Message From the Chair: Recent and Upcoming Events
John W. Boscariol
The 2009/2010 term has been a very active one for the International Law Section due to the hard work of our Executive members who have been active in publications, policy and programs addressing current and cutting edge international legal issues.
The Accentuate Case: Contracting Parties Watch Out for those Mandatory Laws!
Mona Pinchis
Parties should exercise caution when choosing a law to govern their agreement if mandatory EU law may be relevant. Companies incorporated outside of the European Union (“EU”) must be aware that the EU Commercial Agents (Council Directive) Regulations 199, reg. 2(1) (the “Regulations”), which regulates trade and business within the EU, prohibits parties to whom they apply from “contracting out” of mandatory application. The Accentuate decision may have a significant impact on certain Canadian (or any non-EU member) exporters using commercial agents in the EU. Finding the mandatory EU law applicable in Accentuate, the High Court voided a contracted agreement that applied choice of law and arbitration provisions under foreign law, as it did not give effect to the mandatory provisions of EU law.
Litigants in Ontario actions can now predict with more certainty when the court will assume jurisdiction over out of province defendants after the Ontario Court of Appeal’s decision in Van Breda v. Village Resorts Limited and Charron v. Bel Air Travel Group. The Court of Appeal revised the framework for determining jurisdiction simpliciter established eight years ago in Muscutt v. Courcelles. This article describes how Van Breda changes the Muscutt framework and then briefly examines Van Breda’s impact on jurisdiction motions.
Supreme Court of Canada Decision a Wake-Up Call for Tardy Victors in International Arbitration Proceedings
Orlando Silva
Arbitration as an option for dispute resolution in international commercial transactions presents a unique set of issues that are often not given the attention and due care they deserve. The primary attraction of international arbitration is that an award rendered pursuant to a valid arbitration clause has virtual finality and international currency in terms of enforcement. It will therefore not be subject to appeal as are court judgments. The intention is that the parties will be able to enforce an arbitration award with minimal court intervention.
Trade Remedies in North America by Gregory W. Bowman, Nick Covelli, David A. Gantz & Ihn Ho Uhm
Rajeev Sharma
This is one of the more enthusiastic book reviews you will read. The authors of Trade Remedies in North America are accomplished experts in the field, and it shows. Their remarkable new treatise is simply the most comprehensive and well written on the law and practice of trade remedies
On June 24, 2010, the international law bar came together at a dinner held at Sunnybrook Estates in Toronto to celebrate the achievements of this year’s recipient of the OBA Award of Excellence for International Law, Meg Kinnear
The Globetrotter is published by the International Law Section of the Ontario Bar Association. Members are encouraged to submit articles. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment.
Message From the Chair: Recent and Upcoming Events
John W. Boscariol*
The 2009/2010 term has been a very active one for the International Law Section due to the hard work of our Executive members who have been active in publications, policy and programs addressing current and cutting edge international legal issues.
The following highlights our Section’s activities since September of 2009:
(i) September 29, 2009. We began the year with a program on “New Developments in Canada’s Screening of Foreign Investments”. Ted Posner of Crowell & Moring and Oliver Borgers of McCarthy Tétrault provided an overview and an analysis of national security review mechanisms for foreign investment in Canada and the United States. The event was chaired by Ian Laird and John Boscariol and was presented in conjunction with the CBA-NSIL International Trade and Investment Committee and the American Bar Association Section of International Law Canada Committee, International Trade Committee, International Investment and Development Committee and National Security Committee.
(ii) October 20, 2009. Members of the Section gathered in Toronto’s Distillery District to recognize the achievements of Jon R. Johnson and present him with the OBA’s Award of Excellence for International Law. Jon was honoured as one of Canada’s most accomplished lawyers in international trade and investment law.
(iii) December 8, 2009. The Section held a program on “The Canada-Europe Comprehensive Economic Trade Agreement: A Dialogue with Canada’s Chief Trade Negotiator”. Chaired by Cliff Sosnow and featuring Steve Verheul, Canada’s chief CETA negotiator, the presentation gave us an insider’s view on the ongoing efforts of Canada and the EU in negotiating what may be become one of Canada’s most comprehensive trade and investment agreements.
