Canadian Bar Association Practice Tools on Business and Human Rights

The Canadian Bar Association has developed tools to help practitioners navigate the area of business and human rights.

"Businesses, including their subsidiaries and partners, are not isolated from the societies in which they operate, nor are they insulated from events occurring in places where they secure raw materials and other goods. These facts are underscored by two recent and high-profile international developments: the February 2021 military coup in Myanmar; and the persecution of Uyghurs and other minorities in China's Xinjiang province. As a result, companies in Canada and across the globe are being required to examine their operations to ascertain what links, if any, they have to any ongoing human rights abuses in these territories. Situations like these will continue to present themselves, and will require Canadian lawyers and their clients to examine operations and formulate responses. This guide is meant to assist Canadian (external and in-house) practitioners with these efforts."

Privacy Best Practices in a Public Health Emergency

David Fraser at the Canadian Privacy Law Blog recently published an article about Privacy best practices in a pandemic public health emergency:

"Since the early days of the COVID-19 pandemic, privacy questions have been in the headlines. International media reported stories from Asia about smartphones being used to enforce quarantine orders. In Ontario, Premier Ford suggested using telecom data to track social isolation compliance and more recently the Quebec police announced that it had arrested a woman in violation of a quarantine order by tracking her down via her cellphone."

"Companies are wondering what information they can require from employees about their health, diagnosis or risk factors, and what information they can provide to public health authorities if asked. Companies also have similar questions about customer information."

Legal Updates About COVID-19 Pandemic from Law Firm McCarthy Tetrault

Canadian law firm McCarthy Tetrault has been producing updates about the legal implications of the COVID-19 pandemic.

The material covers insurance losses, tax measures, the impact on contractual obligations, federal and provincial emergency powers, cyber issues, cancellations in the court system, and more.

Library of Parliament Background Paper: How Do Digital Multinationals Legally Avoid Tax in Canada?

The Library of Parliament recently published a background paper on how large digital companies like Google, Apple, Facebook and Amazon avoid corporate tax:

"In October 2019, noting that a growing number of countries no longer want to wait for an international agreement to be reached and are taking unilateral measures to tax certain multinationals, including those in the digital economy, the Secretary-General of the OECD [Organisation for Economic Co-operation and Development] proposed a unified approach to taxing multinationals. He hoped to restart negotiations between countries so that an international agreement could be reached by the end of 2020."

"In Canada, the federal government will have to decide whether to quickly implement its own tax on multinational digital companies, often referred to as 'GAFAs' in reference to Google, Apple, Facebook and Amazon, or whether to wait for the conclusion of an international agreement, which is anticipated in 2020, but is likely to be later, based on previous delays involving multilateral negotiations."

The paper looks at current Canadian corporate tax law and the development of an international tax treaty. It also examines the policies of the European Commission, France and United Kingdom.

New International Law Research Guide on Third-Party Funding in Investor-State Dispute Settlement

GlobaLex, a very good electronic collection created by the Hauser Global Law School Program at the New York University School of Law, has published a new research guide on Third-Party Funding in Investor-State Dispute Settlement:

"Third-party litigation funding is a rapidly expanding industry composed of speculative investors who finance legal claims in a number of disputes, in exchange for influence over case management and a contingency in the recovery. As third-party funding now becomes increasingly widespread in investment arbitration, it becomes critically important for policymakers, academics, IGOs/NGOs, arbitral institutions and practitioners alike to understand how third-party funding works in the investment arbitration setting and its implications, as well as ongoing reform efforts addressing the role of this funding mechanism in investor-state dispute settlement (...)"

