The Power of Perspectives

The Canadian Bar Association

Yves Faguy

CBA Futures

Legal futures round-up

By Yves Faguy July 14, 2017 14 July 2017

Legal futures round-up

 

Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our regular round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

To kick things off, here’s an issue law firms are going to have to seriously address: their security weak spots. A recent study reveals that there is a “widespread lack of cybersecurity in law firms" and reports that  two-thirds of the 200 responding law firms had reported some sort of cyber breach. Also worrisome, many don’t have cybersecurity insurance.

That report was released as news hit that global law firm DLA Piper suffered a major cyber attack -- yet another a reminder that law firms are a choice target for hackers.

Some firms are taking the threat seriously. International immigration services firm Fragomen announced it is opening an immigration technology innovation lab in Pittsburgh, to be staffed with 40-50 professional – none of them lawyers. The office is going to be focused on software development and cybersecurity.

On the technology front, Julie Sobowale explores blockchain and what it means for legal professionals.  Here’s a hint: Smart contracts, which explains why AIG is teaming up with IBM “to develop a "smart" insurance policy that uses blockchain to manage complex international coverage.”

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Arbitration

Litigation funding: CETA’s disclosure requirements

By Yves Faguy July 11, 2017 11 July 2017

Litigation funding: CETA’s disclosure requirements

 

There is still resistance in some jurisdictions, such as Ireland, to third-party litigation finance. But the market, globally, continues to make headway, particularly as Hong Kong has now allowed the practice in arbitration and mediation matters.

What sets Hong Kong apart from other jurisdictions, though, is that it has imposed requirements on funded parties to disclose the funding arrangement, as well as the identity of the third-party funder, all with a view to addressing concerns about conflicts of interest between the various parties involved.

In the arbitration context there is currently no explicit requirement for litigants to disclose their funding arrangements in Canada  (though in Ontario a court may force the disclosure of such an arrangement to the opposing party in the class action context).

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Administrative law

Paul Daly on getting lost in description

By Yves Faguy July 4, 2017 4 July 2017

Paul Daly on getting lost in description

 

In the latest volume of the Canadian Bar Review, which examines the legacy of the former Supreme Court Justice Louis LeBel, Paul Daly explores the limits of language in administrative law, and LeBel’s role in clarifying our understanding of judicial review.  CBA National sat down with the senior lecturer in public law at the University of Cambridge to ask him about why descriptive language in law can be more of burden than help.

CBA National: Why is administrative law such a difficult subject?

Paul Daly: Administrative law is tricky because it is a body of general principles that exist in the abstract and then they have to be applied to different substantive areas of law, which is a challenge. So, you have to apply it to employment law, environmental law, energy law, municipal law, immigration law, a whole host of areas which they themselves have very detailed rules and regulations. Already that gives you a degree of complexity. Then add to this the fact that principles of administrative law are quite recent and the area has undergone a radical reformulation in the last 50 years. And in Canada it's even more complicated because in trying to work through the general principles of administrative law, the Supreme Court of Canada made numerous U-turns and has created a body of case law that is difficult to navigate.

N: So what do you mean when you say that administrative jurists must appreciate the limits of language in reaching more accurate decisions?

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Conflicts of law

Home trade: A free-trading nation comes of age

By Yves Faguy June 16, 2017 16 June 2017

Home trade: A free-trading nation comes of age

 

In the last six months, we’ve seen the United States drop the Trans-Pacific Partnership, then threaten to pull out of NAFTA, and Britain trigger its formal divorce from the European Union.

But as the world flirts with rising protectionism, Canada carries on as a free-trading nation in a hurry, pursuing ambitious talks far and wide; with China, India, Japan and now the Mercosur trading bloc. It has agreed to reopen NAFTA in the hopes of saving it. Fingers are still crossed on full ratification of the Comprehensive Economic and Trade Agreement with Europe. Informal discussions are taking place with Britain — still barred from direct talks until Brexit is completed. In May, Canada hosted its jilted TPP partners in an effort to salvage part of that deal. And on July 1st, new free trade rules come into force between the provinces under the Canadian Free Trade Agreement.

Save perhaps for that last bit, none of these efforts are controversial in the least due to this country’s broad acceptance that trade and globalism are the key to Canada’s economic well-being.

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Q&A

Benjamin Alarie on intuition versus the data

By Yves Faguy June 16, 2017 16 June 2017

Benjamin Alarie on intuition versus the data

 

Over the last few years, we’ve seen artificial intelligence make inroads into every sector of the economy, from health care and education to finance and law. At the CCCA’s National Conference in April, Yves Faguy interviewed Benjamin Alarie, CEO of Blue J Legal, which uses machine learning to help predict tax case outcomes, about the promise that AI holds for law firms and possible pitfalls.

CBA National: There are quite a few legal outfits, here in Canada, moving into the AI space. How do you explain that?

Benjamin Alarie: There are a few different reasons why it’s happening now. One is that legal research for a very long time was purely analog. And then we saw the advent of digital in legal research and now we’re seeing the advent of computational legal research where you’re using applied mathematics to extract information from the digital content. And what facilitates that is the computing power that’s now available and the algorithms that allow us to harness that power and engage in computational legal research.

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