The Power of Perspectives

The Canadian Bar Association

Doug Beazley

Cover story

Who owns space?

By Doug Beazley December 7, 2016 7 December 2016

Who owns space?

 

When Canadian-American tech mogul Elon Musk stood before an International Astronautical Congress audience in Mexico in September to roll out a wildly ambitious plan to start ferrying human settlers to Mars over the next decade or so, online comment boards instantly lit up with armchair engineers arguing over whether the plan could actually work.

The tiny international community of specialists in space law, on the other hand, zeroed in on a different question – whether what Musk was planning would be legal.

Sounds academic, right? It’s not – not any more. Fifty years after the United Nations General Assembly adopted the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space – better known as the ‘Outer Space Treaty’ – private enterprise has started pushing forward into the vacuum left by the slow collapse of government-sponsored manned space exploration following the end of the Cold War. Musk’s grand vision notwithstanding, private enterprise’s interest in space is commercial, not scientific: There are vast sums of money to be made up there – from mining, power generation and tourism, for starters – and no shortage of entrepreneurs looking to plant their flag in extraterrestrial soil.

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Tax

Smackdown: Our tax-avoidance heritage meets political pressure

By Doug Beazley September 2, 2016 2 September 2016

 

“Taxes,” said the great American jurist Oliver Wendell Holmes Jr., “are what we pay for civilized society.” Paying what you owe is a basic act of citizenship — but in every national culture with ties to Westminster, there has long been tension between a government’s right to collect tax and a citizen’s right to pay as little as (legally) possible.

In Commonwealth countries like Canada, the legal status of tax avoidance took root in the 1936 Duke of Westminster ruling: “Every man is entitled, if he can, to order his affairs so that the tax … is less than it otherwise would be.” Minimizing taxation is part of Canada’s legal tradition. But politics is starting to confront tradition.

The public image of the international financial services sector is in a slump. Starting with the 2007-08 financial crisis and intensifying with the release of the Panama Papers this past spring, a hostile political climate driven by stories of wealthy individuals and corporations paying very little tax has been pushing many governments to act. So when the multinational accounting firm KPMG made news last year with a tax-avoidance program based in the Isle of Man — one that, according to the CBC, the Canada Revenue Agency itself described as a “sham” meant to deceive government auditors — Canadian politicians were already feeling the pressure to make high-profile gestures against those seen to be flouting the spirit of the law.

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Immigration

Temporary foreign workers rules: In need of a rethink

By Doug Beazley May 27, 2016 27 May 2016

Temporary foreign workers rules: In need of a rethink

 

Every lawyer working in the immigration field has a story to tell about the Temporary Foreign Worker program and the Labour Market Impact Assessment system. Few seem to end happily.

“I represented a medical clinic,” says Barbara Jo Caruso, co-founder of the Toronto-based Corporate Immigration law firm. The clinic had a specialist — an immigrant — employed on a work permit. The clinic’s owner-operator wanted to keep him, so he applied for a Labour Market Impact Assessment — the federal government’s tool for ensuring qualified Canadians get first crack at any job openings.

The owner-operator, says Caruso, jumped every hurdle in the application process, but mistakenly left some minor pieces of information off the job ad posted on his website — a tiny error that caused his entire application to be turned down.

“So this professional’s work permit expired, his patients had to go and find another clinic and his employer had to re-advertise everything,” says Caruso. “The employer was audited. He lost seven months. He lost patients, his patients lost the services of a professional they’d grown to depend on.”

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Climate change

Reporting standards for climate change up in the air

By Doug Beazley March 1, 2016 1 March 2016

Reporting standards for climate change up in the air

Like the hangover that follows the night before, media coverage of the Paris COP 21 climate accord in late 2015 seemed to shift suddenly from euphoria to pessimism, as critics turned their attention from the scope of the deal to its limits.

“Don’t worry,” one U.S.-based NGO tweeted on Dec. 14. “The Paris climate deal is non-binding — and ergo, toothless.”

Not entirely. It’s true that — unlike the Kyoto accord — the Paris accord includes no penalties for countries that fail to meet their commitments to reduce carbon emissions. But Kyoto’s penalties were effectively toothless as well; the Paris accord is a political document, and the mechanism, says Stepan Wood, professor of environmental law at Osgoode Hall, is “naming and shaming.”

Enforcement under Kyoto was top-down. If the Paris targets are to succeed where Kyoto failed, the approach must be bottom-up — which is where the courts come in.

Could private citizens and NGOs use the courts to hold governments and corporations to account for their carbon footprints? It’s happening already. Back in June the Hague District Court ruled in favour of the Urgenda Foundation in finding that the Dutch government had violated its duty of care to the environment by failing to take adequate steps to reduce emissions; it ordered the government to cut national emissions at least 25 per cent below 1990 levels. Three months later, the high court in Lahore held Pakistan liable for failing to implement its climate change policy.

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Cover

Investors vs. The State

By Doug Beazley December 10, 2015 10 December 2015

Investors vs. The State

It’s a system that has evolved to respond to the legal challenges inherent to the global trade environment.  But as trade agreements continue to proliferate and take hold, the treaty process that manages conflicts between states and foreign investors is, after decades of operating as an obscure and largely confidential arrangement between lawyers, emerging as a global political flashpoint. Growing unease about the perceived flaws of investor-state dispute settlement, or ISDS, is now emboldening critics calling for reform.

Much of the current brawl started with the Trans-Pacific Partnership negotiations — and an advanced working draft of the trade agreement obtained by Wikileaks and published by the New York Times in early 2015. (The TPP negotiations ended in an agreement-in-principle in early October. A draft of the TPP agreement released by New Zealand in early November shows an ISDS system quite similar to those in other major trade deals, with three-person arbitral panels holding public hearings and delivering non-punitive monetary or restitution awards.)

The draft laid out the TPP’s approach to ISDS, a system by which foreign investors can sue states over government decisions that undermine their investments, through ad-hoc arbitration panels composed of lawyers — not judges. The working draft, dated Jan. 20, 2015, reflects the fact that negotiators expected the inclusion of ISDS to be controversial; the draft’s cover mandates that the ISDS chapter remain classified until four years after the TPP comes into force.

They expected controversy and they got it — from both directions. In Washington, prominent Democrats lined up to attack the ISDS provision as an assault on state sovereignty. “This continues the great American tradition of corporations writing trade agreements, sharing them with almost nobody, so often at the expense of consumers, public health and workers,” Senator Sherrod Brown of Ohio told the Times. Canadians were already talking about ISDS in connection with another trade deal – the Canada-Europe Comprehensive Economic and Trade Agreement – when the TPP draft was published.  The NDP’s Tom Mulcair, then leader of the Official Opposition, told a French think-tank in late 2014 that the European Union should not enact CETA if it includes the ISDS mechanism. “Europe shouldn’t let itself be locked into an agreement that contains such a provision, especially since it’ll serve as the basis for an eventual agreement with the United States,” he said.

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