"Investment arbitration differs from private commercial arbitration in a number of key respects relevant to understanding the implications of third-party funding. First, investment arbitration in the ISDS [investor-state dispute settlement] system involves States as respondents, rather than commercial parties. Therefore, claims and costs are paid from State budgets (i.e. taxpayers) rather than a commercial defendant’s resources or shareholders. Second, ISDS proceeds under a set of substantive rules (BITs) which create rights for investors but primarily only duties for States, meaning States can generally not raise counterclaims and cannot recover in turn (except costs in certain cases) from investor claimants. Third, ISDS takes place under procedural rules (ICSID or UNCITRAL arbitration rules are the primary ones) that allow claimants to select one of the three arbitrators, and which do not allow for appeal."

"Third-party funding in this setting has drawn particular attention because it has a more profound impact on investment policy and a host of other issues, than it necessarily raises in other settings. Third-party funding has become one element in the heated debates about “the purpose, function, and legitimacy of the laws governing foreign investment and investment arbitration.” This is so because the increasing costs, increasingly large monetary awards, and growing number of cases have become matters of recent public concern regarding the ISDS system. Third-party funding raises issues related to conflicts of interest, access to justice, disclosure and transparency, to ongoing investigation of the risk, costs and balance of ISDS procedures."

"This research guide aims to provide the tools necessary for your understanding and researching of third-party funding in the context of investor-state arbitration. A selected bibliography of scholarly writings, publications from IGOs/NGOs and institutional repositories that may inform you about the history, background and development of third-party funding in ISDS and the current debate is included in Section 8."

Canadian Association of Law Libraries Webinar on SWOTing Business Development Opportunities

The Canadian Association of Law Libraries (CALL) is hosting a webinar on November 22, 2018 on SWOTing Business Development Opportunities:

"This webinar will cover how to use publicly available sources to add value to client background reports. Numerous sources provide generic pre-packaged background reports on companies. In addition to these, many publicly available sources - annual reports, media, governmental public disclosure, etc. - can punch up the value of these reports. This session will demonstrate how to use these sources to assess the Strengths, Weaknesses, Opportunities, and Threats (SWOT) of a target company, and how to use this information to SWOT out potential business development opportunities."

The speaker will be Katie Cuyler, Public Services Librarian at the University of Alberta.

The webinar takes place from 1 to 2:30PM Eastern.

Cost is $45.20 for CALL members ($28.25 for CALL student members), $67.80 for non-members.

Law Firm Bulletin Articles on the Recent Federal Budget

The website of the CAIJ (Centre d'accès à l'information juridique), which is associated with the courthouse libraries in the province of Quebec and the Quebec Bar Association, has a section devoted to private law firm news publications.

 

There have been many articles written about various aspects of the recent federal budget, including tax, trusts, charities, cannabis, trade and  financial institutions. There are articles in English and French:

• March 26 roundup
• March 27 roundup

Most Recent Issue of LawNow: Law for Entrepreneurs

The most recent issue of LawNow is available online.

The magazine is published by the Centre for Public Legal Education Alberta.

The issue features a series of articles on small business law as well as a special report on poverty and homelessness.

Updated Research Guide on Investor-State Arbitration

The GlobaLex collection at New York University Law School has updated its research guide on International Arbitration Between Foreign Investors and Host States (Investor-State Arbitration):

"International arbitration between a foreign investor and a host State results from their agreement to solve their disputes in this manner. That agreement may take the form of a contractual provision (including those in a legal stability contract or a subsequent arbitral agreement), but increasingly it is the result of a foreign investor accepting a State’s standing offer to arbitrate disputes in international investment agreements (IIAs); primarily bilateral investment treaties (BITs) and free trade agreements with an investment chapter... "

"According to the United Nations Conference on Trade and Development (UNCTAD), there are over 3,286 IIAs in force. States often make information about IIAs. they are party to available online in order to promote investment and increase the transparency of their investment climate. Foreign affairs and trade ministries, relevant sectoral authorities and trade and investment promotion authorities are natural sources for this information."

