entity to be worth just under $7.7 billion and have combined listings of 6,700 issuers (making it the world’s largest exchange by numbers of companies traded). The LSE would have 55 percent control of the combined business, with the TMX owning the remaining 45 percent. The deal requires the approval from both provincial and federal Canadian regulatory authorities.
The deal has been receiving mixed reactions in the Canadian business community, and has also been the subject of Ontario Government Select Committee hearings. While the proposed TMX/LSE merger is being reviewed in Canada, other mergers are being considered worldwide, including the Deutsche Boerse/NYSE and Singapore/Australian Securities Exchange proposals.
Noemi Gal-Or, Department of Political Science, Kwantlen Polytechnic University, Surrey, B.C.
Activities of the International Trade & Investment Committee, December-March 2011
By Noemi Gal-Or & Ian Laird, Co-Chairs
On December 1, 2010, Mr. Steve Verheul, Canada’s Chief Trade Negotiator for Canada-EU Comprehensive Economic and Trade Agreement (CETA) Negotiations spoke to the Committee regarding the status of these important talks. Mr. Verheul presented a brief overview of the status of the negotiations and then discussed the approach being taken to the remaining issues on the table.
On January 18, 2011, an event entitled “U.S. International Traffic in Arms Regulations (ITAR)” took place at the Canadian Embassy, Washington, DC. The information session included remarks from Minister Rona Ambrose and others regarding their perspectives on the revised ITAR provisions in the context of defense controlled items to foreign companies employing dual and third country nationals. The event was organised and held jointly with the ABA, OBA, and CUSLI.
On February 15, 2011, Bernard Roth, partner at FMC, delivered a presentation titled “Potential Impacts of US EPA GHG Regulation on the Development of the Canadian Oil Sands.” The event took place as a national brown bag conference call and an in-person session at the Calgary CBA offices. The speaker provided a good overview of the types of regulations coming out of the US and their potentially impact on Canada. Reliance by Canada on the US as its only market keeps Canada vulnerable to changes in the American policy and regulations, therefore the best solution for Canada to mitigate the dependency is to explore new markets. The event was made possible through the collaboration with the National Section on International Law's International Business and Regulation Committee and CBA-Alberta's International Business Law Section.
Noemi Gal-Or is in the Department of Political Science at Kwantlen Polytechnic University. Ian Laird is a special legal consultant at Crowell & Moring in Washington, D.C.
The relevance of the turbulent first quarter of 2011 to the international legal profession
By Noemi Gal-Or
That international law is relevant also to the practice of domestic law is by now axiomatic. Four months into 2011, momentous events abroad have had a direct impact not only on the Canadian government but its citizens and economy as well. Governed at least to some extent also by international law, these events have also caught the attention of the legal community.
Take for instance the uprisings in the Middle East. The flight of members of the immediate family of the former Tunisian president to Canada, notably his brother-in-law Belhassen Trabelsi, had an immediate relevance in this country, his second abode. Divesting Mr. Trablesi of his permanent resident status did not stem the flow of international legal consequences. Modifying the problem to an “asylum issue” would involve international legal considerations, and in any event, the new regime in Tunisia is likely to continue to demand access to his assets, if not his person too. And while legality of freezing the Tunisian family's assets was being debated, another historic event in the Middle East was unfolding.
The crisis in Libya has demanded urgent legal decision-making of another sort, namely concerning the management of Libya’s sovereign/Qaddafi’s bank accounts. As the Tunisian uprising continued, the crisis in Egypt and Libya deepened, necessitating the lifting of Canadian citizens out of harm's way, and Canadian preparations for a possible participation in an international humanitarian or military intervention in Libya.
Fast forward to Japan, and there, in addition to Canada's assistance in the wake of the tsunami/earthquake/nuclear disaster, it is reasonable to expect many years of reassessment and international coordination in matters of emergency preparedness, energy, and environmental protection.
At present, Canadian-Japanese dialogue on the disaster, and coordination with Pacific Rim states and international organizations such as the International Committee of the Red Cross and the United Nations, are under way. But the consequences of the multifaceted disaster are sure to demand further engagement. Legal expertise will constitute an important aspect of matters ranging from private individuals' concerns and claims relating to health, travel, and education well as corporate business concerns whether in manufacture, commerce, in agricultural products, lumber, mining, energy, insurance, and much more.
Finally, the continuing cholera epidemic in Haiti has now crossed the Atlantic, reaching Canada with the first case confirmed in Quebec. It is hoped that this represents the entire extent to which the disease will spread in Canada. However, it brings to mind the 2002-2003 SARS and 2009 H1N1 pandemics, which put in motion an accelerated chain of reaction and transactions, and which, among other things, required also the attention of lawyers, both in private practice and public international law. The cancellations of international travel plans for tourism and work purposes, the increased demand for medication, and impact on airlines were a few of the many consequences. These impacts involved the interpretation of private contracts in light of relevant treaties governing healthcare, the pharmaceutical industry, and air travel. There were re-assessments of existing agreements and regulations concerning international healthcare cooperation and research collaboration, airline terms of travel, etc., as a result.
