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Did Canada get steamrolled by China?

By Yves Faguy October 9 2012 9 October 2012

    Paul Wells commits journalism and reads the fine print of the Foreign Investment Promotion and Protection Agreement (FIPA) between Canada and China, which will soon come into force:

    Most of the news coverage about Canada-China investment has centred on Chinese attempts to buy into Canada, especially on the Nexxen deal [sic]. But Canadians are also trying to buy into China and they have had a hard time of it. That’s what was making Harper nervous in Vancouver (and former Harper cabinet minister Jim Prentice borderline apoplectic). And the vaunted FIPA provides prospective Canadian investors (of which there are many) very limited protection compared to what it provides existing Canadian investors (of which there aren’t enough).

    Why is that? Well, because it seems that Canada abandoned its own model for FIPAs and agreed to go along with China’s preferred wording for the national treatment clause, which normally would give foreign investors the same rights in the host country as those of its own investors.

    So in its current wording, that clause excludes those Canadian investors still trying to establish themselves in China. And vice versa, mind you, which is why I can’t see how this would pose Canada a problem if it would want to block a takeover similar to CNOOC’s bid for Nexen. Still, Canadian investors not already established in China may find it difficult to get around new Chinese regulations aimed at protecting national and economic security, not to mention a number of industry-specific standards that favour domestic firms.

    But what should worry advocates of transparency are the provisions of the FIPA dealing with dispute resolution. Again, Wells drills down to the specifics:

    Here again, the language in the final treaty is very restrictive. “The treaty does not require that arbitration of disputes be done in a manner that is open to the media and the public,” Luke Eric Peterson told me. He’s a reporter in New York City with this investment arbitration newsletter. ”This is a huge concern,” he added — especially because the arbitration process is designed to supplant the previous forum for such disputes, which is the courts. “Journalists that want to cover this beat in future may be deeply chagrined to discover that they are barred from arbitration hearings and may not be able to access the ‘court file’ related to major disputes — unless the states decide that it is in the ‘public interest’ to allow such access."  So when massive commercial disputes are arbitrated under this FIPA, they will be arbitrated out of public view unless both Canada and China agree. Again, this is a departure from Canadian practice and an embrace of Chinese practice.

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    Public inquiry witness protection?

    By Yves Faguy October 5 2012 5 October 2012

      Catherine Solyom at The Gazette wonders whether Lino Zambito of Charbonneau Commission fame is immune from prosecution in court about his own involvement in the system of collusion that ruled Montreal’s construction industry for so many years:


      Presumably, he believes his testimony before the Commission cannot be used against him in court. But while that may be true for criminal proceedings, it is not clear whether it holds true for civil suits — including those for defamation and slander.

      In June, when former police chief Jacques Duchesneau was testifying, Sylvain Lussier, the lead counsel for the Charbonneau Commission, at first said testimony before the commission could be used in civil suits. Then he changed his mind. He and his team had examined the relevant laws, the Commission heard, and determined that yes, witnesses are also protected against civil suits.

      But as Solyom points out, here’s what Lussier told Luis Millán in the Lawyer’s Weekly, regarding a claim in restitution he launched representing the Canadian government against defendants for their role in the sponsorship scandal:

      "I myself used what was said in the Gomery Commission against civil defendants and was vindicated by Justice Hébert,” said Lussier, adding that in his own opinion s. 13 of the Canadian Charter does not grant protection against self-incrimination in civil proceedings. Though on less solid ground because of the absence of precedence, Lussier also believes that witnesses who slander while providing testimony before a commission of inquiry cannot hide behind the shield of immunity.

      And finally there’s this other quote from Lussier in Millán’s reporting:

      “You can sue for defamation for slanderous procedures. Lawyers and clients do engage their liability if they write defamatory procedures. The fact that it’s in court does not grant immunity from defamation suits. So why would something slanderous being said before a commission (of inquiry) be immune from ulterior prosecution.

      So it seems an admission of responsibility made before a commission of inquiry can be used in civil proceedings (in Quebec at least). Which explains why the Commission has ordered a publication ban on the remainder of Zambito’s continuing testimony.

