Holiday Break!

CUSLI Nexus is will taking a holiday break until the new year.

Thanks for your readership, and--fear not--new posts in the New Year await.

Supreme Court of Canada Offers Test to Permit Removal of Testifying Witness's Niqab (Read the Dissent)

When should a niqab-wearing witness be forced by the court to remove her niqab when testifying? Don't have time to the read the full decision? Read the summary below; and then--whatever your position--read the dissent--it's masterful judicial writing.

You can read the full (and rather short) decision here, courtesy of CanLII. In short, a niqab can be removed; decision offers a very mushy, skeleton test; remands back to preliminary court to do the test.

I think the most compelling writing must go to the dissent by Rosalie Silberman Abella, which blows serious holes in the "demeanor ideal" be pushed by the majority, and shows a potential and very serious ill-effect of the majority's rule: a sexual assault victim may "be forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all."

The dissent also uses the most effective (or, depending on your position, manipulative) rhetorical tools to convey its message, not an unusual advantage when writing the losing side.

Highlights--majority holding:

• Four-inquiry, factor test that goes against having a "clear rule" in favor or removing or not removing a witness's niqab: 
• (1) does removal "interfere with her religious freedom"? 
• (2) permitting niqab "create a serious risk to trail fairness" (i.e. uncontested testimony doesn't require removal)?
• (3) alternative means (totally punts this to the trial judge to figure out)
• (4) "do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?" [The key inquiry]

• Test for inquiry (4):
• "The judge must assess all these factors ["importance of religious practice to the witness," "state interference" with that practice, "actual situation" in court, "societal harms," and interest of the accused and nature of the evidence (yeah that last one blurs with (3)).] and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so."

Highlights--concurrence (agrees with test, but makes clear preference for a "clear rule" that niqab may be removed):

• From this broader constitutional perspective, the trial becomes an act of communication with the public at large. The public must be able to see how the justice system works. Wearing a niqab in the courtroom does not facilitate acts of communication. Rather, it shields the witness from interacting fully with the parties, their counsel, the judge and the jurors. Wearing the niqab is also incompatible with the rights of the accused, the nature of the Canadian public adversarial trials, and with the constitutional values of openness and religious neutrality in contemporary democratic, but diverse, Canada. Nor should wearing a niqab be dependent on the nature or importance of the evidence, as this would only add a new layer of complexity to the trial process. A clear rule that niqabs may not be worn at any stage of the criminal trial would be consistent with the principle of public openness of the trial process and would safeguard the integrity of that process as one of communication.

Highlights--dissent:

• Rule: "Unless the witness’s face is directly relevant to the case, such as where her identity is in issue, she should not be required to remove her niqab."
• All of these are departures [permitting stroke victims, use of interpreter] to testify, from the demeanour ideal, yet none has ever been held to disqualify the witness from giving his or her evidence on the grounds that the accused’s fair trial rights are impaired. Witnesses who wear niqabs should not be treated any differently. 
• "A witness who is not permitted to wear her niqab while testifying is prevented from being able to act in accordance with her religious beliefs. This has the effect of forcing her to choose between her religious beliefs and her ability to participate in the justice system. As a result, complainants who sincerely believe that their religion requires them to wear the niqab in public, may choose not to bring charges for crimes they allege have been committed against them, or, more generally, may resist being a witness in someone else’s trial. Where the witness is the accused, she will be unable to give evidence in her own defence. "
• "The majority’s conclusion that being unable to see the witness’s face is acceptable from a fair trial perspective if the evidence is 'uncontested', essentially means that sexual assault complainants, whose evidence will inevitably be contested, will be forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all. 

Toronto Mayoral Election Shake-Up: Ranked Ballots In 2018?

Maclean's reports on Dave Meslin's impressive efforts to get ranked elections up and running in Toronto by 2018:

In this latest poll’s scenarios, for instance, Chow would beat Ford and a range of competitors. Without her in the race though, Ford would beat a range of three- or four-way splits against him. The poll’s results are exasperating in their attempts to puzzle through all the permutations: Chow, Ford, Vaughan, and Carroll; Chow, Ford, Tory, Vaughan and Carroll; Chow, Chow, Chow, eggs and Chow; Ford, Vaughan, eggs, sausage and Chow, and so on.

These are not the makings of a fruitful conversation. Canadians like to grouse about our first-past-the-post elections, but have been reluctant to abandon their simplicity. Four provincial referenda on full-scale reworkings of provincial governments have failed. In Toronto, though, a more manageable change might be in the works.

In Toronto, Dave Meslin, a kinetic, well-known public advocate, has spent the past year lining up support for ranked ballots, a system that could bring election results more in line with what the majority of voters would prefer. Meslin has assembled a roster of city councillors who’ve endorsed his drive, including some of Rob Ford’s staunch conservative allies, who’ve taken both Meslin and and his proposal to their town halls, where the idea seems to have been warmly received. The logistics of preparing for an election has ruled out 2014, but in order to prod the provincial government into rewriting election laws to open the door for 2018, Meslin and his allies hope to see a council vote that will get the ball rolling this coming spring.
It works like this: Instead of voting for one candidate, voters would instead rank the candidates in order of preference. When the votes are counted, if a single candidate has 50% of the first-choice vote, they win. If nobody reaches 50%, then the last-place finisher is dropped from the ballot, and their supporters’ second-choice votes are distributed. The votes are counted again, and the process repeats itself until someone has secured 50% of the vote.

Maclean's Talks Canadian Wild Turkey Hunting

Not only an enjoyable read, but shows the many interesting ways states and provinces can find new revenue--and the terrible trouble wild turkeys can make.

From yesterday's Talking turkey article:

...

If given the go-ahead, Wilson and others will travel to Ontario this winter, where they plan to use air-powered net cannons to trap 200 of the province’s estimated 70,000 wild turkeys. The birds will be tested for diseases, put in crates and shipped east to be released. They plan to repeat the process every winter for four years, aiming to more than double the existing population from 600 to 1,400, not including any natural increase. A biologist with the turkey federation estimates New Brunswick could support 10,000 birds.