(iv) January 13, 2010.The Section, in cooperation with the ABA Section of International Law, presented “A Practitioner’s Guide to U.S. and Canadian Anti-Boycott Law and Policy”. This CLE program provided an overview of the nuts and bolts of boycott provisions in the United States as well the application and enforcement of anti-boycott regulations both in the United States and Canada.
(v) February 16, 2010.The Section continued its participation in the OBA’s Annual Institute with its presentation of the program “Navigating the International Assignment Maze: Immigration, Employment and Taxation Issues in Foreign Worker Transfers”. Co-chaired by John Boscariol, the program focused on issues arising on moving foreign workers to Canada, including income tax, customs, immigration and employment law. Greg Kanargelidis spoke on border issues in his presentation, “Can I Bring my Pricey Wine Collection? Customs Issues from The Mundane to the Unusual”.
(vi) March 2, 2010. In cooperation with the ABA International Law Committee on Export Controls and Economic Sanctions, the Section presented a program on “ITAR Compliance at Universities after the Roth Case”. This was of particular interest to universities and their counsel in both Canada and the United States, as the case involved the prosecution of a U.S. university professor accused of violating the U.S. Arms Export Control Act for sharing ITAR-controlled technical data with foreign graduate students.
(vii) March 4, 2010. The Section presented a program on “The Climate Change Debate – Environmental and Trade Policy at the Crossroads”. Chaired and moderated by Dunniela Kaufman and Heather Innes, respectively, this breakfast program brought together experts from Canada and the United States to discuss the outcome of the UN summit in Copenhagen and the trade and business implications of environmental initiatives such as cap and trade. The program was held in conjunction with the Canada-US Law Institute, the ABA International Law Canada Committee, and the CBA-NSIL Trade and Investment Committee.
(viii) March 23, 2010. The Section collaborated with the International Procurement and Canada Committees of the ABA Section of International Law and the CBA-NSIL to present a program on the Canada-U.S. Agreement on Government Procurement. Moderated by Ian Laird and Paul Lalonde, the program bought together officials from the Ontario, Quebec and U.S. governments, along with private practitioners, to discuss the recently announced agreement on Canada-U.S. government procurement and its implications in the broader international procurement environment.
(ix) May 26, 2010. The Section co-sponsored a program on China and International Monetary Reform which included a presentation from the former Governor of the Bank of Canada. The program was held by the International Trade and Investment Committee of the CBA-NSIL and co-chaired by Ian Laird.
(x) On the publication front, Elo Tulving-Blais and Greg Kanargelidis continue to ensure that issues of the Canadian International Lawyer and the Globetrotter newsletter provided Section members with timely articles and updates on developments in international law during the 2009/2010 term.
The Section is also looking forward to a number of upcoming programs and events over the next several months, including the following:
(i) June 24, 2010. The Section is very pleased to announce that this year’s recipient of the OBA Award of Excellence for International Law is Meg Kinnear, currently the Secretary General of the International Centre for the Settlement of Investment Disputes at the World Bank. Until recently, Meg had been General Counsel and Director General of the Trade Law Bureau at the Government of Canada. The Section will honour Meg for her contributions to international law in Canada, and in particular her work with Canadian lawyers in the international law bar, at a dinner event scheduled for June 24, 2010 in Toronto. (Click here for details and to register)
(ii) The Section also has a number of tentatively scheduled events, including a joint event with the New York State Bar on Cross-Border Litigation, to be held in June in Ottawa, a program on anti-bribery requirements in Canada and the United States to be held in September. Other programs under consideration or in preparation include ones addressing the duty to protect Canadians abroad, a NAFTA Chapter 11 update, an owner/entrepreneur six-minute lawyer, aircraft and industrial subsidies, and the Agreement on Internal Trade and other provincial trade deals.
