The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Climate law

Who is really driving carbon pricing?

By Yves Faguy January 27, 2017 27 January 2017


Jason Kroft, Jonathan Drance and Luke Sinclair size up the outlook for carbon regulation and pricing now that the climate skeptics have taken over in the new Trump administration and take a somewhat sanguine view:

While government policy can significantly impact changes in corporate behavior, the transition away from coal to natural gas and renewables is largely driven by private market mechanics. Private actors invest in natural gas and renewables because they offer the highest level of risk adjusted return, not out of altruistic motives. The private market is increasingly incorporating carbon pricing into their risk analysis and investment decisions and project proponents at least consider the carbon “shadow price” in their financial metrics regardless of government policy.

With a long-term investment horizon, often approaching 30-40 years, most infrastructure projects currently in the planning phase will long outlive a Trump presidency. The views of one administration are largely irrelevant as project proponents must consider the risk of increased costs associated with carbon emissions over a project's useful lifetime.

Along similar lines, Lawrence Hsieh writes that it will be the cities that will have to respond to the challenges of climate change, because insurers who taken on municipal risk will be keeping an eye out their responses:

This is because many insurers invest their premiums in real estate. Falling property values due to inundation plus large disaster pay-outs and sudden upticks in disaster-related mortality could jeopardize insurer solvency across all lines of coverage, and threaten the reinsurers and capital markets investors who traffic in insurance risk.

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Vote to leave the EU

Why Brexit requires an act of Parliament

By Yves Faguy January 24, 2017 24 January 2017


The U.K. Supreme Court has ruled that an act of Parliament is needed before the government can trigger article 50 of the Treaty of Lisbon, notifying its intent to pull out of the European Union, a process that must be completed within two years.

The president of the Supreme Court, Lord Neuberger of Abbotsbury, read a summary of the ruling:

Section 2 of the 1972 [European Communities] Act provides that, whenever EU institutions make new laws, those new laws become part of UK law. The 1972 act therefore makes EU law an independent source of UK law, until parliament decides otherwise.

“Therefore, when the UK withdraws from the EU treaties, a source of UK law will be cut off. Further, certain rights enjoyed by UK citizens will be changed. Therefore, the government cannot trigger article 50 without parliament authorising that course.

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Post TPP, what are Canada's trade alternatives?

By Yves Faguy January 23, 2017 23 January 2017


In addition to signing an executive order to renegotiate NAFTA, U.S. President Trump is formally withdrawing his country from the Trans-Pacific Partnership today. Under the terms of the trade deal, it cannot come into force without the participation of the U.S. Meanwhile, a China-led trade deal for Asia Pacific is reportedly nearing completion.

Trade Minister Francois-Philippe Champagne expressed hope last week that Canada could pursue an alternative multilateral trade deal in the Pacific Rim. It could also negotiate a bilateral free trade agreement with Japan. It is planning exploratory trade talks with China.

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Legal marketplace

The billable hour is effectively dead

By Yves Faguy January 23, 2017 23 January 2017

The billable hour is effectively dead


The 2017 edition of the annual Georgetown/Thomson Reuters Report on the State of the Legal Market is out.  Almost a decade following the global financial crisis of 2007-2008, the report describes a lost decade of sorts marked by stagnating demand for law firm services, decline in productivity for many lawyers – measured as a reduction of 144 billable hours per year per lawyer, and client pushback against rate increases:

In considering realization rates, it must be noted that comparing collection realization to standard rates undoubtedly produces a somewhat skewed result, since in most firms standard rates have long since ceased to have any real significance for most clients. Like “rack rates” in hotels, standard rates in law firms have effectively become nominal rates that are arbitrarily set and are almost never paid by any significant client. Accordingly, it is perhaps more meaningful to look at the decline in realization over the past decade as measured against worked rates, or the rates actually negotiated with clients.

The report points to evidence that firms have managed to keep their expenses under control but warns of declining realization rates and calls into question the ability of firms to rely much longer on rate increases no matter how modest they may be:

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Criminal Law

Strip-searching of women in Canada: Wrongs and rights

By Yves Faguy January 5, 2017 5 January 2017


In the latest issue of The Canadian Bar Review, Michelle Psutka and Elizabeth Sheehy of the faculty of law at Ottawa University remind us that, in its 2001 R. v. Golden ruling, the Supreme Court of Canada recognized that strip-searches of women, particularly by male police officers, are “inherently humiliating and degrading’ and therefore should not be a routine practice. And yet, the authors write, illegal strip-searching of women “remains a persistent problem in Canada.” They offer some reasons why our legal system has failed to end the practice, and propose some solutions. CBA National sat down with Michelle Psutka to discuss their findings:


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