One reason the province is considering a hunt is the money. Maine started its own program with 40 stocked birds in 1977 and now has roughly 60,000, says Northrup. Each year the hunt generates millions of dollars in spinoff revenue for the state. For every New Brunswick hunter who heads south to bag a bird, that’s money the province loses.

Yet many farmers are horrified at the idea of importing more of the birds, because wild turkeys are known for their voracious appetites. In Ontario, for instance, the birds are regularly blamed for devastating crops. With more than 300 wild blueberry farms in New Brunswick, there’s a lot at stake.

Dawson Strategic's December Briefing: A TPP Holiday Season

For readers interested in the Trans-Pacific Partnership (TPP), do check out Dawson Strategic's December briefing. Whether on the big-picture, or the leading issues within the TPP talks, the briefing's three articles are must-reads.

One particularly interesting section of Dawson Strategic's December article, The TPP: What's In It For Canada?:

Beyond its defensive interests, the TPP is a central component of Canada’s Asian and emerging markets strategy. Much of 2013 will likely be spent reconciling the trade rule-making interests and capacities of advanced industrialized economies with those of emerging economies such as Vietnam and Peru. Advanced economies like the U.S., New Zealand, Australia and Canada will bump up against each other on issues like investor-state dispute settlement and dairy market access, but there will be relatively few fireworks. In areas like intellectual property and labour mobility, the commitments that Canada is making with the EU are likely to go much deeper than anything we can expect from the TPP.

Image of the Day: Canada-U.S. Trade

The Globe and Mail offers some interesting graphs of where Canadian business leaders think their export market heading in the near-future.

Check out all the results and related articles here, but this graph was the most surprising--showing that most  participants believing America's share of Canada's export market will stay the same or even increase:

Let's Get Over "Net Benefit" Test Carping: Or Why Political Law is Still Law...and the World's Still Here

By Keith Edmund White, Editor-in-Chief

More complaining about the dreaded political nature of Canada's revamped "net benefit" test.  Critics seem to be saying, 'If a law's a law, it should always be transparent and consistent--just like jury decisions!'  Keith Edmund White looks at Don Lenihan's criticism of the Harper government new rules of foreign takeovers (i.e. the "net benefit" test), and stands up for the messy, status quo the revamped rules leave in place.  Added bonus:  mention of Conrad Black.

Don Lenihan, Vice President at Ottawa’s Public Policy Forum, hits the Harper government’s new rules on foreign takeovers of strategic Canadian industries (and compliments Conrad Black).
From Lenihan’s iPolitics article:

If we really are at the beginning of a long-term trend that will force the federal government to begin employing controversial (possibly highly controversial) measures to protect Canada’s strategic assets, the goal of the policy should be to ensure that the decisions are transparent, effective and fair.

Unfortunately, on this score the new rules raise more questions than they answer. Do we really want to include all SOEs under one catch-all rule? If an SOE is willing to comply with the same rules as private sector companies, should this make a difference?

If the policy allows “exceptional circumstances” to override the rules, how will these be defined? How will the government deal with future private sector cases that are similar to the Saskatchewan Potash Corp? What other resources or industries could be declared strategic assets?

What options are open to the government to create the kind of “middle ground solution” proposed by Black?

Lenihan echoes the worries of many commentators about Canada’s vague “net benefit” rules.  The tacit underlying assumption of Lenihan’s critique: all legal determinations should be consistent and transparent.  But aren’t foreign takeovers of critical Canadian industries (or of any nation) as political—as say—the political and inconsistent decisions to raise or lower taxes or conclude a foreign investment treaties?  And in the case of foreign takeovers, are any two Canadian industries really the same?

But what will keep Canada from deterring smart foreign investment?  Simple:  If Canada drives away smart investment, it will feel it where it counts--the pocket-book.

Sure, this approach may not have the gossamer shine (and superficiality) of administrative consistency, but there are legal issues that societies do not settle through bright-line rules. And those issues tend to be that way for a reason.

And Lenihan's critique--making a new sub-set of rules for SOEs that comply with private sector practices--shows just how illusory the quest for a Black-ian "net benefit" middle-ground is.  The more Canada tries to make rules for all possible foreign takeover scenarios, the longer the rule becomes, perhaps to the point of incomprehensibility--and the easier it is manipulated.  Just ask anti-Affordable Care advocates how they feel about the ACA being considered a 'tax' and not a 'mandate' by the controlling opinion of the Supreme Court, thereby passing U.S. constitutional muster.  The point:  rules don't always bring clarity, especially when they are voluminous and involve hot-button issues.  

Oh, and wait, we're worried, in the case of Chinese state-owned enterprise CNOOC takeover of Nexen,  of Canada's notoriously illiberal society negatively impacting the struggling, still-malleable but liberal-idolizing economy of China?   

Check out one notable exception to the chorus of "net benefit" naysayers, Jeffrey Simpson's article in last week's The Globe and Mail:

China [owner of Cnooc who put in the bid for Nexen] wants things both ways: that its SOEs can buy elsewhere but others can’t buy in China. That the Harper government has now identified a sector of the Canadian economy essentially off-limits to SOEs can’t logically be objected to by China, which puts big swaths of its economy out of reach of foreign investment or insists that foreign companies can only buy minority interests or participate in joint ventures.

China has been pursuing a policy of locking up natural resources wherever they can be profitably bought, and Canada seemed a likely next target. If China doesn’t like the new Canadian guidelines, there are plenty of other opportunities around the world. If China chooses not to test the guidelines, Alberta’s bitumen oil will still interest other investors.

The challenges of bitumen oil are so many that the new guidelines’ impact is among the least threatening. The changing oil scene in the United States, the difficulty of getting approval for pipelines, the growing emissions of greenhouse gases, the discount price for oil to the U.S. and high production costs are among the industry’s key challenges.