The Section continues to benefit from the continued hard work and creativity of its Executive members in presenting programs, addressing policy issues, and publishing on matters of international law. We look forward to finishing off the year with the bang at our awards event in June and beginning another very active year this coming September.
*John Boscariol, McCarthy Tetrault LLP, is Chair of the OBA Section of International Law and Co-Chair of the ABA SIL Canada Committee.
If mandatory provisions of European Union (“EU”) law may be relevant to a contracted agreement, then non-EU parties must remain mindful when selecting non-EU choice of law and jurisdiction clauses to govern their agreements with EU members, as the EU law may override mutually contracted-out arrangements and continue to apply to the parties. Therefore, lawyers should be aware that by not giving effect to mandatory provisions of EU law, the validity of jurisdiction clauses and choice of law clauses may be held null, void and inoperative in certain situations. Decided in 2009, Accentuate signifies that despite a contracted agreement to refer to disputes to arbitration in a non-EU jurisdiction, such an agreement must not amount to an unlawful attempt to contract out of mandatory provisions of EU law.
Background
In 2004, Accentuate Limited, an English distributor (the “Distributor”), and Asigra Inc., a Canadian licensor (the “Licensor”), entered into a master reseller agreement (the “Agreement”) for the distribution of software products and related hardware. The Agreement was to be governed by Ontario law and for all disputes to be settled by arbitration in Toronto. Disputes arose over a breach of the Agreement in 2006. The English District Court granted the Distributor permission to serve the Licensor out of the jurisdiction to advance claims for breach of contract and compensation as a commercial agent in the sum of £1.75 million in England, as governed by the Commercial Agents (Council Directive) Regulations 1993 (the “Regulations”). If applicable, the European Self-Employed Agents Directive and Regulations entitle a Commercial Agent (as defined in the Regulations) to be indemnified or compensated by its principal upon termination of an agency relationship. The Regulations also firmly provide that parties may not derogate from these provisions to the detriment of the commercial agent prior to the expiry of the agency contract.
In response to the Distributor’s claims, the Licensor applied and was subsequently granted, an order setting aside permission to serve out of the jurisdiction and also obtained a stay of the proceedings pursuant to s. 9 of the Arbitration Act 1996 by the English District Court. The Licensor commenced arbitration proceedings in Toronto, claiming a declaration that the Distributor had no claims against it. The Distributor participated in the arbitration but argued that any claim under the Regulations fell outside the scope of the Agreement. The Distributor also submitted a counterclaim for compensation under the Regulations. Claiming proper jurisdiction and denying the Distributor’s request that the Regulations were outside the scope of the Agreement, the arbitrators concluded that the Regulations did not apply in determining the rights and liabilities of the parties. They issued a number of awards and declared that the Licensor was liable to the Distributor for certain direct losses unrelated to the Regulations. Rather than challenge the arbitration awards in Canada, the Distributor appealed the District Court’s decision to stay the proceedings. The Distributor submitted that the non-EU arbitration awards were irrelevant to the compensation claims, as they were contrary to public policy and a nullity under EU law.
On appeal, the High Court supported the Distributor’s submission it had a good arguable case in establishing that the Regulations applied, and is not defeated by the Agreement’s choice of Ontario law or arbitration clauses. The High Court determined that there can be no stay of the compensation claim brought in England and that the arbitration award may have been unenforceable. In concluding this, the High Court referenced Ingmar GB Limited v Eaton Leonard Technologies Limited, [2000] EUECJ C-381/98, where the European Court Justice established the mandatory nature of EU law, notwithstanding any expression to the contrary on the part of the contracting parties. Based on the facts of the case, the High Court selected the English courts as the appropriate forum to consider whether the Agreement applied to, or was binding as it applied to, the Distributor’s claims as a commercial agent, as governed by the Regulations.
Effect of the Decision
Based on the specific facts in Accentuate, the High Court clearly concluded that if it would have the practical effect of depriving a commercial agent of his rights, then it would be unlawful for parties to contract out of mandatory provisions of EU law, and that this applies to governing law and arbitration clauses. While the High Court clarified the question on jurisdiction, it did not address whether an arbitration clause remains valid if it makes it clear in the contract that an arbitrator may apply mandatory provisions of EU law alongside the chosen law. This point was not addressed in Accentuate because the Distributor decided to pursue proceedings in England rather than seek to appeal the Canadian arbitration awards in Canada.