What does this mean for the international legal profession? Surely, it suggests a mounting demand for international legal expertise. Given the escalating implications for Canada, the capacity of our government will be tested More outsourcing of legal services may ensue. It can be expected that Canadian domestic interests and cases will prove to be subject to international legal regimes and as such, demand commensurate professional legal expert advice.
Noemi Gal-Or is in the Department of Political Science, Kwantlen Polytechnic University.
Merrill & Ring Forestry – Breathing new life into the minimum standard of treatment
By Wendy Wagner
Critics of Chapter 11 of the North American Free Trade Agreement argue that the protection afforded to investors is too broad and that the standards for expropriation, non-discrimination and the minimum standard of treatment have been interpreted in “an overly expansive, pro-investor direction.” These criticisms do not, however, find support in the statistics – since the inception of NAFTA, investors have been successful in approximately 12% of the claims initiated. To date there has been only one successful claim for expropriation pursuant to NAFTA Article 1110. The process is slow and expensive owing to the vigorous defence of the claims by the NAFTA parties on both procedural and substantive grounds.
While there were several early successes by investors claiming a breach of the minimum standard of treatment obligation in NAFTA Article 1105, the adoption in July 2001 of the Notes of Interpretation of Certain Chapter 11 Provisions appeared to narrow the scope of protection afforded to investors. Though the investor ultimately was unsuccessful, the interpretation of Article 1105 adopted by the tribunal in Merrill & Ring Forestry marks a significant departure from previous approaches, and if followed by subsequent tribunals could breathe new life into an obligation that previous tribunals had frozen in time. This case summary discusses the Merrill & Ring claim and Tribunal findings and comments upon the interpretation of Article 1105 adopted by the Tribunal.
Read the full article 
(First publshed in the ABA International Section Trade Committee newsletter and reproduced here with permission).
Wendy Wagner is a partner in the Ottawa office of Gowlings LLP.
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The challenge of “consensus” of the United Nations Framework Convention on Climate Change
By Margot Hurlbert
To date the UNFCCC (which was established in 1992) has not created any substantive climate change legal remedies and is on the brink of not having a legally binding climate change agreement. The Kyoto Protocol was regarded as the significant legally binding “agreement”, which was hoped to be replicated in Copenhagen (2009) and later in Cancun (2010). However, Kyoto did not provide for legal remedies and was therefore a rather toothless agreement (Pardy, 2004). Copenhagen’s “Accord” and Cancun’s “Agreements” are similar. They both lack legal remedies and contain even more flexible language than the Kyoto Protocol surrounding mitigation “pledges” and obligations of parties.
Why has the state of international climate agreements regressed? One answer may be the process and procedures implemented by the UNFCCC and the emerging question of how an agreement should be arrived at. Questions of process and specifically what “consensus” means at the UNFCCC Conference of the Parties (COP) was an important topic of the COP 16 in Cancun, Mexico in 2010. The emergence of this issue is not surprising given the outcome of the COP 15 in Copenhagen when a group of powerful elites penned the Copenhagen Accord and brought the document back to the COP for ratification. Although the COP only “took notice” of the Copenhagen Accord, many nations subsequently signed onto the Accord in later months.
Because of this break from standard meeting procedures of the UNFCCC and concerns of transparency and participation, many voiced dismay and questioned the legitimacy of the UNFCCC process. To alleviate these concerns traditional governance procedures of the UNFCCC were once again used at Cancun.
The Copenhagen Accord is not a legally binding agreement, has not been signed by all of the 193 parties, and therefore is only a statement of intent (FCCC, 2009). The Cancun Agreements imported essential elements of the Copenhagen Accord into the UNFCCC framework (“taking note” of pledges to be implemented) and operationalized certain elements of the Accord including the new Green Climate Fund for developing countries (FCCC, 2010). These Agreements still fall short of legally binding and enforceable commitments. Further, these Agreements are believed not to contain significant pledges to prevent average temperature increase beyond the agreed upon targets of two percent (Chen, 2011).
It is evident effective participation after COP 15 was a significant issue. The COP 16 in Cancun unfolded vastly different than the COP 15 in Copenhagen. Whereas Copenhagen negotiations were characterized by, “mistrust, confusion and parallel discussions by experts and Heads of State and government,” Cancun negotiations displayed a strong commitment to including stakeholder voices and restoring faith in the UNFCCC process (IISD, 2010, P. 29). However, participation remains an important theme of research as in Cancun the consensus rule was debated and informal consultations held on the topic without resolution (IISD, 2010, p. 3). Although the UNFCCC operates by consensus (as the draft rules of procedure are applied with the exception of rule 42 on voting (FCCC, 1996).