Mr. Harper, whose foreign policy is too often characterized by finger-waving intransigence, struck a reasonable balance in this instance between domestic interests and international concerns.

Is this the best system?  Probably not.

Is it a workable system for a sensitive topic in a democratic society?  Sure seems that way.

In any case, Lenihan should check out the Journal of Parliamentary and Political Law.

Also, to all readers, know that the world (and Canada) will survive the new "net benefit" test; just like the world (and Canada) survived the last one.

Canada, United States and Gun Violence: Global Edmonton Questions If Gun Laws Explain the Difference

Global Edmonton offers an excellent article probing the role gun control laws have on the different levels of gun-related violence in Canada and the United States.  In short, "guns laws are not necessarily the cause," at least according to Ottawa defense attorney Solomon Friedman.

From the article:

Friedman, who has expertise in gun laws, said he “runs a comprehensive criminal defence practice, and I represent people charged in gang shootings, where these individuals never would have qualified for a firearms licence in the first place. Bad people want to do bad things; they find a way to do them.”

According to Statistics Canada, this country had a firearms homicide rate of 0.5 per 100,000 in 2011. The Centers for Disease Control and Prevention say the rate in the U.S. in 2010 – the most recent data available – was 3.6, or more than seven times the most recent rate in Canada. 

Friedman said each U.S. state has varying degrees of gun control but, in general, laws are looser in the U.S. in terms of what kinds of weapons people can have. And while Friedman did not dispute that the U.S. has a bigger problem with gun violence than other western countries, including Canada, he said gun laws are not necessarily the cause.

“We’ve been looking for a long time for a correlation between civilian gun ownership and gun crime . . . and it’s my understanding that the research has not borne out that type of correlation, that the correlation is with socioeconomic factors, with poverty, with mental health.”

UOttawa Law Prof Geist Hits Canadian Government's TPP Secrecy

By Keith Edmund White, Editor-in-Chief

Dr. Michael Geist, a leading voice on copyright and UOttawa professor with a syndicated column on technology law to boot, last Sunday hit the Harper government for its lack of transparency over Canada's participation in the Trans-Pacific Partnership (TPP).

The column's main value added for other similar articles: its focus on the content of Canadian public commentary on the TPP and the TPP split in the Canadian business community. From Geist's column:

In addition to tens of thousands of form letters and emails criticizing the TPP, the government received hundreds of individual handcrafted responses that unanimously criticized the proposed agreement.

A review of more than 400 individual submissions did not identify a single instance of support for the agreement. Rather, these submissions typically expressed concern with the prospect of extending the term of copyright or adopting restrictive digital lock rules.

The documents also revealed that the Canadian business community was split on the agreement, with numerous companies and associations identifying concerns about the potential direction of the TPP.

Leading telecommunications companies, including Bell, Rogers, Shaw and Telus, cautioned against changes to Internet provider liability rules; groups representing the blind warned against new restrictions to accessing digital materials; Oxfam Canada worried about the TPP’s impact on pharmaceutical pricing; and the Canadian Library Association expressed fears about a reversal of recent changes to copyright damages rules.

Main lesson:  trade policy always picks winners and losers--the fight is over who they should be.  

Now there is a fair rejoinder to Geist's thesis:  If trade deal talks are ever fully transparent they'll never be concluded, since free trade pits the generalizable benefits of liberalized trade against the deep and particularized interests of a few key economic actors, and Mancur Olson collective action tragedy always wins.   Now was that last statement wildly shallow and profoundly undemocratic?  Yes.

For the sake of balance, I'll highlight (again) Beyond the Border, 2013: Inching Toward a Deal by Colin Robertson in Wednesday's iPolitics.

BTB: Bilateralist Reports on Progress, and (Relative) Risk to North American Exporters

Luiza Ch. Savage, at her blog Bilateralist and at Mclean's D.C. correspondent, shared an excellent BTB update chart prepared by Birgit Matthiesen that details and has and has not been accomplished by the governments of Canada and the United States.

You can find Matthiesen's 2-page side-by-side comparison here, and Savage's Maclean's article here.

Savage, not getting buried in details, succinctly gets to the 'impact' of differing rates of success on BTB's various objectives:

This is complicated stuff and no one expects overnight changes. But timing matters, too. For example, the governments reported progress on a pilot projects for harmonizing cargo screening for North-America-bound cargo at the ports of Prince Rupert and Montreal. There is a risk that quick progress on such“perimeter” elements coupled with slow progress on expediting the land border between Canada and the U.S. could inadvertently disadvantage North American manufacturers relative to exporters from, say, Asia or Europe.

Says Birgit Matthiesen, the Washington representative for the Canadian Manufacturers and Exporters:

“With the increased competition from third countries in the last few years, and what is anticipated from the TPP and Canada-EU trade agreement, manufacturers in Canada and the U.S., and their business partners, are going to be looking for real relief from transactional costs and compliance burdens at the land border. If not, the North American supply chain could be at a competitive disadvantage.”

BTB RCC Wrap Up, Next Week, and Shameless Self-Promotion

By Keith Edmund White, Editor-in-Chief

Exciting Posts Next Week & Shameless Self-Promotion 

Readers, please forgive the delay in postings.  We have a slate of blog postings and expert Q&As in the hopper for next week.

In the meantime, CUSLINexus will engage in some self-promotion.  Check out Keith Edmund White's recent postings for Beyond the Border Observer blog:

Week in Review:  BTB and the Regulatory Cooperation Council,
BTB Delivers:  Pilot Program Offers Faster Border Commutes for Trusted Traders

BTB and RCC Progress Reports

And, keeping up with the BTB & RCC theme, readers should know that the first annual progress reports were released on these bi-national joint initiatives to enhance border security and cross-border trade. 

The BTB progress report can be found here, and the RCC progress report can be found here.