Related Library Boy posts include:

• International Investment Agreements and Human Rights (May 20, 2008)
• Investment Treaty Arbitration Website from University of Victoria (June 16, 2010)
• Osgoode Hall Law School Launches International Investment Arbitration Website (October 11, 2011)
• Library of Parliament Article on Ratifying and Implementing Trade and Investment Treaties in Canada (October 31, 2016)

Irish Law Reform Commission Issues Paper on Regulatory Enforcement and Corporate Offences

Earlier this week, the Irish Law Reform Commission released an Issues Paper on Regulatory Enforcement and Corporate Offences:

"It addresses a wide range of questions concerning two related matters. The first is whether the supervisory and enforcement powers of the State’s main financial and economic regulators are adequate or need to be supplemented by, for example, civil financial sanctions and more effective co-ordination between regulators. The second is whether there are gaps in the criminal law that do not deal sufficiently with serious wrongdoing by corporate bodies, in particular regarding current fraud legislation and the general rules for attributing criminal liability to corporate bodies."

"The broad context for this Issues Paper can be traced to the financial and economic collapse that emerged in 2008. A number of studies discussed below have identified failings in regulatory supervision and enforcement in the years preceding the collapse. The close relationship between regulatory law and criminal law also brings into focus the effectiveness of existing criminal offences and the ways in which they might affect how companies behave and are regulated. Significant reforms to both the regulatory framework and criminal law have been enacted since 2008 but important areas remain to be addressed. This Issues Paper identifies a number of these on which the Commission now seeks views. Many of these can be linked to the financial and economic collapse of 2008, but a number potentially have a wider application beyond financial regulation, including those concerning fraud offences and the attribution of criminal liability to corporate bodies. To that extent, this Issues Paper addresses future risks as well as risks already identified as arising from the financial collapse of recent year."

The report examines how other jurisdictions like the UK, Australia and the US handle issues such as the enforcement powers of financial and economic regulators, the use of negotiated compliance agreements to avoid prosecution, cooperation between regulators, corporate fraud, "reckless trading", etc.

Canadian Association of Law Libraries Webinar on Business and Industry Research

The Canadian Association of Law Libraries (CALL) is hosting a webinar on September 29, 2015 on Conducting Business and Industry Research:

"This webinar provides an introduction to conducting research on business and industry information. The session will provide tips and tricks for:

• Defining business and market research
• Sourcing company lists and finding information on specific businesses
• Finding and using industry level information, including statistics, financial data, market trends and more"

The speaker is Heidi Schiller, Manager of InfoAction, Vancouver Public Library’s fee-based research service.

The webinar will take place at 1:00pm-2:30pm Eastern time.

ALL/ACBD Member: $40 + $5.20 HST    = $45.20/webinar
Non-member: $60 + $7.80 HST    = $67.80/webinar
Student Rate: $25 + $3.25 HST    = $28.25/webinar

It is possible to register online. 

Library of Parliament Legislative Summary of Bill C-49: An Act to amend the Competition Act

The Library of Parliament recently published a legislative summary of Bill C-49: An Act to amend the Competition Act (short title: Price Transparency Act):

"Bill C-49: An Act to amend the Competition Act (short title: Price Transparency Act)1 was introduced and given first reading in the House of Commons on 9 December 2014. Fundamentally, the bill aims to end geographic price discrimination, which, according to the government, is one of the key contributors to the Canada–U.S. price gap for consumer goods."

"The bill gives the Commissioner of Competition the authority to investigate alleged cases of price discrimination between the two countries. The Commissioner’s findings, which are to be publicly reported, must include the apparent reasons for price differences and shed light on any unjustified differences (...)"

"Bill C-49 received a mixed response from stakeholders following its introduction and first reading in the House of Commons. According to media reports, the main criticism of the bill is that it will probably not be effective in reducing the consumer goods price gap between Canada and the United States. The C.D. Howe Institute suggested that the bill might even diminish competition in Canada by discouraging foreign companies from doing business in Canada. "

"However, the Retail Council of Canada expressed support for the bill. It believes that some foreign manufacturers sell their products at a higher price to Canadian retailers than to U.S. retailers, simply because they believe that Canadians are willing to pay more for the same product. The council believes that the bill will identify manufacturers who practise geographical price discrimination and allow Canadians to know which ones are treating them fairly."