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      Mobile marketing for lawyers

      By Yves Faguy October 4 2012 4 October 2012

        Here are some striking figures from Pew Research Center's Project for Excellence in Journalism - most notably, how quickly people are embracing smartphones and tablets:

        Nearly a quarter of U.S. adults, 22%, now own a tablet device-double the number from a year earlier. Another 3% of adults regularly use a tablet owned by someone else in their home. And nearly a quarter of those who don't have a tablet, 23%, plan to get one in the next six months. Even more U.S. adults (44%) have smartphones, according to the survey, up from 35% in May 2011.

        And what’s encouraging for content providers (that includes lawyers, people) is this:

        News remains an important part of what people do on their mobile devices-64% of tablet owners and 62% of smartphone owners say they use the devices for news at least weekly, tying news statistically with other popular activities such email and playing games on tablets and behind only email on smartphones (not including talking on the phone). This means fully a third of all U.S. adults now get news on a mobile device at least once a week.

        Mobile users, moreover, are not just checking headlines on their devices, although nearly all use the devices for the latest new updates. Many also are reading longer news stories - 73% of adults who consume news on their tablet read in-depth articles at least sometimes, including 19% who do so daily. Fully 61% of smartphone news consumers at least sometimes read longer stories, 11% regularly.

        This report is obviously great news for the media industry. But the rapidly changing habits of consumers of content have huge implications for lawyers and law firms eager to embrace social media and market themselves online.

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        Foreign takeovers: When to say no

        By Yves Faguy October 2 2012 2 October 2012

          Stephen Gordon doesn't see many reasons why Ottawa should reject a foreign takeover.


          Foreign ownership became an issue some fifty years ago, and there were credible reasons for concern. Foreign-owned branch plants tended to be less productive and less interested in innovation. But the problem wasn’t foreign ownership per se, it was the fact that the raison d’être for these branch plants was the high tariff wall protecting Canadian industry. Firms with nothing to fear from foreign competition have little reason to be concerned with low productivity.

          Things are very different in the post-NAFTA world.This Statistics Canada study (opens pdf) finds that:

          foreign-controlled plants are more productive, more innovative, more technology intensive, pay higher wages and use more skilled workers… [Multinational enterprises (MNEs)] have accounted for a disproportionately large share of productivity growth in the last two decades. Finally, we find robust evidence for productivity spillovers from foreign-controlled plants to domestic-controlled plants arising from increased competition and greater use of new technologies among domestic plants.

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          What does "net benefit" mean?

          By Yves Faguy September 29 2012 29 September 2012

            Tom Flanagan urges the federal government to approve the CNOOC-Nexen deal before sorting out the "net benefit" rule. Rejecting it would be damaging to Canada's reputation:

            After more than 20 years in which neither Progressive Conservative nor Liberal governments rejected any foreign acquisitions, this would be the third rejection in five years by this Conservative government.

            Relations with China would certainly be set back, but the damage would also be wider. It would signal to international investors that any large acquisition, no matter how carefully rationalized in economic terms, can be blocked on the basis of an unpredictable variety of political considerations. Uncertainty means risk, and risk deters investment.


             

            Jeffrey Simpson imagines the outcome if the roles were reversed:
             

            Canada, however, is strong in energy, telecommunications, automobiles, aviation and metals – all products that China considers largely off limits to foreigners. Any free-trade deal for Canada would have to involve access in these sectors. It would also need to provide guarantees for patent protection (intellectual property) because Chinese firms are notorious (let’s be blunt here) for stealing patented technology and adapting it to their own companies. And the rule of law protecting private property is wobbly in China. As for the new investment treaty between Canada and China, only time will tell whether it’ll resolve these challenges. It’s worth noting that the protections contained in the agreement apply only to companies already operating in China.

            Free-trade negotiations, in principle, are not to be dismissed lightly. The structure of the Chinese economy, the erratic respect for the rules of property law, and the off-limits areas of the Chinese economy mean that any talks would be long and laborious, with no guarantee that the Chinese government would agree to rules found in free-trade deals that Canada has signed with other countries.

            The bid for Nexen is now being reviewed by the Harper government, with the nebulous term “net benefit” before a takeover is approved still unclear. If one part of the “net benefit” became “Can we do there what you’re proposing to do here?” the takeover would never be approved. Quite likely, the government will eventually approve the deal, but the condition of reciprocity won’t be there.