And read Keith's post on these reports at Woodrow Wilson Center's Beyond the Border Observer blog.

More BTB & RCC Resources

For more information on the status of these two important bi-national efforts, check out the following sites:

Canada and United States report progress on perimeter security and economic competitiveness, Prime Minister of Canada, 12/14/12
White House Releases Report on Beyond the Border and Regulatory Cooperation Council with Canada, The White House, 12/14/12
Beyond the Border, 2013:  Inching Toward a Deal, iPolitics, Colin Robertson, 12/12/2012
Beyond public view:  Harper's Beyond the Border initiative a year later, rabble.ca, Stuart Trew, 12/13/2012
Beyond the Border website
Regulatory Cooperation Council website

Michigan's Right to Work Legislation Sends Ripples into Ontario

It looks like Michigan, in less than 4  7 days, will go from a union-state to a right-to-work state. 

While you can check out coverage of the controversial move by the Michigan GOP, iPolitics offers an interesting Canadian labor take on the news:

As key auto industry jurisdictions, Ontario and Michigan are already in competition for jobs and investment. Now, from the perspective of companies looking to open or expand, Michigan will have an advantage.

This could bolster Ontario PC leader Tim Hudak’s case to implement right-to-work in the province, Moffatt said

...

Lewenza intends to speak with his UAW counterpart, Bob King, about the developments and added that the CAW would participate in any mass demonstrations in Michigan.

“I know that I would be the first one to respond to a call and ask CAW members to participate because I do believe an attack on workers, regardless of border, is an attack on the labour movement more generally.”

CNOOC Nexen Bid Part 3: Macleans Talks With Debra Steger

Check out Erica Alini's great Q&A with UOttawa professor, and former trade negotiator for Canada, Debra Steger.

Two main Steger snippets:

Compared to the U.S. and Australia, Canada’s Act, with the two review processes for “net benefit” and “national security,” is confusing and difficult to apply in practice, as in this case involving CNOOC. The “national security” process is also highly non-transparent in that there are no criteria specified for a review and no decisions are ever made public. The U.S. has one test for direct acquisitions: national security, with a list of 12 factors. These are wide-ranging and include: domestic production for national defence requirements, potential effects on U.S. technological leadership in areas affecting national security, potential effects on critical infrastructure in the U.S., long term projection of U.S. requirements for energy and other critical resources and materials. The U.S. approach is more specific, transparent, and integrated than the Investment Canada scheme. The U.S. CFIUS model also requires nine agencies to work together to carry out reviews. This would appear to allow for a broad range of views and better decision making than the Canadian approach in which Industry Canada plays the lead role.

...

My prediction is that the government will allow the investment, albeit with a requirement for undertakings designed to ensure that the resulting business operates in a transparent and commercial manner in accordance with Canadian corporate governance norms and likely to provide net benefit to Canada.

CNOOC's Nexen Bid: North Sea Oil Chinese Concentration? And Waiting for Canada's New 'Net Benefit' Test Parameters

By Keith Edmund White, Editor-in-Chief

If Nexen bid is approved, would China have a worrisome extent of control over Canada's largest North Sea oil field?

Owing to the surge of interest in CUSLINexus's last post on Canada's "net benefit test" and it's impact on CNOOC's takeover bid of the Canadian energy company Nexen, readers may be interested in (1) an update on revisions to Canada's "net benefit" rule and (2) a news exclusive regarding CNOOC's Nexen bid.

What to really watch for in a new Canadian "net benefit" test

WSJ reports on suspicions that changes to Canada's "net benefit" rule test will be very similar to Austrailia's approach.  But huge missing link in the article:  whether Canada adopts an Austrailian-like "net benefit" test or keeps its own, both are basically subjective tests.   The one seemingly change:  the national security review and "net benefit" review may be combined into one process, though if they are run by two different agencies that wouldn't be a huge reform.  

From WSJ:

Charles St-Arnaud, foreign-exchange strategist and economist at Nomura, said in the report that Canada’s new guidelines are likely to mimic Australia’s template in how that resource-rich economy judges foreign investments. The Australian criteria include: national security, which is already incorporated as part of Canada’s foreign-investment review; antitrust issues; the impact on tax revenue; jobs and a possible “fair return” for the local community; and the “character” of the investment, which is a catch-all category that considers the investor’s transparency and corporate structure.

Mr. St-Arnaud noted that Australia has a special provision governing state-owned enterprises, such as Cnooc and Petronas, in which policymakers consider whether the planned investment is of a commercial nature or done for “political or strategic objectives.” Matters that could support a SOE-led takeover in Australia include the investor’s willingness to list shares on the local stock exchange. As it happens, Cnooc promised to do just that when it unveiled its initial bid for Nexen in July.

Nomura’s suggestion that Canada might follow the Australia example comes after a Calgary think tank, the Canadian Defence and Foreign Affairs Institute, warned Ottawa not to follow the path of another resource-rich nation–Mongolia–that scared off international investors when it introduced new foreign investment guidelines last spring.

Instead of obsessing over name-changes to Canada's open ended "net benefit" test, the key is to look at whether (1) the test becomes more objective and (2) if the "net benefit" test and national security review are streamlined into one test, or if fewer federal agencies are responsible for foreign takeover bid reviews.

Would Approving CNOOC's Bid for Nexen Give China to Much North Sea Oil Control? 

And, while Canada is still reviewing the CNOOC bid under its current "net benefit" test, Bloomberg obtained a briefing memo prepared for Prime Minister Harper on the Nexen bid that emphasizes the considerable amount of control China would have over Canada's North Sea oil operations.

Courtesy of iPolitics, but from Bloomberg:

CNOOC Ltd.’s $15.1 billion takeover of Nexen Inc. would give the Chinese company the largest stake of an oil field in the North Sea that “has increasingly influenced” global oil prices, according to a memo sent to Prime Minister Stephen Harper by Canada’s top government worker.

...