It is possible to follow the progress of the Bill in Parliament on the LEGISinfo website.

Alberta Law Reform Institute Publishes Report for Discussion on Non-Profit Corporations

The Alberta Law Reform Institute has just published Report for Discussion 26 – Non-Profit Corporations:

"Non-profit organizations and regulators are often working within limited means. The balance between requirements and the ability to comply is crucial, so that human and financial resources can be dedicated to the objectives of the organization and to the appropriate role of the regulator. The first step in achieving such balance is not only to get input from non-profits themselves, but also from those who interact with these organizations, including corporate authorities, granting agencies and legal advisers."

"To this end, the Alberta Law Reform Institute (ALRI) has worked in collaboration with representatives of various types of stakeholders to develop a better understanding of the issues each respectively deal with. As part of this consultation process, ALRI now releases a Report for Discussion.  (...)"

"Given its importance, the sector needs to be supported by a governance framework that is clear and enabling. The current provincial corporate legislation does not do this well. Rather, it is characterized by gaps, inconsistencies and outdated concepts. The scope of ALRI’s project is to reform the primary non-profit corporate legislation in Alberta, the Societies Act and Part 9 of the Companies Act. The challenge, however, is to develop a corporate legal framework that will meet the needs of this diverse sector."

The Report also looks at reform attempts in other Canadian jurisdictions such as Saskatchewan, Ontario, British Columbia and the federal sector.

Researching Canadian Companies for Free

Last week on Slaw.ca, Susannah Tredwell, the Manager of Library Services at Davis LLP wrote a piece about Researching Canadian Companies for Free that contains many useful tips.

She breaks down the process of researching companies into 3 steps:

• Determine what information are you looking for
• Is it a public company, a private company or a crown corporation?
• Jurisdiction? (i.e. federal or provincial)

She then describes the free research tools out there: company websites, Google Finance, Yahoo Business, Strategis (Industry Canada site), SEDAR (documents filed by public corporations), CanLII, court registries, even LinkedIn.

She concludes:

"These are just some of the resources available; depending on geographical location and what is being looked for, there may be other equally helpful resources not listed above. As I mentioned above, I also recommend checking with your local public library to see what databases they offer access to. That said, if you do a lot of company research, you will want to look into subscribing to one of the paid services that have already compiled and analyzed company data, as this will save you a lot of time."

Top Ten Business and Human Rights Issues in 2013

The London-based Institute for Human Rights and Business has published its Top 10 List of Business and Human Rights Issues for 2013:

"Just 18 months after the adoption of the UN Guiding Principles on Business and Human Rights, significant progress has been made in integrating human rights concerns into a range of important initiatives by governments, businesses and other actors around the world."

"The success of the first annual UN Forum on Business and Human Rights highlighted the growing momentum of the business and human rights movement globally. But ongoing protection gaps remain to be addressed and recent reminders of wide scale abuses of fundamental worker rights point to challenges for 2013 and beyond."

"These developments, and the results of a public consultation process, provide the frame for today's release by IHRB of our 4th annual list of Business and Human Rights issues to mark International Human Rights Day."

The issues are:

• Embedding respect for human rights across all business relationships
• Expanding action to combat forced labour and human trafficking
• Tackling challenges of dual-use internet-based technologies that may undermine privacy rights and freedom of expression
• Advancing uptake of the UN Guiding Principles in key enabling sectors including finance, ICT and infrastructure
• Leveraging government as an economic actor through public procurement policies that ensure respect for human rights
• Renewing efforts to protect lives in the work-place
• Mitigating the ‘resource curse’ by preventing negative human rights impacts of oil and gas exploration
• Linking respect for human rights to calls for greater transparency in lobbying by businesses
• Ensuring responsible investment in conflict-affected and 'high risk' areas
• Addressing the impacts of land and water grabs linked to transport, fishing, security, mineral extraction and other sectors

[Source: Amnesty International]

New Factsheets from the European Court of Human Rights

The European Court of Human Rights (ECHR) in Strasbourg has published a series of Factsheets that describe important jurisprudence of the institution on a number of subjects.