Confusion over what is consensus and how the UNFCCC operates by consensus is evident. Bolivia opposed the Cancun Agreements stating they were a step backward as a decision on a second commitment period under the Kyoto Protocol was postponed “indefinitely” and this opened the door for a system of “pledge and review.” As well the document outlining pledges being agreed to didn’t yet exist. In Bolivia’s closing submissions it reiterated that its opposition meant there was a lack of consensus and Bolivia asserted that consensus was the requirement under the rules of procedure (IISD, 2010, p. 5). President Espinosa responded that:
“Consensus requires that everyone is given the right to be heard and have their views given due consideration, and Bolivia has been given this opportunity. Consensus does not mean that one country has the right of veto, and can prevent 193 others from moving forward after years of negotiations on something that our societies and future generations expect” (IISD, 2010, p. 28).
On this issue the United States is recorded as observing that the practice under the UNFCCC had been closer to general agreement than consensus, since the COP had never adopted its rules of procedure (IISD, 2010, p. 4).
It seems that some debate exists on what exactly “consensus” means. To some, it is having complete agreement by all parties in respect of a decision. Apparently Bolivia is of this opinion. To others, it is not complete agreement but almost unanimity with only one dissenter. President Epinosa would be of this opinion. To others consensus is more akin to an agreement held by a majority of participants. The United States would appear to be a supporter of this definition. The range of these perspectives run from complete consensus to a definition of consensus more akin to the opposite of consensus, Robert’s rules of order or a “non-collaborative” model of decision making. Non-collaborative decision making loses all of the benefits of consensus decision making including, better decisions, better endorsement and implementation of decisions and better inter state relations as a result of collaborative processes (Hartnett, 2011).
It is apparent that after the Copenhagen experience in which a select few heads of state cobbled together an agreement and presented it to the remaining states the seeds were planted for a serious review of UNFCCC procedures. Unless a concerted effort is made to address this issue, the practice in Cancun of allowing one dissent will continue. Perchance the numbers of dissenters will increase and the practice will be as suggested by the United States: to allow a minority to be outvoted. The legal profession addressing this issue seems a natural fit. Acquainted with rules of order, dispute resolution techniques, natural justice, and procedural justice makes the legal professional the optimal agent to explore, develop a dialogue and resolve a tricky issue plaguing the UNFCCC and preventing the achievement of an accepted climate change agreement. We should mark our calendars for South Africa, COP 17, December, 2011.
Chen C, Hare B, Hagemann M, Hohne N, Moltmann S, Schaeffer M. 2011. Ecofys briefing paper. Ecofys Climate Analytics available online.
FCCC, 2009/CP/2009/L.7 18 December 2009
FCCC/CP/1996/2
FCCC/CP/2010/ Cancun. Decision 1/CP.16 and Decision 1/CMP.
Hartnett, T. (2011). Consensus-Oriented Decision Making. Gabriola Island, BC, Canada:New Society Publishers.
IISD. 2010. Reporting Services, Earth Negotiations Bulletin, COP 16, Final, 12(498), p 4. online
Pardy B. 2004. The Kyoto Protocol: bad news for the global environment. Journal of Environmental Law and Practice 14, pp. 27-43.
Margot Hurlbert is an Assistant Professor in the Department of Sociology and Justice Studies at the University of Regina.
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By Bruce Macallum
The well-known legal theorist Ronald Dworkin has stated that all legal interpretation, no matter how technical or mundane, contains some un-articulated theoretical assumptions. This has been referred to as the ‘silent prologue of law. That is why practicing lawyers need to be mindful of the potential hidden role of legal theory in practical legal argument and practical legal advice. With the increasing influence of the forces of globalization in day to day legal practice, it is important for practicing lawyers to be knowledgeable about globalization theory. It is with this context that Melissaris’s book, Ubiquitous Law, is a welcome contribution to discussions on how legal pluralism contributes to the theoretical debate on globalization and legal practice.
Following the current trend of global legal theorists to re-construct legal practice upon the reality of "globalization," Melissaris theorizes that law cannot be grounded exclusively in the nation state. In diminishing the role of the nation state, he argues that law comes out of the dialogue of participants in specific contexts. The dialogue creates the normative expectations which drive the creation of law.
Ubiquitous Law provides new insights into how the emerging new globalized pluralistic legal order, which is composed of law from a variety of legal sources, further develops an understanding of globalized law’s ubiquity.
Read the full article
Bruce Macallum is with the B.C. Ministry of the Attorney General. The views expressed are not intended to represent the views of the Ministry of the Attorney General.
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