It also cites the commitments CNOOC promised at the time, including establishing Calgary as its North and Central American head office, maintaining Nexen’s employment level and management, and enhancing Nexen’s capital spending.

The memo says the bid would mean the Chinese government would own a 16 per cent share of Syncrude, Canada’s biggest oil- sands project in production, with China Petroleum and Chemical Corp., known as Sinopec, owning 9 per cent and CNOOC acquiring Nexen’s 7 per cent.

From previous reports, it still appears the Nexen bid will be approved.  But, as reported in yesterday's Montreal Gazette, Canada has no problem extending (for a third time) the review process, and it's clear Alberta's provincial government wants its voice heard in the "net benefit" review process.

Don't Trust the Arbitrators? Pt. 2

By Keith Edmund White, Editor-in-Chief

So, international trade arbitrators are getting a bad wrap from the Belgium-based, anti-corporate lobbying organization Corporation Europe Observatory (the appropriately acronym-ized "CEO").

My twitter friend, Marek Krasula, who first alerted me to the report, shot me over a very helpful blog posting last night.  In short:

• There are 20-year old IBA Rules for International Arbitrators exist [More IBA guidelines, including conflict of interest guidelines, are available here.];
• a very helpful, if a bit short on readability, 2010 Wolters Kluwer blog posting exists on the subject;
• and, the post can be summed up best as:  While the IBA gives ethical guidelines, there is no uniform, international "mechanism to control an arbitrator's behavior," but some arbitral bodies that have done this themselves.

From the 2010 Philipp Peters et al blog post:

Initiatives like the ABA-AAA Code of Ethics for Arbitrators in Commercial Disputes should therefore be welcome. On a broader international level, the IBA Rules of Ethics for International Arbitrators are now more than twenty years old, and even though the discussion about ethics is far from being dead, it seems to have shifted more towards questions of counsel ethics while codes of conduct for arbitrators focus mostly on the questions of impartiality and independence. While it is perfectly understandable that these issues are of utmost concern, keeping alive the discussions on the broader subject of “arbitrators’ ethics” seems to be desirable.

More recently, some arbitral institutions have taken up the challenge of creating codes of conduct for arbitrators acting under their auspices, most of them in Eastern Europe. Examples include the Court of Arbitration at the Polish Chamber of Commerce, the Permanent Court of Arbitration attached to the Chamber of Commerce and Industry of Slovenia or the Latvian Chamber of Commerce and Industry. While some of these codes are no more than general, moral guidelines, others go further and regulate specific situations which typically arise during an arbitration. Sometimes, these rules of ethics are enforced. For example, under the rules of the Permanent Court of Arbitration attached to the Chamber of Commerce and Industry of Slovenia, an arbitrator violating the code of ethics is explicitly considered to have failed to fulfill his or her duties. On the basis of this, the institution “may” terminate the arbitrator’s mandate either upon request of a party or, in exceptional circumstances, on its own accord. This regime makes the code of ethics more than just a guideline, creating a mechanism to control an arbitrator’s behaviour beyond just the adherence to fundamental principles.

It remains to be seen whether arbitral institutions will follow this path of regulating arbitrators’ conduct in the future. For the moment, the major institutions seem to be satisfied to leave this issue to the international arbitral community. On an international level, there should be no reason not to aim for an updated broad consensus, except, maybe, for the difficulties typically associated with achieving such consensus. After all, the consolidation of an international ethical standard for arbitrators might be a part of the recipe that could help to reduce the number of instances in which parties find themselves having an “arbitration hangover”.  [Source:  Philipp Peters et al, Can I Do This? Arbitrators Ethics, Kluwer Arbitration Blog, Nov. 9, 2010] 

Keystone XL: The Roar of 2012, Now the Yawn of 2013?

"Canada needs pipe – and lots of it..."  -Andrew Potter, managing director, Equity research, CIBC

"[I]t [Keystone XL] looks… well, not irrelevant, but certainly much less important."  -Erica Alini, Macleans

Erica Alini blogged yesterday on the "much less important" Keystone XL pipeline project.  From her post:

Just over a year later, though, it looks… well, not irrelevant, but certainly much less important. “Even if the current Obama administration gives its final assent to the Keystone XL pipeline this will not resolve Canada’s export challenge,” notes a new CIBC report that came out yesterday. And it’s not just because we should really stop depending on a single buyer of our most prized export and diversify by catering to oil-thirsty Asian countries. It’s also because “US energy production is increasing at a pace that few, if any, saw coming,” reads a foreword penned by none other than Jim Prentice.

Instead, pipeline politics will be Pacific Canada's chief cause of concern, writes Alini.  From the excellent BIBC Alini links to in her post:

2013 WILL BE A DEFINING YEAR FOR CANADIAN PIPELINE POLITICS

Pipeline capacity out of western Canada is adequate for the short term, but substantial progress must be made on this front in 2013.  Progress (or lack thereof) will have a big impact on sentiment towards Canadian oil producers. we estimate that pipeline capacity out of the western Canadian sedimentary Basin (wCsB) could effectively be full in the 2014 time frame (our production forecasts are higher than consensus), suggesting little room for error/politicking in bringing on new pipeline capacity. 

There are ~2.9 mmbbl/d of long-haul pipeline proposals on the table (out of western Canada). that sounds like a lot until one considers that two of the largest (the proposed  525,000 bbl/d Gateway and 450,000 bbl/d tmX expansion through BC) face ever-increasing political risk; we assign no better than 50/50 odds that these pipes are built before the end of the decade. the proposed transCanada mainline conversion (estimated ~600,000 bbl/d) is compelling but very early stage and could also provoke some political backlash in Québec.  We also note that the 2.9 mmbbl/d proposed capacity is quickly depleted given our forecast of 100,000 bbl/d per year growth in Canadian conventional oil and 230,000 bbl/d per year growth in oil sands (or ~300,000 bbl/d when blended).  Canada needs pipe – and lots of it – to avoid the opportunity cost of stranding over a million barrels a day of potential crude oil growth.   [Source: A Look to the Future 2013 Edition, CIBC, Page 42]

A Maritime Union for Three Canadian Provinces? A Smart Move, But Don't Hold Your Breath

By Keith Edmund White, Editor-in-Chief

Three Conservative Senators are pushing for New Brunswick, Nova Scotia, and Prince Edward Island to merge, hoping that a merger will ease the fiscal pressures facing this Atlantic trio.

