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Articles
Cargill v Mexico: The Territorial Scope of Damages under the NAFTA
August 2013
When the Supreme Court of Canada denied the Government of Mexico's application for leave to appeal in United Mexican States v Cargill Incorporated, it left in place a US$77 million arbitral award made under Chapter 11 of the NAFTA. The most noteworthy aspect of the damages award was that more than half of it, approximately US$41 million, was for damages suffered not by the investment that Cargill Incorporated had made in Mexico, the host country, but for damages Cargill suffered in the United States. Published in Global Trade and Customs Journal, Volume 8 (2013), Issue 10, pp. 359-366, by Kluwer Law International.
Tax Controversy 2014
July 29, 2013
Published in Getting the Deal Through – Tax Controversy 2014, Claire Kennedy and Martin Sorensen present the Canadian chapter of this international guide outlining key aspects of income tax dispute resolution.
The Future of Dispute Resolution: The More Things Change, The More They Really Don't
2013
As part of the University of Saskatchewan's Centennial Conference on the Future of Law, I was asked to provide some comments on the future of dispute resolution. Being a full-time practitioner in the area of civil, primarily commercial, disputes, I was asked to consider the topic from my own perspective. After reflecting for some time, reviewing some academic literature, seeking input from colleagues at the bar, and doing some very unscientific statistical analysis, I compiled the following notes. My comments will not reflect the experience of all, or perhaps any, other practitioners in the area. I offer my comments to encourage reflection and discussion. I observe four trends in commercial dispute resolution that I expect will influence the future: the convergence of modes of domestic dispute resolution; the perceived erosion of commercial jurisprudence; increased access to foreign law; and the dramatic increase in the volume of records.Published in the Saskatchewan Law Review 76 Sask. L. Rev. 213 2013.
The Landmark Decision in Jockey Canada Company v. President of Canada Border Services Agency
June 27, 2013
On 4 January 2013, the Canadian International Trade Tribunal (‘CITT') issued its reasons for the landmark decision in Jockey Canada Company v. President of Canada Border Services Agency (‘Jockey') respecting Canadian customs valuation compliance in related party cross-border transactions. The CITT's reasons provide valuable guidance to multinational companies relating to: (1) the importer's burden of proof to establish the correctness of declared values for duty, particularly as it relates to the nature of the sale for export (i.e., which party is the vendor in the sale for export to Canada), (2) the applicability of the transaction value method of customs valuation, as opposed to alternative methods of valuation, when pricing between a related party vendor and the purchaser in Canada is based on a formulaic transfer pricing policy, and (3) the permissibility of downward adjustments to the price paid or payable to account for post-importation adjustments made in accordance with an accepted transfer pricing policy. (2013 Wolters Kluwer) Global Trade and Customs Journal, Volume 8, Issues 7&8, pp. 209-216
YouTube (Part III) Notice and Take Down Safe Harbor Under the DMCA
June 18, 2013
A driving force for the development of the internet was to provide certainty for internet service organizations on the liability exposure they may have for acts of third parties on their internet sites. Published in Slaw, June 18, 2013.
Analyzing Joint Ventures Under Canadian Competition Law
Summer 2013
The framework for review of international joint ventures under Canadian competition law has undergone a significant change since the most recent amendments to the Competition Act (the “Act”) came into force in 2010. The most significant recent development related to joint ventures in Canada has been the adoption of a more appropriate framework for review through the introduction of a civil provision dealing with competitor collaborations in section 90.1 of the Act. International joint ventures will now typically be reviewed under either the merger provisions of the Act or the civil agreements provision in section 90.1. Published in the ABA Antitrust Section Joint Conduct Committee E-Bulletin, Volume 10, No. 2 Summer 2013.
Cross Border Corporate Governance and Cyber Security
June 2013
Duncan C. Card, Interviewee, Cross Border Corporate Governance and Cyber Security article by Julius Melnitzer appearing in The Border column in Lexpert Magazine (June, 2013).
Cyber-Security: Precautions, Best Practices and Legal Obligations
May 26-29, 2013
Duncan C. Card, Panellist, "Cyber-Security: Precautions, Best Practices and Legal Obligations" The 4th Annual ABA International/Israel Bar Association Conference: Law, Business and Technology Conference, May 26-29, 2013, Eilat, Israel.
Crossing Borders: Is Your Company Compliant with OH&S Legislation in British Columbia, Alberta, Saskatchewan and Manitoba?
May 07, 2013
In Enform's publication, Crossing Borders: Is Your Company Compliant with OH&S Legislation in British Columbia, Alberta, Saskatchewan and Manitoba?, Jennifer Miller provides
a legal opinion regarding aspects of the roles and responsibilities of owners,
prime contractors and contractors with respect to certain provincial OH&S
legislation in British Columbia, Alberta, Saskatchewan and Manitoba. Enform
welcomes requests for the Crossing Borders materials.
