The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Investor-State disputes

A more perfect international investor court?

By Yves Faguy July 9, 2018 9 July 2018

A more perfect international investor court?

Over the past few years, the European Commission (EC) has been pushing to replace the traditional arbitration framework for investor-state disputes (ISDS) with a new investment court system – or ICS –run by independent judges, bound by strict conflict-of-interest rules, and operating more transparently.  It’s precisely what Canada and the EU agreed to when they concluded their free trade agreement, CETA. The  push is part of an effort to respond to criticism that the traditional ISDS model of using arbitral tribunals to solve disputes is overly favourable to foreign investors at the expense of states’ interests.  What’s more ISDS allows investors to challenge domestic regulations and policies before private arbitration courts that are mostly out of reach of regular litigants. CETA’s investment court system also provides for an appellate body to review decisions. The hope here is that this will help produce more consistency in treaty interpretation.

On these points, in an article to be published in The University of Western Australia Law Review, Kyle Dickson-Smith looks at how investor-state dispute claims in developed countries encroach on the work of domestic courts which, in turn, judge the appropriateness of the arbitral tribunal’s findings:

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CBA Futures

Legal futures round-up

By Yves Faguy July 4, 2018 4 July 2018

Legal futures round-up

 

Summer heat be damned. Time for a quick round-up of notable trends and developments and views that highlight innovation in the legal industry.

Out of Quebec is news that the CyberJustice Laboratory at Université de Montréal is embarking on a major international research project, funded by the Social Sciences and Humanities Research Council of Canada, on AI and justice. Over the next six years, 45 researchers will study how AI can help improve access to justice. Leading the project is Professor Karim Benyekhlef, the director of the Laboratory. “At first, I think AI is going to be used for low-intensity disputes,” says Benyekhlef. “It’s useful for users of the justice system who want to get an idea of whether they have a case that’s worth pursuing or not.”

Speaking of which, Thomson Reuters does a deep dive into the alternative legal service providers market. Three spoiler takeaways: The decision by law firms to use an ALSP is no longer just about cost; they want specialized expertise.  They’re coming around to viewing ALSPs as collaborators of sorts, not just the competition. And AI will continue to fuel the trend.

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Q&A

Q&A with Mark A. Cohen: People skills for the future

By Yves Faguy June 18, 2018 18 June 2018

Q&A with Mark A. Cohen: People skills for the future

 

Even as automation takes over, chipping away at our sense of security, people skills will command a high price in the battle for talent, says Mark A. Cohen, a legal strategist and CEO of Legal Mosaic. CBA National caught up with Cohen after his keynote speech at the 2018 CCCA National Conference in Toronto to ask him how law firms should go about focusing their efforts on hiring the right people.

CBA National You’ve said that just knowing the law won’t cut it anymore. It’s people skills that matter again. Why?

Mark A. Cohen Most people are fearful that machines are going to replace people or marginalize their roles. But as technology becomes more and more widely deployed, one of the things that will separate successful professionals from machines is their EQ or people skills. Law has always been, in my opinion, a persuasion game. And now, those with people skills will be able to use technology to be more persuasive. Those who will succeed are the leaders who will be able to machine harvest data, understand it, and communicate it effectively to other people so that they act on it successfully. 

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Trade

What it will take to get NAFTA negotiations back on track

By Yves Faguy June 14, 2018 14 June 2018

 

Harsh language rarely helps the cause. Emphasizing a more positive intention is generally the best way to get parties to agree to a deal.  That was the subtext of the message delivered yesterday by Public Safety Minister Ralph Goodale who, in an interview on a Fox News business, made the case that Canada still wants to make a deal to update the North American Free Trade Agreement. 

It didn’t go unnoticed that Goodale squeezed in some heartfelt compliments to U.S. President Donald Trump for reaching an agreement with North Korean leader Kim Jong Un in Singapore this week.

Hopefully, the change in tone will get Canada and the United States back on track to find a resolution to their fraying trade relations after the Quebec G7 Summit, says Clifford Sosnow, a lawyer and partner at Fasken Martineau DuMoulin, based in Ottawa and Toronto.

The other major challenge, he says, is figuring out what the end game is for the Trump administration.

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SCC: Correctional Service's psychological assessment tools may be culturally biased

By Yves Faguy June 14, 2018 14 June 2018

SCC: Correctional Service's psychological assessment tools may be culturally biased

The Supreme Court of Canada has ruled in a 7-2 decision that the Correctional Service of Canada failed to take reasonable steps to ensure the accuracy of psychological assessment tools for Indigenous offenders. The assessment tools have been used in a number of situations, from helping determine eligibility for parole and access to rehabilitation programs.

The ruling concludes a challenge brought forward by Jeffrey Ewert, a métis offender in his fifties who has spent more than 30 years in federal penitentiaries serving two life sentences for second degree murder and attempted murder. For much of that time, the CSC has relied on risk assessment scores to discourage Ewert from accessing rehabilitative opportunities, even though he had become eligible for parole over 20 years ago.

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