The Power of Perspectives

The Canadian Bar Association

Yves Faguy

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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The Supreme Court

Words of advice to lawyers from CJ McLachlin

By Yves Faguy June 13, 2017 13 June 2017

Words of advice to lawyers from CJ McLachlin

 

As the Canadian legal community digests the news that our Chief Justice of 17 years will be retiring in December, here’s some friendly advice Beverley McLachlin shared with us during an interview in 2010  for lawyers appearing before her court:

Think about what the court will need, what it will be grappling with. We regard counsel as sources of assistance in deciding the case. Will spending 20 minutes on facts help the court? Not really. We’ve already read the briefs and know the facts. So how can you best help the court? Maybe it’s by going to the most difficult issue you face. I’m not trying to give a prescription for how a case should be argued. It varies from case to case. But sometimes one gets the feeling that counsel are trying to bury the most difficult issue, or escape by it, and hope no one will notice. Well the chances are not good. In the spirit of being helpful to the judges, go to the most difficult part of the issue. Say ‘Your honours, you will be grappling with this issue. It is a difficult issue. This is what I have to say about it, and this is why I believe you should decide that issue in favour of my client.’ Give the judges the ammunition, the cases and the resources they need.

It’s perhaps obvious advice to many advocates out there, but I’m struck at how often lawyers are surprised when I relay her comments.

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