Dealing with Shareholders and Shareholder Activism
April 10, 2013
Norman Findlay, Jason MacIntosh and Christopher Doucet co-author "Dealing with Shareholders and Shareholder Activism" for the 13th Reinventing the Corporate Secretary conference.
Access to Server Data for Foreign Criminal Investigative Purposes
April 04, 2013
The impacts of privacy sensitivities continue to expand and affect all manner of technology and other transactions.
Canada and the United States have a long healthy and constructive relationship in providing assistance to the law enforcement agencies of each country in the investigation of cross boarder criminal activity. Canada has, with the United States and with other countries a series of mutual cooperation arrangements (including Mutual Law Assistance Treaties or MLATs) in place between Canadian and U.S. law enforcement by which criminal and terrorist conduct can be investigated and relevant information exchanged. Published in Slaw, April 4, 2013.
Third Party Liability for Knowing Assistance
April 03, 2013
Complex commercial frauds often involve an intricate web of connecting individuals and entities. Third parties, such as bankers, brokers, or lawyers, may facilitate the primary fraudster's activities. In recognition of this reality, Canadian law has developed various means by which those third parties may be held accountable for their involvement with the fraud. One such means is the tort of “knowing assistance”. It provides that where a fraud has been committed by an individual or institution acting as a trustee or fiduciary to the victim of fraud, a third party to the trust or fiduciary relationship may be personally liable if that third party dishonestly assisted in the fraud. Published by the Association of Certified Forensic Investigators.
Canada's TSX: A Global Mineral Plays Supermarket
April 2013
Canada is the global mining industry's leading marketplace with over 1,670 mining companies listed on the Toronto Stock Exchange and Venture Exchange (collectively TSX). Of the 2012 global equity capital raised for mineral projects, 70% was raised on the TSX. Written by Eden Oliver and Sander Grieve and published in the April 2013 edition of India Business Law Journal.
GlaxoSmithKline Case: Legal Form and Economic Relevance Prevail
April 2013
The Glaxo decision is a positive one for businesses; however, the Supreme Court of Canada (SCC) has sent a clear signal that the transfer pricing policy established for each related party transaction matters and the transfer prices in the case of multiple transactions, such as the licence of a trademark and the supply of both goods and services, will be carefully scrutinized, argue Claire M. C. Kennedy of Bennett Jones and Brad Rolph, president of Transfer Pricing Specialists. Published in the April 2013 edition of International Tax Review.
Presidents Message in Bulletin
March/April 2013
In the "President's Message," in the Intellectual Property Institute of Canada's Bulletin, Roseann Caldwell informs the organization of IPIC's progress in communicating intellectual property-related proposals with Canadian members of parliament and other government officials, as well as with similar international associations.
Defending Class Actions in Canada
Spring 2013
Cheryl Woodin is the co-author of "Defending Class Actions in Canada," published in The Litigation Report.
Legal Issues: Due Diligence and Risk Management
March 04, 2013
Panel discussion at the China Mining Investment Forum hosted by Canada China Chamber of Commerce and China Mining Association in Toronto.
Ethical Issues in Class Actions Defence: Communications with Putative Class Members
March 01, 2013
Class actions are widely recognized to raise ethical issues for class counsel because of the lack of a traditional client. However, issues for defence counsel may also arise. Most notably, communications with class members can raise problems – particularly when defendants and their counsel may be keen to avoid a class action by early settlement or the creation of an alternate claims procedure. Fortunately, the recent decisions in Lundy v VIA Rail Canada Inc and Durling v Sunrise Propane Energy Group Inc have clarified the obligations that arise in these circumstances, and provide guidance in navigating the ethical boundary successfully. Co-authored by Michael A. Eizenga and Christiaan A. Jordaan, and published in the Barreau du Québec's Colloque National Sur Les Recours Collectifs: Développements Récents au Québec, au Canada et aux États-Unis.
More Fun Than Going to the Dentist: Moldaver, Scott And Leon Talk Shop
March 01, 2013
Following his acceptance of Honorary Fellowship, Justice Moldaver joined Past President David W. Scott, O.C., Q.C., and Regent Jeffrey S. Leon, LSM, in a conversation ranging from the Justice's law school prowess to his thoughts about the use of cameras in the courtroom. Published in the Spring 2013 issue of The Bulletin, a publication of the American College of Trial Lawyers.
Merit Isn't Just for the Winners
January 10, 2013
Merit is a quality that we seek to achieve and have acknowledged. But what is it? To be meritorious is to be deserving of praise. It has been defined as the opinion one man entertains of another. Demerit on the other hand, most of us, seek to avoid. It being a path to infamy. The famous, in a classic and worthy context, are those with merit, or, more accurately, they deserve their fame. That is, that which made them famous has merit and is deserving of praise. A blog entry by Lincoln Caylor on the Huffington Post's The Blog.
Bennett Jones