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            A fresh new look for fall

            By Beverley Spencer September 28 2012 28 September 2012

              September might be the beginning of fall, but somehow it always feels like the start of a new year. That’s probably because September brings the start of school and the transition from the laid-back days of summer (if you’re lucky) to the more disciplined rigour of business as usual.
               
              At National, we’re looking forward to the start of a brand new year, but it won’t be business as usual. First of all, We’re proud to bring you nationalmagazine.ca. In addition to providing online access to our regular issues, the website will offer thought-provoking blogs and videos from new voices, power players and thought leaders across the legal profession. We’re looking forward to building on our tradition of editorial excellence and interacting with readers in a new way.
               
              In tandem with the development of our website, we’re also giving our magazine a fresh new look. The rebranding will tie together both products, and also respond to what we’ve heard from our readers about how they currently use and enjoy the magazine.
               
              Last September, the CBA and Rogers Connect Market Research Group conducted a readership survey, and your feedback was top-of-mind when we sat down with art director Tony Delitala to consider our new look. We thought about how to seamlessly integrate our French and English content; how to freshen our overall appearance; and how to tailor our editorial to meet your needs. As a result, you’ll still find your favourites, including CBA PracticeLink, Horizons and our in-depth feature articles, but knowing that your time is valuable we’ll be using more graphics and alternative story forms so you can quickly get to the heart of what matters. Other stories take time to tell so we’ll still devote space to examine worthy topics in detail. We’ll also continue to rely on high-quality illustrations and photography to enhance your reading experience.
               
              You told us that National magazine is a valuable re­source. Sixty per cent of those surveyed read the magazine within the week it arrives; readers spend a median time of 20 minutes with it. That’s a significant commitment, but we’d like to do even better. So whether you’re a sole practitioner in Kamloops or a partner with Norton Rose in Montreal, we promise that you’ll find something of interest to your practice in every issue, and that your time will be well-spent. With the new website, there are greater opportunities for interaction so you can let us know how we’re doing.

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              Welcome to National's blog section

              By Yves Faguy September 21 2012 21 September 2012

                Well, here we are. I’m not quite sure how to kick things off except to say welcome to National Magazine’s new home online and to this blog. Our aim in this space is to cover legal affairs in a more engaging way for our readers. So please, feel free to comment and share your thoughts. We’re looking for a lively — and respectful — dialogue among people of differing points of view. As things stand, our policy allows for only CBA members to leave comments. But we want to hear from outside the CBA community and will be more than happy to post emails that correct inaccuracies, offer dissenting opinions or have substantive things to say. We look forward to hearing from you.

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                Walking the talk

                By Robert Brun September 12 2012 12 September 2012

                  One of the things I like best about the CBA is our ability to match our words with action. It’s easy to talk about why access to justice is so important or how the rule of law is the foundation of a democratic society; it’s much harder to work to promote and protect these principles in concrete ways.

                  That’s why I’m so excited about a trio of CBA initiatives that were announced last month at the Canadian Legal Conference in Vancouver.  As the only national voice of the Canadian legal profession, we are taking a leadership role in three projects dealing with some of the most pressing issues facing the profession today. Together, they represent the essence of our mission as “the determined advocate of the profession and champion of the rule of law.”

                  Our “Measuring Diversity” project is well under way. Over the past year, the CBA Equality Committee has worked on an online guide to help law firms collect diversity measurements. (For details, visit cba.org/CBA/equity/diversity)  It’s one way to ensure that we engage a diverse and inclusive talent pool that reflects the communities we serve. We are also launching an inquiry into the future of legal practice that will go beyond identifying the trends which are transforming the profession; it will develop tools and resources to help lawyers adapt to change and flourish in their practice.

                  Perhaps our most ambitious project is the CBA Envisioning Equal Justice Project. For years, the CBA has been part of the chorus of voices calling for a fair and viable system of delivering legal services that ensures no one is left behind. The statistics are discouraging: estimates show that in many parts of the country, close to three-quarters of litigants in family courts are unrepresented and an alarming number of unrepresented accused are being sentenced to prison terms. The system is also plagued by duplication and hamstrung by shortfalls in funding.