*Mona Pinchis is currently a LL.M. Candidate in International & Comparative Law at The George Washington University Law School in Washington, D.C. Mona can be reached by e-mail at pinchis.m@gmail.com.
Litigants in Ontario actions can now predict with more certainty when the court will assume jurisdiction over out of province defendants after the Ontario Court of Appeal’s decision in Van Breda v. Village Resorts Limited and Charron v. Bel Air Travel Group.1 The Court of Appeal revised the framework for determining jurisdiction simpliciter established eight years ago in Muscutt v. Courcelles.2 This article describes how Van Breda changes the Muscutt framework and then briefly examines Van Breda’s impact on jurisdiction motions.
Cuba Tourists Beware!
Van Breda and its companion action were brought by Ontario residents injured or killed while vacationing in Cuba. One plaintiff was paralyzed when she was crushed by equipment she was using to exercise. The other plaintiff died during a scuba dive. The foreign corporation managing the resorts challenged the jurisdiction of the court and also argued that Ontario was not the appropriate forum. The foreign corporation appealed after the motions judge assumed jurisdiction over the foreign corporation and refused to stay the actions on the basis of forum non conveniens.
The Jurisdiction Test
The Supreme Court of Canada established the modern approach to jurisdiction in its seminal decision of Morguard Investments Ltd. v. De Savoye.3 Until Morguard, each provincial court had its own set of rules for assuming jurisdiction over out of province defendants who had neither consented nor attorned to the jurisdiction of the provincial court. In Ontario, for example, rule 17.02 set out how service could be properly carried out on defendants outside of Ontario. So long as the plaintiff served the defendant properly under rule 17.02, an Ontario court would take jurisdiction over the defendant. After Morguard, notwithstanding a plaintiff’s compliance with rule 17.02, the plaintiff had to establish a real and substantial connection between Ontario and the litigation before the court would take jurisdiction.
Muscutt – Determining the Real and Substantial Connection
The Court of Appeal added meat to the bones of the real and substantial connection test in Muscutt. While recognizing that the real and substantial connection could not be reduced to a fixed formula, the Court of Appeal set out a list of eight relevant factors to be considered and weighed together. The factors were:
The connection between the forum and plaintiff’s claim;
The connection between the forum and defendant;
Unfairness to the defendant in assuming jurisdiction;
Unfairness to the plaintiff in not assuming jurisdiction;
The involvement of other parties to the suit;
The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdiction basis;
Whether the case is interprovincial or international in nature; and
Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.
Legal scholars have been critical of the Muscutt framework since its release eight years ago. There have also been a number of subsequent developments in the jurisprudence on jurisdiction and the Uniform Law Conference of Canada has developed a model Court Jurisdiction andProceedings Transfer Act which has been adopted by four provinces. In light of these developments, the Court of Appeal in Van Breda assembled a panel of five judges to reconsider the Muscutt framework.
Muscutt Refined
The Court of Appeal unanimously decided to make several clarifications and modifications to the Muscutt framework. Most importantly, a plaintiff can now presume that the court will take jurisdiction over an out of province defendant provided the case falls within one of the categories for out-of-province service listed in Rule 17.02, with two exceptions. The presumption does not apply to cases that fall within Rule 17.02(h) (“damages sustained in Ontario”) and 17.20(o) (“a necessary or proper party”). The Court of Appeal excluded these two categories because, among other reasons, the jurisprudence indicates that these factors are not reliable indicators of a real and substantial connection.