From Aly Thomson's HuffPoCAN: 

The age-old idea of merging the three Maritime provinces has been resurrected despite an overwhelming lack of political will from an array of government levels. A trio of Conservative senators — John Wallace of New Brunswick, Mike Duffy of Prince Edward Island and Stephen Greene of Nova Scotia — are making a plea to consolidate the Maritime provinces, an idea that has intermittently reappeared over the past century. But several political figures — including Nova Scotia Premier Darrell Dexter and Robert Ghiz of P.E.I. — have denounced the idea in recent days, saying the provinces are already working co-operatively. Donald Savoie, Canada research chair in public administration at the University of Moncton, said the fiscal challenges facing the Maritime provinces and an aging population are what have brought the idea to the floor once again.

 The National Post adds a historical wrinkle Atlantic province merger proposals: 

The idea of a Maritime union, however, is not new. It predates Confederation: the Charlottetown Conference in 1864 was supposed to see representatives from the three Maritime colonies discuss a union but it was reworked to accommodate what is now Ontario and Quebec. It became a grander union — Canada — and the more modest idea of a Maritime union never happened. For 1.8 million people we are terribly over-governed. But the bigger part of this is working in concert … to create economic development The idea periodically gets new wind in its sails. In the 1960s a commission studied it, in the ’70s renewed debate over the Constitution sparked union talk anew. In 1996, at a conference on the idea by the Institute of Island Studies [ISS] at the University of Prince Edward, it was referred to as the “always-the-bridesmaid of an idea.”

[Additional note:  Check out ISS's 2008 Land Use Conference here.] 

And there's this 1941 article on a Royal Commission report pushing a Maritime Union and Alberta, Saskatchewan, and Manitoba.

And for those wanting to learn about one of the Atlantic provinces in-depth, check out Donald Savoie’s July 2010 e-publication, Invest More, Innovate More, Trade More, Learn More:  They Way Ahead for Nova Scotia.

Tussle in Parliament!

From The Globe and Mail reports on a tussle "over the finance minister's attendance during a light night budget vote" after hours of being stuck in Parliament over the budget-voting battle.

Full video of the incident can be seen here, courtesy of CTV.

Don't Trust the Arbitrators? Belgium-Based 'Corporate Europe Observatory' Blasts the International Investment Arbitration System

By Keith Edmund White, Editor-in-Chief

Yikes, do we need to shine more light on the the rule-enforcers for international trade?

Corporate Europe Observatory Observatory (CEO) and the Transnational Institute have released a report slamming international arbitration arbitrators:

"Yet rather than acting as fair and neutral intermediaries, it has become clear that the arbitration industry has a vested interest in perpetuating an investment regime that prioritises the rights of investors at the expense of democratically elected national governments and sovereign states. They have built a multimillion-dollar, self-serving industry, dominated by a narrow exclusive elite of law firms and lawyers whose interconnectedness and multiple financial interests raise serious concerns about their commitment to deliver fair and independent judgments."  [Source: Profiting from Injustice: How law firms, arbitrators and financiers are fuelling an investment arbitration boom]

And Rabble.ca blogs on the report, giving a nice backdrop to how important the arbitration system to trade deals and why is has particular relevance for recent Canada trade policy moves.

From Stuart Trew's posting for Rabble.ca:

There's nothing fair or just about the investor-state dispute settlement (ISDS) process inside Canada's free trade deals and Foreign Investment Protection and Promotion Agreements (FIPAs). Actually, according to a new European report, ISDS looks more like a racket, supported by an inner circle of secretive investment lawyers and arbitrators with "a vested interest in perpetuating an investment regime that prioritizes the rights of investors at the expense of democratically elected national governments and sovereign states."

The controversy about a recent FIPA with China continues to burn. Ontario and Quebec have just been hit by two ridiculous NAFTA lawsuits against a ban on fracking and amoratorium on offshore wind developments. And there is news suggesting an investment treaty inside the Canada-EU free trade deal could be much worse than either NAFTA or the China FIPA by expanding the opportunities for European firms to seek compensation from changes to Canadian health, environmental or safety rules that lower profit expectations. 

A Few Elites Really Run Everything?

From page 38 of the report:

And from Page 45:

Where's the Beef?  How Are Arbitrators Regulated?

The report is an interesting read, and so is Trew's article. And the report's Chapter 4 does point out some worrisome trends.  But is this cherry-picking, or the canary in the coalmine? 

This points to be a big omission in both sources:  Is there an analogous system for professional responsibility to U.S. state Board of Bar Examiners to police international arbitrators?  And, if not, how does ethics in international arbitration work?  Without this as a baseline, it's hard to gauge opinions on whether CEO gets it right or wrong.

But, at the very least, I would have to guess that 'the regulation of arbitrators' is not a main topic when nations are coming together and crafting or updating foreign investment treaties or free trade deals.  

Side-Note for All Those Who Had to Take the Multistate Professional Responsibility Exam

And, naturally, as a one-time law student who took Professional Responsibility and had to pass a national exam on lawyerly ethics, I--at least--want to make sure arbitrators who may be dealing with international law, multiple domestic systems of law, and perhaps troubling conflict of interest concerns, have to do what lawyers do so well--passing ethical tests.

Next Steps for Interested Readers

I'm working on getting more information on the subject of Professional Responsibility and International Arbitrators (i.e. getting a one-time professor to do some searching on the side me! [Thanks, Prof!])--my quick Google searches were rather unsatisfying. If it comes quick and easy, I'll update the post.  Otherwise, I'll do some digging--and readers should keep their eye out for a in-depth posting soon!