The ECHR recently added new Factsheets on the right to life, companies and taxation. They include key cases and pending applications before the Court.

The ECHR hears complaints from individuals living in any of the member states of the Council of Europe about violations of the European Convention of Human Rights. The Council of Europe is one of the continent's oldest political organizations, founded in 1949. It has 47 member countries.

July/August 2012 Issue of LawNow Looks at Corporate Social Responsibility

The most recent issue of LawNow Magazine takes a look at corporate social responsibility.

Feature articles examine corruption, the complexity in determining what is and what is not corporate social responsibility, as well as three (3) cases: the British Petroleum Deepwater Horizon disaster, Calgary-based Niko Resources (bribery case in Bangladesh) and Chevron's legal battles over environmental destruction in the Ecuadorian Amazon region.

Here is the full table of contents.

[Source: Blogosaurus Lex (Centre for Public Legal Education Alberta)]

Alberta Law Reform Institute Final Report on Joint Ventures

The Alberta Law Reform Institute has released its final report on joint ventures:

"Joint ventures by business entities have  become increasingly common and increasingly important to the economic life of Canada and other countries. They are prevalent in the construction industry for large projects such as dams, road works and public buildings. They are often used in the energy industry to provide efficiencies in the development of oil and gas properties. They are also used for smaller undertakings such as the development of a small subdivision. However, while the joint venture has developed, the legal landscape in which it operates has not developed to accommodate it. In particular, a joint venture is at risk of being categorized for legal purposes as a partnership and thus subject to a Partnership Act first adopted in 1896 and to common law that has developed over the centuries. There is thus a lack of fit between the applicable law on the one hand and the exigencies of present-day joint ventures on the other hand. This lack of fit results in a degree of uncertainty which has not necessarily been removed even if joint ventures have attempted to assert their status clearly. "

"The purpose of this report is to recommend legislative reform to clarify the lack of certainty by allowing a joint venture to take itself out of the law relating to partnership. To do so it would have to meet two requirements – declare in writing that it is not a partnership and carry on business under a name that includes 'Joint Venture' or 'JV'. A joint venture that meets these conditions would effectively take itself out of the law applicable to partnerships. This aspect of our recommendations would clarify the law relating to the relationships among joint venturers. The second aspect of our recommendations would clarify the law relating to the relationship between a joint venture and third parties. We do this by simplifying and redefining the basis of liability between the joint venturers and third parties. Finally, we set out the timing and effects of how a new or existing joint venture might meet these requirements. "

There is more background on the Commission's joint ventures project on its website.

Library of Parliament Legislative Summary of Bill S-5, the Financial System Review Act

The Library of Parliament has published its legislative summary of Bill S-5, the Financial System Review Act:

"The bill amends the four primary statutes under which federally regulated financial institutions are governed:

• the Bank Act;
• the Cooperative Credit Associations Act;
• the Insurance Companies Act; and
• the Trust and Loan Companies Act"

"Amendments to the Bank of Canada Act, the Canada Deposit Insurance Corporation Act, the Canadian Payments Act, the Winding-up and Restructuring Act, the Office of the Superintendent of Financial Institutions Act, the Payment Clearing and Settlement Act, the Financial Consumer Agency of Canada Act, the Jobs and Economic Growth Act and the Sustaining Canada’s Economic Recovery Act are also included in the bill."