Even if jurisdiction is presumed to exist, the defendant may rebut the presumption. Similarly, in the absence of presumed jurisdiction, the plaintiff can still demonstrate that a real and substantial connection exists. In either case, the court no longer determines the real and substantial connection by evaluating the eight Muscutt factors. Instead the court determines the “core of the real and substantial connection” by examining the forum’s connection to the plaintiff’s claim and the forum’s connection to the defendant.4
The Court of Appeal did not discard the remaining Muscutt factors but said that they should be used “as analytic tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant.”5 The Court of Appeal then provided the following guidance on how the court should use each of the remaining factors:
Fairness. The court now uses considerations of fairness to assess the “relevance, quality and strength of the connections”6 that are the core of the real and substantial connection. However, fairness is not a free-standing factor capable of trumping weak connections.
Would the court recognize and enforce a foreign judgment rendered on the same jurisdictional basis? The court can test the sufficiency of the core of the real and substantial connection by asking whether it would be prepared to recognize and enforce an extra-provincial judgment against an Ontario defendant rendered on the same jurisdictional basis. If the answer to this question is no, then the court should not assume jurisdiction against the extra-provincial defendant.
International Considerations. The court uses considerations of comity and the interprovincial or international nature of the case not as independent factors but as general principles of law that bear upon the interpretation and application of the real and substantial connection test.
Involvement of other parties. Other parties involvement in the action is relevant only in cases where the other parties involvement is asserted as a possible connecting factor.
The Court of Appeal also confirmed that the court has residual discretion to assume jurisdiction in the absence of a real and substantial connection where there is no other forum in which the plaintiff can reasonably seek relief. The Court of Appeal also stressed that the consideration of jurisdiction simpliciter based on the real and substantial connection test is an entirely separate exercise from the forum non conveniens test. The factors to be considered for jurisdiction simpiciter are different and distinct from those to be considered for forum non conveniens. Therefore, the court should ensure that in its jurisdiction simpliciter analysis it does not incorporate or replicate consideration of the matters that pertain to forum non conveniens.
Van Breda’s Impact
After applying the refined jurisdiction test, the Court of Appeal upheld the lower court’s decision to take jurisdiction in both cases. The refined test did not change the outcome of Van Breda, foreshadowing the impact of the refined test on the outcomes of future case. The court’s decision to assume jurisdiction will likely be the same regardless of whether the old or refined framework is applied because the underlying test for jurisdiction has not changed.
The impact of Van Breda is on the certainty it provides to litigants by creating presumed jurisdiction in certain cases. After Van Breda, defendants face a higher bar because the court will presume jurisdiction if the case falls in one of the Rule 17.02 categories. As a result, defendants may be less likely to challenge jurisdiction than prior to Van Breda when defendants did not have to overcome presumed jurisdiction.
*Jonathan Hood and Jeffrey Levine are lawyers with McMillan LLP. Jonathan can be reached at (416)865-7255 or by email at jonathan.hood@mcmillan.ca. Jeffrey can be reached at (416)865-7791 or by email at jeffrey.levine@mcmillan.ca.
Supreme Court of Canada Decision a Wake-Up Call for Tardy Victors in International Arbitration Proceedings
Orlando Silva*
Arbitration as an option for dispute resolution in international commercial transactions presents a unique set of issues that are often not given the attention and due care they deserve. The primary attraction of international arbitration is that an award rendered pursuant to a valid arbitration clause has virtual finality and international currency in terms of enforcement. It will therefore not be subject to appeal as are court judgments. The intention is that the parties will be able to enforce an arbitration award with minimal court intervention.
This is precisely what Yugraneft Corporation tried to do in Alberta, where the arbitral debtor Rexx Management Corporation was located. Unfortunately, it was too late and its application in 2006 in the Alberta courts for the recognition and the enforcement of the foreign arbitral award that it had secured against Rexx in Russia in 2002 was time-barred.