Naturally, anyone with more information on this should shoot me a line at cuslinexus@gmail.com.

I did find these rough sources that may help out:

International Bar Association materials

United Nations Commission on International Trade Law (UNCITRAL)

Morning News Wrap: "Cyber-NORAD," CAN-U.S. Border and Generic Drugs, Toronto’s Mayor Wins Stay, U.S. Loses Out at WTO, Canada’s Provinces Steal the Show, and More

By Keith Edmund White, Editor-in-Chief

Woodrow Wilson Center’s Canada Institute Talks NORAD and Cyber-Security @ 1 PM.  Cyber-security and protecting critical infrastructure are big (and irksome) issues facing both Canada and the United States.  You can watch the event here.

From WWC: 

Experts expect that cyber attacks from hostile nations and rogue actors will represent one of the most dangerous threats to Canada and the United States in the coming decades. The perils are numerous and the consequences are severe for such an attack. However, there are many measures that both nations can take, individually and collectively, to ensure peace and prosperity, free from the threat of a "cyber Pearl Harbor" disaster. The Canada Institute is pleased to host a distinguished panel to discuss these threats as well as the most effective measures and best practices that the private and public sector actors can use to make both countries more secure. The panel will discuss many issues including: the vulnerability of our linked supply chain system, the role of the private sector in enhancing the national security of the United States and Canada, policy options for creating a better information sharing process while respecting privacy rights, threats to energy production in Canada, and the possibility of creating a “cyber-NORAD” to help deal with our shared threats in the most efficient way possible.

Provincial Politics Take Center Stage.  The Globe and Mail offers an excellent province-by-province political round-up piece.  (Note to self:  copy G&M.).  In short:  Alberta—character politics are beating out attempts for Alberta’s Conservatives to push a national energy policy; British Columbia—the NDP seems on course to capture to provincial parliament; Quebec—between the Charbonneau corruption commission and the PQ’s PR blunders (they tired to remove the Maple Leaf from Quebec’s parliamentary building!), the great fear a of a resurgent PQ and separation anxiety has been allayed.    

Generic Drugs Crashes Canada-U.S. Border Policy Competing Economic, Security, and Public Health Demands.   Prescription Drugs + Border Security + Generics + Health Advocates = Border Policy Nightmare.  From WSJ: 

The White House has alerted police and border agents to prepare for a possible influx of addictive pain drugs from Canada, where cheaper, generic versions of OxyContin will soon become available. U.S. drug czar Gil Kerlikowske also called Canada's health minister last week to discuss the issue and offer assistance to address the wave of prescription-drug abuse sweeping both countries, Mr. Kerlikowske's office said. In an alert to law-enforcement agencies sent Tuesday, the White House Office of National Drug Control Policy warned law enforcement to be on the lookout for cheap copies of OxyContin, which it said could hit the market as soon as next month.

Will Toronto’s Mayor Be Out Next Week, Or Live to Appeal in Office?  Globe and Mail offers real-time court updates.  Update:  Rob Ford won a temporary stay, and will stay in office while his conflict-of-interest case is appealed.

America Given Deadline to Comply With WTO Country-of-Origin Meat-Labeling Rules.  The ever-fast wheels of international trade justice!  Having lost on an meat-labeling case to Canada and Mexico in June, the United States has been given a May 2013 compliance deadline.  The Kansas City Star reports on progressive unease with the WTO tinkering with U.S. labeling requirements: 

“Consumers in the U.S. have been clear: They want dolphin-safe tuna, and if we’re not able to label tuna in the way we want to label it, I think U.S. consumers are going to be pretty angry,” said Democratic Rep. Rick Larsen of Washington state, who likened the situation to having replacement referees decide the outcome of games in the National Football League.In the most recent development, Larsen and 21 other members of Congress sent a letter last month to U.S. Trade Representative Ron Kirk, complaining that the WTO is threatening to turn back the clock to the days when tens of thousands of dolphins were killed each year "in a tuna fishing free-for-all." Critics say the WTO is running roughshod over U.S. laws that govern everything from the environment to food safety and public health.

Joan Crockatt Gets the Hill Times Treatment.  And in a nice ‘slice of life’ piece at The Hill Times, Bea Vongdouangchanh writes on one of Parliament's newest members:  Joan Crockatt.

From The Hill Times: 

Prior to getting elected, Ms. Crockatt was an outspoken pundit who appeared on several political TV panels. Mr. Martin said he hopes the PMO, known for its tight message control, will allow her to continue to be a spokesperson on several issue.  “She’ll be as scripted as any of them [Conservative MPs], I’m sure, but Joan sometimes does freelance a little bit in her commentaries and that’s always a good thing. I hope they make her into a bit of a media presence because she does do good television. But if she takes one misstep, they’ll take her off the tube and never put her back on,” he said, adding that Ms. Crockatt does give a good first impression as an MP. “She’s always walked to her own beat type of thing and suddenly becoming shoe-horned into a borg-like group think is something that’s going to be a new experience for her.” Meanwhile, both the Liberal and Green parties increased their vote share in the byelection in Calgary Centre. The Liberals increased by 15.4 percentage points and Green candidate, Chris Turner, by 14.7 percentage points from 2011 election results. That increase came at the NDP’s expense, with Dan Meades losing 11 percentages points from 2011.