"Bill S-5 contains various measures that update the law governing financial institutions; in particular, the bill includes amendments in relation to:

• the shares of a Canadian financial institution being held by foreign financial institutions controlled by foreign governments;
• acquisitions of foreign entities by Canadian financial institutions;
• the widely held ownership threshold for banks;
• the authority of the Superintendent of Financial Institutions over certain types of transactions;
• the administration of unclaimed insured deposit accounts by the Canada Deposit Insurance Corporation (CDIC) and the Bank of Canada;
• the insolvency of financial institutions and the liability of the CDIC when acting as a receiver during receivership of an insolvent financial institution;
• compliance panel orders of the Canadian Payments Association;
• restructuring of insurance companies; and
• the liability of officials and employees of the Office of the Superintendent of Financial Institutions (OSFI) and the Financial Consumer Agency of Canada (FCAC)."

It is possible to follow the progress of Bill S-5 through the federal Parliament on the LEGISinfo website.

New Zealand Law Commission Fifth Issues Paper on Law of Trusts

The Law Commission of New Zealand has published its fifth issues paper in its review of the law of trusts. It is the final in a series of Issues Papers that have discussed particular issues and problems with trusts law in order to enable the development of law reform proposals to modernize trusts legislation in New Zealand:

"Part 1 of this Issues Paper examines the various powers the courts have in respect of trusts and trustees. There is a public interest in ensuring the effective, prudent and honest management of trusts. The courts have a crucial role in this context, and accordingly, exercise a number of powers, both facilitative and regulatory. The Commission has broken its discussion on the role of the courts down into three broad topics, addressed in separate chapters (...)"

"Part 2 discusses alternative methods to the courts for resolving trust disputes and making decisions. Chapter 4 outlines the argument for introducing a new mechanism for trust dispute resolution and decision-making. It examines the options of an ombudsman, tribunal and commission. Chapter 5 discusses how alternative dispute resolution methods can be put to greater use in the context of trusts."

"Part 3 focuses on a particular type of trust used in New Zealand – trading trusts (...)"

"Part 4 discusses placing greater regulatory requirements on trusts. Chapter 9 discusses possible problems with the current lack of regulation of trusts in New Zealand and looks at the ways in which trusts are regulated overseas. It raises several options for regulation of trusts, including registration and reporting requirements. Chapter 10 considers whether there is a need for additional regulation of those providing services to trusts. It examines existing regulation and also looks at the more comprehensive regulatory regimes some overseas jurisdictions have adopted in this area."

Earlier Library Boy posts about the New Zealand Law Commission's review of trust legislation include:

• New Zealand Law Reform Commission Introductory Issues Paper on Law of Trusts (November 17, 2010): "The first issues paper is primarily a background paper. It traces the development of the trust from its origins in England through to the present day uses of the trust both in New Zealand and internationally."
• Recent Reports by the Law Commission of New Zealand (December 30, 2010): "The second issues paper will cover issues with the use of trusts (especially family trusts) in New Zealand. This paper will look at the purposes for which family trusts are established, including reducing tax obligations, protection of assets from creditors and relationship property claims, and meeting eligibility thresholds for government assistance. The paper examines different legislative and judicial responses to the use of trusts to 'look through' or disregard a trust where a trust has been used to frustrate the underlying policies of particular statutes."
• New Zealand Law Reform Commission Third Issues Paper on Law of Trusts (May 4, 2011): "Part one of the paper examines the rules that limit the duration of a trust: the common law rule against perpetuities and the Perpetuities Act 1964. The Commission explores the underlying rationale for the rule against perpetuities and asks whether the rule continues to meet a relevant policy need or whether either the mechanism for achieving this policy or the policy basis itself should change. The paper canvasses different options, including retaining the statutory perpetuity rule, adjusting or extending the statutory rule and abolishing the rule altogether, as has been done in a number of overseas jurisdictions. Part two of the paper looks at the rules that allow trusts to be altered. "
• New Zealand Law Reform Commission Fourth Issues Paper on Law of Trusts (June 30, 2011): "Part one of the paper examines the duties that a trustee owes to beneficiaries of a trust. It gives particular attention to the duty to inform beneficiaries about matters relating to the trust (...) Part two of the paper discusses the appointment, retirement and removal of trustees. It also addresses the powers given to a trustee."