Enforcement of International Arbitral Awards in Canada
Canada and the provinces have clear sets of rules for the enforcement of international arbitral awards. In 1986, Canada, with the consent of the provinces, ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the “New York Convention)1 and adopted the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”). In terms of enforcement, international arbitral awards, subject to very limited specified exceptions, are enforceable in every Canadian jurisdiction. Canada and the provinces have clear sets of rules for the recognition and enforcement of arbitral awards, although the form of implementing legislation varies. Many provinces such as Alberta and Ontario implemented the New York Convention and the Model Law within the same statute (i.e., the Alberta International Commercial Arbitration Act and the Ontario International Commercial Arbitration Act). However, Alberta appended both the New York Convention and the Model Law to its respective International Commercial Arbitration Act, whereas Ontario has only appended the Model Law, on the basis that it, together with the introductory provisions of the Act, served to implement the New York Convention in Ontario. Other provinces, such as British Columbia, enacted international commercial arbitration legislation to implement the Model Law and separate foreign arbitral awards acts to implement the New York Convention.
Both the New York Convention and the Model Law limit essentially the same grounds on which enforcement of an international arbitral award may be refused. These grounds include: (i) the incapacity of a party, (ii) a lack of notice or inability to present case, (iii) the award decides matters not within the scope of the arbitration agreement, (iv) the tribunal was not properly constituted, (v) the award has been set aside or suspended in the originating jurisdiction, or (vi) the award is contrary to public policy.
The Facts
The facts in Yugraneft Corp. v. Rexx Management Corp. were fairly straightforward. Yugraneft, a Russian corporation that operates oilfields in Russia, had purchased materials from Rexx, an Alberta corporation. After a contractual dispute, Yugraneft was successful in its arbitration claim against Rexx before the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation and was awarded approximately US $1M in damages by the arbitral tribunal in September 2002. More than three years later, in January 2006, Yugraneft applied to the Alberta Court of Queen’s Bench for recognition and enforcement of the arbitral award. The court (subsequently upheld by the Court of Appeal) dismissed the application on the basis that it was time-barred under the applicable two-year limitation period of the Alberta Limitations Act.
The SCC Decision
The SCC upheld the Alberta Court of Appeal decision notwithstanding, in addition to arguments from Rexx, interventions and a variety of arguments from the ADR Chambers Inc., the Canadian Arbitration Congress, and the London Court of International Arbitration that the Alberta Limitations Act did not apply.
The court rejected the argument that the enforcement and recognition of foreign arbitral awards are not subject to limitation periods, notwithstanding that neither the New York Convention nor the Model Law expressly impose a limitation period on recognition and enforcement. As the list of grounds on which the recognition and enforcement of an award may be refused (enumerated above) do not refer to local limitation periods, the Court relied on Article III of the New York Convention, which stipulates that recognition and enforcement shall be “in accordance with the rules of procedure of the territory where the award is relied upon.” Rothstein J., writing for a unanimous Court, noted that notwithstanding the exhaustive list of grounds under Article V to the New York Convention upon which recognition and enforcement may be resisted, the courts in the enforcing State may refuse to recognize and enforce an award on the basis that the proceedings are time-barred. The Court held that for the purposes of the New York Convention, “any limitation period that, under domestic law, is applicable to the recognition and enforcement of a foreign arbitral award is a ‘rule of procedure’” under Article III of the New York Convention.
Impact on International Arbitration
This decision is significant in that the Court resisted enforcing and recognizing an international arbitration award on the basis of a provincial limitation period as opposed to any of the enumerated grounds for refusal under the New York Convention or the Model Law.
It will be interesting to see how the jurisprudence develops in other Canadian jurisdictions as there are differences in how each province has implemented the New York Convention and the Model Law, and curious results in terms of enforcement may follow. For example, Ontario’s International Commercial Arbitration Act is intended to implement both but only appends the Model Law, and does not have a provision equivalent to Article III of the New York Convention, as does Alberta’s International Commercial Arbitration Act, which was relied on by the Supreme Court.
Successful arbitration parties with awards in hand, wishing to enforce an award in a given province, should take careful note of the provincial legislation that applies to international commercial arbitration awards and any provincial limitation period legislation that may be applicable when the award is presented to the court for recognition and enforcement.
*Orlando Silva (osilva@mccarthy.ca / 416-601-8028), Partner, International Trade and Investment Law Group, McCarthy Tétrault LLP.
