The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Legal innovation

Why law firms are paying attention to blockchain

By Yves Faguy August 30, 2017 30 August 2017

Why law firms are paying attention to blockchain



A new index has been launched to measure innovation in legal services delivery among law firms. It’s the creation of Daniel Linna, the director of The Center for Legal Services Innovation at Michigan State University College of Law.  His hope is that buyers of legal services will use the index to gauge the efficiency of their law firms. 

As Robert Ambrogi notes, the index is not without its shortcomings. For starters it focuses on large law firms, even though smaller outfits play a big role in driving innovation.  And by Linna’s own admission, it relies heavily (based on Google advanced searches) on what law firms say about their innovation efforts on their websites. There is no guarantee that they are doing anything meaningful.

Still, the index offers a window into how firms see the innovation landscape evolving. And the emerging technology that appears to have captured their imagination is blockchain – even more so than artificial intelligence.

A reason for this may be, as Bill Henderson suggests in a recent post, that blockchain-based “smart contracts” and their potential to automate and enforce contract terms are “closer to lawyers’ natural wheelhouse.” And as Henderson observes, that will have an impact on the substantive aspects of law, as well as business of law itself.

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CBA Futures

Legal futures round-up

By Yves Faguy August 22, 2017 22 August 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.

First a quick look at what’s happening around the world.

A new legal blockchain consortium has been announced. It brings together several law firms and legal tech companies, including IBM Watson Legal and US law firms Baker Hostetler and Orrick. The consortium will be looking into issues around the use of blockchain and smart contracts.

European law firm Fieldfisher has investsed in a digital platform that will automatically generate and update documents required during start-up funding rounds.  The idea is to help start-ups and investors negotiate and close deals remotely and more quickly.

Jim Neath, interviewed on why he left his position as global head of litigation at British Petroleum to consult on data analytics, said that law firms will ultimately move away from apply analytics internally to conduct data review”: “My own view is they will come to see high end computer analytics as not their core competency.”

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Access to justice and Quebec's dispute over claim limits in provincial court

By Yves Faguy August 15, 2017 15 August 2017

Access to justice and Quebec's dispute over claim limits in provincial court


There is a growing concern over a constitutional challenge by a group of Quebec Superior Court judges against the federal government and the province that may have profound implications for access to justice in Canada.

In their suit the judges are seeking a judgment (in Superior Court no less) declaring that the Court of Québec has exclusive jurisdiction only over civil claims under $10,000 (a figure that has been adjusted for inflation), in accordance with section 96 of the Constitution Act, 1867. Under current civil procedure rules in the province, the court can hear claims up to $85,000.

Montreal litigator and blogger Karim Renno calls the challenge justified.  “It’s an important constitutional question and it’s difficult to imagine who would be in a better position than judges of the Superior Court to submit the matter for adjudication,” he told Droit-inc (Our translation).

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Updating NAFTA's labour and environmental standards

By Yves Faguy August 14, 2017 14 August 2017

Updating NAFTA's labour and environmental standards

NAFTA talks begin this week, a challenge John Geddes notes that “has emerged, unexpectedly, as a defining issue for Prime Minister Justin Trudeau’s still-young Liberal government.” 

Today, Foreign Affairs Minister Chrystia Freeland was at the University of Ottawa to talk about Canada’s goals in modernizing NAFTA, namely by pushing for stronger labour and environmental safeguards into the core of the trade deal. “We are seizing this opportunity to make what is already a good agreement, even better,” was Freeland’s main message.

Freeland has in the past praised Canada’s trade deal with the EU and its labour and environmental provisions as model for NAFTA.

But in their primer on what to expect from the upcoming talks, trade lawyers at McCarthy throw a measure of cold water on those twin objectives:

There are two points of interest here. First, while both sets of US Objectives discuss incorporating the sections into NAFTA itself, and contain provisions requiring certain actions and panels to investigate and ensure commitments are met, there is no US Objective setting out proposed consequences for breach. CETA attracted a great deal of attention for being a “Green” free trade agreement because it included a chapter on the environment. However, without concrete enforcement provisions, including the loss of concessions up on a breach, these commitments remain window dressing. CETA, for all of its progressive claims, falls into this category: the environmental and labour chapters lack teeth.

Second, the US Objectives on labour do not deal with the freedom of movement of citizens or residents of the countries for business or other purposes. One of the key elements of CETA was a recognition that, to properly supply services, there had to be a guarantee for business travellers and business travel between the participating countries. There were also ground-breaking provisions relating to the framework for mutual recognition of credentials for professional workers (such as architects, engineers, or lawyers).

It will likely be difficult for the Canadian government to extract any concessions on this front from the United States. All the same, given the current trajectory of US demands, including broad access for service suppliers conducting business internationally, there may be limited room for liberalization for professional and business workers.

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Risk management

A new normal: Climate and cybersecurity risks in financial disclosures

By Yves Faguy August 9, 2017 9 August 2017

A new normal: Climate and cybersecurity risks in financial disclosures

Kevin LaCroix, discussing directors' and officers' liability, points to some telling signs of the times:

One of the fundamental principles on which our system of securities regulation is based is the importance of disclosure. The system is built on the notion that companies must disclose certain basic information about their operations and performance so that investors can make informed investment decisions. While the disclosures required are a matter of regulation and statute, investors’ and regulators’ expectations about what must be disclosed changes over time. Signs are that disclosure expectations  — and as a result disclosure practices — are changing rapidly in two particular areas: cybersecurity and climate change.

As if to underline the point, Australia's top bank is now the target of a shareholder suit over climate change risks. As The Guardian reports, the case marks a first test to gauge how courts will hold companies to account on disclosure requirements that should be identified in their annual reports:

The move comes six months after the Australian financial regulator warned climate change poses a material risk to the entire financial system, and called for companies to report on climate change-related risks as financial risks.

The sorts of risks the Commonwealth Bank might face as a result of climate change are diverse, said David Barnden, a lawyer at Environmental Justice Australia.

“CBA has exposure to the Australian economy in general. We could be talking about anything from extractive projects to the housing market, which might face risks from sea level rise,” Barnden said.

Reputational risks for the bank as the economy moves away from fossil fuels could also be significant, Barnden said, with the shareholders raising concerns about the bank’s position on funding Adani’s proposed Carmichael coalmine and associated infrastructure.



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