                  Led by the CBA’s Access to Justice Committee chaired by Melina Buckley, this project is designed to craft options for reform that address major obstacles in ensuring equal access to justice. It will develop a strategic framework for access to justice in Canada, carry out research and consultations and develop mechanisms to better co-ordinate access to justice efforts. A national summit will be held next spring.

                  CBA has a long tradition of advocating on behalf of both the public and the profession. These latest initiatives also show we understand the importance of walking the talk.

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                  Leading through consensus

                  By Robert Brun August 28 2012 28 August 2012

                    I am not exaggerating when I say that joining the Canadian Bar Association was one of the most important decisions of my life. It was one of three life-changing choices that I made in 1975 — the other two being my decisions to pursue a legal career and to marry my wonderful wife — that have enormously influenced how my life has unfolded. 

                    When I first entered the legal profession, the culture of law was a mystery to me. I had no family members or close friends who were lawyers and joining the CBA enabled me to meet people who could assist me in navigating this foreign land. My involvement enriched both my professional and personal lives, and I became eager to give back. 

                    In 2003-04, I was honoured to serve as president of the B.C. Branch of the CBA. I also have served as a member of the national Task Force on Conflicts of Interest and as the B.C. Branch appointee to the national Justice Review Task Force. Now, as president, I look forward to the opportunity to encourage others to reap the benefits of CBA membership.

                    The CBA plays an important public role: It brings the crucial rule of law perspective to the debate regarding how we, as a society, should govern and be governed. We defend protections developed over centuries for individual liberties. We speak out on the importance of an independent profession and judiciary. Also, the CBA is embarking on a critical analysis of our justice system to promote greater access to justice and legal services for the average Canadian. 

                    As lawyers, we are in a unique position to anticipate the practical impacts of law reform in Canada and internationally. As your president, I am proud to continue in the CBA’s great tradition of bringing this important perspective to the public discourse. 

                    The CBA’s work as a whole is valuable — but it is also expensive. It is why membership retention and enhancement will be a priority of mine this coming year. Without a robust membership, our moral authority and economic ability to speak out is lessened.

                    I plan to lead through consensus to help the CBA reach its strategic objectives. It is a leadership style that has served me well, both in the practice of law and as a volunteer, and I believe it is the best and only way to achieve effective outcomes in an organization like the CBA.

                    I look forward to meeting with many of you as I embark on this new challenge.

                    Send your comments to cbapres@cba.org.

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                    The common touch

                    By Beverley Spencer August 28 2012 28 August 2012

                      Alberta Premier Alison Redford speaks with real conviction about the importance of bringing citizens into public policy discussions. That’s not surprising considering her background: long before she entered politics, she worked in communities around the world on issues that touch the everyday lives of ordinary people. What might be unusual is how that has shaped her approach to politics.

                      Her international development work took her to South Africa where she managed a constitutional development project for the CBA in partnership with an organization involved in test-case litigation on issues ranging from employee rights to the right to antiretroviral HIV drugs for pregnant women. Later, she travelled to Afghanistan where she helped organize the first parliamentary elections. She was involved in writing the election act, educating voters and negotiating who could run for office (although convincing the cabinet that people with private standing armies should be disqualified was a tough sell since some members actually had their own army.)

                      As Redford explains, Afghanistan was a lesson in the very fundamentals of the democratic process. She remembers travelling to a small school in Helmand Province to speak to women about voting, and being struck by two things: first, that the women clearly thought it was important because they brought their daughters; and second, that they did not know what a vote was. Her explanation — that voting means having a voice in government — got her thinking about how people connect to government and whether it was time to take a seat at the decision-making table herself.

                      When I met Redford in Calgary in June, she was fresh from stunning pollsters with her unexpected electoral victory over Wild Rose candidate Danielle Smith. And she was still thinking about people’s connection to government and the importance of bringing voters into the conversation. 

                      “We really have to bring politics back to the kitchen table and to the school boards and to the community so people feel that they can make a difference,” she said. She connects the dots between low voter turnout and people’s loss of connection to government, pointing out that voter turnout jumped from 40 per cent in 2008 to 59 per cent in the last Alberta election “because we took the political debate to the public.”