_________________
1 Under the New York Convention, the procedure for obtaining the enforcement of an arbitral award is straightforward. The arbitral award does not have to be confirmed by the courts in the jurisdiction of the seat of arbitration. Under Article IV of the New York Convention, the party seeking enforcement is only required to supply the court in the enforcing jurisdiction with a duly authenticated original award and either the original or certified copies of the arbitration agreement.
Trade Remedies in North America by Gregory W. Bowman, Nick Covelli, David A. Gantz & Ihn Ho Uhm
Rajeev Sharma*
Trade Remedies in North America
Gregory W. Bowman, Nick Covelli, David A. Gantz & Ihn Ho Uhm
Kluwer Law International, March 2010,
xxxviii + 671pp., US$185.00 (Hardcover)
ISBN: 9041128409 (available from Amazon.ca)
This is one of the more enthusiastic book reviews you will read. The authors of Trade Remedies in North America – Prof. David Gantz from the University of Arizona, Prof. Gregory Bowman from the Mississippi College School of Law, Nick Covelli from the Canadian International Trade Tribunal, and retired senior CITT economist Ihn Ho Uhm – are accomplished experts in the field, and it shows. Their remarkable new treatise is simply the most comprehensive and well written on the law and practice of trade remedies.
This wonderful book provides a detailed overview of the international agreements, national laws, institutions, procedures and jurisprudence relating to anti-dumping, subsidies/countervailing duties, and safeguards in Canada, the United States, and Mexico. It also surveys the historic, economic, and policy foundations for these laws, statistical trends in their application, and the rules and procedure for judicial and bi-national panel review.
For the Canadian trade lawyer, this up-to-date book is an invaluable multi-disciplinary guide to the Special Import Measures Act and the CITT Act, and to the practices of the CBSA, CITT, Federal Court of Appeal and bi-national panels over the complete life-cycle of a trade remedy case. The extensive chapters on the WTO and NAFTA rules governing trade remedies, the laws and practice of trade remedies in Canada, and the role of economic analysis in injury estimation, and the case studies on the softwood lumber dispute and the 2002 Canadian steel safeguards inquiry, are first-rate. No other book on Canadian trade remedies compares in terms of clarity, accessibility, narrative analysis, scope, conciseness, or utility. Canadian practitioners will also benefit from the superb chapters on U.S. and Mexican practices; there is plenty of transferable lessons and insights to draw upon for Canadian proceedings or to promote clients’ export interests.
One of my favourite chapters consists of a statistical analysis of North American trade remedy cases. It shows trends in the choice of trade remedy, the affected products and countries, the correlation between trade remedy complaints and macro-economic indicators, the success rates of complainants, and the injury factors that seem to have mattered most to the CITT. This chapter epitomizes the masterful way in which the authors continually put practical little details into the context of the big picture.
In short, this text is a tour de force. It sets a new high-water mark in published works on the subject, and will quickly become an essential guide for all serious practitioners of trade law in Canada.
*Rajeev Sharma is Senior Corporate Counsel, Bayer Inc. and adjunct professor of Law & Economics at York University's Glendon College. He can be reached at 416.248.3040 or by email at rajeev.sharma.b@bayer.com
On June 24, 2010, the international law bar came together at a dinner held at Sunnybrook Estates in Toronto to celebrate the achievements of this year’s recipient of the OBA Award of Excellence for International Law, Meg Kinnear. Currently the Secretary General of the International Centre for the Settlement of Investment Disputes at the World Bank, up until recently Meg had been General Counsel and Director General of the Trade Law Bureau at the Government of Canada.
Meg has played a pivotal role in World Trade Organization and NAFTA Chapter 11 investment dispute litigation in Canada, and along the way influenced the careers of many private practitioners in this area. The Section honoured Meg for her very significant contributions to international law in Canada. Friends and colleagues spoke of Meg's dedication to international law in Canada and her mentoring of younger lawyers at Canada's Trade Law Bureau.
Many thanks to all who came out to celebrate Meg's career and a special thanks to Peter Guennel and his team at the OBA who made the event a great success.
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