The Toronto Star tells Canada to look to the United States on climate policy.  From the op-ed: 

In other words, nearly three-quarters of U.S. gains will come from tougher regulation to curb emissions, “green” government procurement, grants and loans to promote renewable electricity, and fuel conservation in vehicles and buildings. Pollution taxes, higher oil pricing and emission trading systems will also have an impact. The implications for Canada, and Ontario, are obvious. The Canadian Council of Chief Executives has called for a coherent federal climate policy, including “a clear, nationally consistent carbon price” across the economy. And the National Round Table on the Environment and the Economy has urged more investment in low-carbon innovation, a major growth sector.
Until now the Harper government has adopted a wait-and-see-what-the-U.S.-does attitude, repudiated the Kyoto Protocol as too costly, and failed to come up with a credible plan to make the painful adjustments that will be necessary to develop the oil and gas sector in a more balanced and sustainable fashion, mitigating emissions. As things stand there’s no federal constraint on oilsands pollution, Pembina argues. Now Ontario, too, is falling short. The Americans don’t have all the answers. They remain huge polluters. But they are bending the curve in a better direction. We should aim to do no less.

Canada Political Flash-Back: Stockwell Day and the Conservatives Wilderness Moment

Liberals and NDP, take heart! Not too long ago, Canada's Conservatives were in the wilderness--and the perceived leadership woes of one-time Canadian Alliance leader Stockwell Day paled the criticism now facing Liberal leader-aspirant Justin Trudeau.

For a sense of the evolution of Canada's conservative politics, and the important role Day and others played in it, check out this October 2012 article in the Edmonton Journal.

From TVO's Inside Agenda Blog:

Afternoon Tea: Canada – U.S. News Wrap

By Keith Edmund White, Editor-in-Chief

Enjoy some mid-afternoon tea, and read about Canada and the TPP, Canada & energy, Ottawa's political misfires, just what the Governor-General does, and DHS cracks down on moose poachers.

Canada and the Trans-Pacific Partnership (TPP).  While Canada joined the TPP as an observer in October, but the ongoing 15th round of negotiations is the first to include Canada and Mexico.  The main focus of the talks, according to Western Farm Press, are sanitary and phyto-sanitary standards [or "food safety and animal and plant health measures"]:

Sanitary and phyto-sanitary (SPS) issues will be the real market access determiners in the talks.  Commitments need to go beyond those made under the WTO, often referred to as ‘WTO-plus’.  The USTR may propose new language making SPS disciplines fully enforceable, including those that go beyond WTO rules.  If they would not be enforceable under TPP dispute settlement, they would not be settled at the WTO because they would be stricter than WTO requirements.

But the National Hog Farmer highlights challenges to Canada’s pork subsidization program:

NPPC President R.C. Hunt added: “In reality, we cannot compete on a level playing field. In the upcoming TPP round, you can bet your bottom dollar we will be putting pressure on Canada to do something about its pork subsidy programs.”   

Canada Energy Updates.  Mondaq delivers, per usual, a helpful primer on Canadian energy updates prepared by Doug Black et al from Fraser Milner Casgrain LLP.  I particularly recommend checking out the On the Horizon section that shows fascinating work to both cut the amount of water used in oil sands energy development and lower GHG emissions from CNRL natural gas production.  Two additions worth mentioning: 

• Prime Minister Harper finalized federal loan support, to the tune of $1 billion (CAN), to support a hydro-megaproject in the provinces of Nova Scotia and Newfoundland and Labrador.  Learn more about the project, and Quebec complaints over the loan, from the Winnipeg Free Press.

• Read from Fuel Fix, reporting on a Manhattan Institute event, on why a strong Canada-U.S. energy relationship, along with Mexico, may just turn the energy market on its head.  Notable panelist:  John Prato, Consul General of Canada in New York.

Misfire Alert:  Conservatives Over-Shoot on Trudeau Alberta Comments, Trudeau Returns (Mis-)Fire On Canada’s Long Gun Registry.  Conservatives kinda-sorta-but-not really plan to drag Justin Trudeau before a parliamentary committee because of poorly chosen words on Alberta and the Progressive Conservative Party.  But, don’t worry, while this move was derided by pretty much everyone, Justin Trudeau shot himself in the foot again—over not resurrecting Canada’s long gun registry.

Governor General David Johnston’s “Invisible” But Important Role in Canadian Trade Policy.  The Globe and Mail offered a fantastic piece last week focusing on the evolving role of Canada’s Governor-General.  (For American readers, the Governor General is the acting head of State of Canada).  Not only does this article show the unique nature of Canada’s constitutional monarchy and parliamentary democracy, it shows a fascinating dimension of Canadian foreign policy—and something alien to the American experience.  From the article discussing the preparations for Governor General Johnston’s visit to Mexico, where he and other foreign dignitaries will join in swearing-in festivities for the swearing in of Mexico’s new president, Enrique Pena of the PRI:

But once the ceremony is over, Mr. Johnston’s hard work begins.

He said he intends to start by buttonholing several of the other 75 foreign leaders at the ceremony to discuss bilateral relations. Then, he’ll turn his attention to increasing two-way trade trade and investment. He also hopes to find more ways to share Canadian expertise in mining, justice, policing and governance.

He is travelling with a sizable entourage of senior officials, members of Parliament, business and education representatives, a judge and several ambassadors.

When he gets back, he’ll be reporting, in detail, straight to the prime minister. The two men speak and share ideas regularly, but after a foreign trip, Mr. Johnston has a formal responsibility to check in.

“When I come back, [I need to] be pretty candid and say, ‘Yep, this is going well,’ or, ‘No, this is not going well and here’s where we have to adjust our approaches,’” Mr. Johnston said.

The governor-general’s trip to Latin America should be the beginning of a larger Canadian attempt to revive its relationship with the region, Mr. Robertson said.

New DHS Initiative Catches Canadian Moose-Poachers.  From New Hampshire’s Nashua Telegraph:

Pittsburg [New Hampshire] shares approximately 56 miles of soft border with Canada; along the stretch are hundreds of Canadian hunting shacks and blinds. Some of the shacks are rudimentary, and others resemble elevated camps, fully equipped with propane heaters, cook stoves and sleeping bunks.

Thanks in part to a federal Homeland Security grant titled “Operation Stonegarden,” teams of officers conducted surveillance of several hunting shacks, as well as foot patrols on the border in the upper reaches of Hall Stream.