                      In her opinion, good political leadership defines its values and sets the long-term direction, then seeks public input on how to get there. It’s not politics as usual — but then it’s not supposed to be.

                      — Send your comments to national@cba.org.

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                      Feeling the Pressure? You're not alone.

                      By Beverley Spencer August 28 2012 28 August 2012

                        After I was accepted to law school, one of my newspaper colleagues made a point of sending me stories about lawyers in crisis. The common thread was that lawyers suffer high rates of depression and addiction and as a professional group are vulnerable to suicide. It was a reminder — and perhaps a warning — that the profession has a dark side.

                        It turns out these were not apocryphal tales. It was true 20 years ago and it’s true today: lawyers and law students face a disproportionately higher risk of depression than the general population. In fact, one in three will experience a major mood disorder or problem with addiction at school or work during their careers. These are intelligent, capable, high-achieving individuals. And yet they struggle, often in silence, unwilling to reveal the depth of their pain. Why?

                        Environment and personality both play a role, according to researchers. Law school is competitive and “notorious for deflating the self-image and sense of competence of its students,” says Dr. Lawrence Krieger of Florida State University College of Law. Other studies have revealed that law attracts individuals with certain personality traits. Dr. Larry Richard, a U.S. psychologist and former trial lawyer, found that when tested for resilience, 90 per cent of lawyers consistently scored in the bottom half of the general population, making the majority more sensitive to criticism, setbacks and rejections and quicker to become defensive. Many find it hard to strike a work-life balance and they deal with stress in unhealthy ways.

                        Fortunately, the profession has recognized this problem and is ready to help. The CBA’s Legal Profession Assistance Conference (LPAC) helps lawyers, judges, law students and their families with personal, emotional, health and lifestyle issues. Confidential help and professional referrals are available through LPAC’s 24/7 Helpline at 1-800-667-5722. LPAC also develops programs and liaises with law assistance program across the country.

                        Don’t be afraid to reach out. In Ontario alone, the Ontario Lawyers’ Assistance program is working with about 1,200 individuals. About 42 per cent of cases involve mental health issues, including depression, anxiety and debilitating stress, according to the 2010 annual report.

                        There is no need to suffer in silence and no shame in asking for help. In fact, making the decision to seek help can be the most difficult part of the process. But once you do, you’ll be on a path to a much brighter future.

                        All you have to do is ask. 

                        — Send your comments to national@cba.org.

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                        Moving in new directions

                        By Beverley Spencer June 1 2012 1 June 2012

                          Your experience with National magazine is about to change — for the better.

                          The National team is preparing to launch an exciting new online presence later this year with the introduction of nationalmagazine.ca. It’s still the National that you enjoy eight times a year, but with a twist. You’ll find new content in the form of blogs and videos, fresh insights and a greater opportunity to interact with us.

                          Senior editor Yves Faguy has been instrumental in the rollout of this project. “Our objective is to create a more dynamic forum online for Canadian professionals interested in the practise and substance of law by engaging readers and members. We’ll be offering them original, thoughtful content, from long-form legal journalism to thought-provoking blogs and video,” he says. That’s what makes this initiative so exciting: it’s an opportunity to build on the quality content that National generates and to engage readers on a whole new level.

                          The online world offers the opportunity to deliver content to readers on a variety of platforms and engage them in a new way. Do you have five minutes? Check out a video: You’ll find excerpts of our conversations with power players and thought leaders in the legal profession. Do you have 10 minutes? Read our picks of the top newsworthy legal stories of the day. Do you have an opinion about something you’ve read? Post a comment on a blog. We welcome the opportunity to start a conversation.

                          However, our print publication will remain central to everything we do. The website is intended to complement the magazine, not replace it. There are plenty of readers who still enjoy sitting down with a glossy magazine for a good read and we will continue to produce stories that offer a nuanced view of complicated issues. The website offers the opportunity to build on this legacy and interact with you in a new way. Watch for more details.

                          Speaking of editorial excellence, National has received seven nominations for the KRW Business Press Awards. Our finalists were selected from a field of 600 entries from 57 business-to-business magazines across Canada. The winners will be announced in June.

                          — Send your comments to national@cba.org.


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