This article considers the implications of a March, 2015 ruling of a tribunal struck under the Chapter 11 investor protection provisions of the North American Free Trade Agreement (NAFTA). The majority of the tribunal found that Canada violated Articles 1102 and 1105 of NAFTA when the federal and provincial governments refused to approve a basalt quarry in Digby County (Whites Point Quarry), Nova Scotia following an environmental assessment carried out by way of a joint panel review. The article starts with an overview of the environmental assessment process carried out for the Whites Point Quarry, followed by a summary of the findings of the NAFTA tribunal. The ruling and its implications are then assessed, followed by a review of the investor protection provisions of the recently concluded trade agreement between Canada and the EU (CETA) to consider whether CETA’s investor protection process is likely to encounter similar challenges, particularly when considering the fair treatment of foreign investors in sustainability focused environmental assessment processes.
{"title":"The Bilcon NAFTA Tribunal: A Clash of Investor Protection and Sustainability-Based Environmental Assessments","authors":"Meinhard Doelle","doi":"10.2139/ssrn.3002626","DOIUrl":"https://doi.org/10.2139/ssrn.3002626","url":null,"abstract":"This article considers the implications of a March, 2015 ruling of a tribunal struck under the Chapter 11 investor protection provisions of the North American Free Trade Agreement (NAFTA). The majority of the tribunal found that Canada violated Articles 1102 and 1105 of NAFTA when the federal and provincial governments refused to approve a basalt quarry in Digby County (Whites Point Quarry), Nova Scotia following an environmental assessment carried out by way of a joint panel review. The article starts with an overview of the environmental assessment process carried out for the Whites Point Quarry, followed by a summary of the findings of the NAFTA tribunal. The ruling and its implications are then assessed, followed by a review of the investor protection provisions of the recently concluded trade agreement between Canada and the EU (CETA) to consider whether CETA’s investor protection process is likely to encounter similar challenges, particularly when considering the fair treatment of foreign investors in sustainability focused environmental assessment processes.","PeriodicalId":261746,"journal":{"name":"LSN: Canadian Law - International (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123115744","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What shapes jurisprudence in international law? States dedicate considerable effort trying to influence not only the outcome, but also the content, of legal rulings. The stakes are high, as these legal opinions can redefine the meaning of the rules. Looking at the World Trade Organization, we ask whether some countries hold more influence over jurisprudence than others, and what such influence depends on. Using text analyses of every country submission in every ruling in the WTO era, we test a number of theoretical expectations. We find that some countries do appear to hold greater sway over the content of rulings than others: a country’s wealth, but especially its legal experience, account for much of this variation. Secondly, countries’ influence over the content of the verdict varies according to how novel the legal issue being ruled on is: states have more influence over the content of the ruling, the less precedent judges have to rely on in terms of prior legal decisions. The salience of the case and judges’ legal experience also follow expectations, as both are shown to take away from countries’ influence. Overall, the degree to which countries’ submissions influence the content of rulings appears to vary systematically. Legal capacity affects not only countries’ ability to file disputes, but also their ability to affect the shape of the resulting jurisprudence.
{"title":"Who Holds Influence over WTO Jurisprudence?","authors":"Mark Daku, Krzysztof J. Pelc","doi":"10.2139/ssrn.2945027","DOIUrl":"https://doi.org/10.2139/ssrn.2945027","url":null,"abstract":"What shapes jurisprudence in international law? States dedicate considerable effort trying to influence not only the outcome, but also the content, of legal rulings. The stakes are high, as these legal opinions can redefine the meaning of the rules. Looking at the World Trade Organization, we ask whether some countries hold more influence over jurisprudence than others, and what such influence depends on. Using text analyses of every country submission in every ruling in the WTO era, we test a number of theoretical expectations. We find that some countries do appear to hold greater sway over the content of rulings than others: a country’s wealth, but especially its legal experience, account for much of this variation. Secondly, countries’ influence over the content of the verdict varies according to how novel the legal issue being ruled on is: states have more influence over the content of the ruling, the less precedent judges have to rely on in terms of prior legal decisions. The salience of the case and judges’ legal experience also follow expectations, as both are shown to take away from countries’ influence. Overall, the degree to which countries’ submissions influence the content of rulings appears to vary systematically. Legal capacity affects not only countries’ ability to file disputes, but also their ability to affect the shape of the resulting jurisprudence.","PeriodicalId":261746,"journal":{"name":"LSN: Canadian Law - International (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121438146","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For the majority of NAFTA tribunals, the host state's failure to respect an investor's legitimate expectations does not constitute a breach of the fair and equitable treatment standard under Article 1105, but is rather a 'factor' to be taken into account when assessing whether or not other well-established elements of the standard have been breached. Tribunals have also repeatedly narrowly qualified the concept of legitimate expectations by requiring, for instance, that the investor's expectations be based on specific commitments made by the host state to have purposely induced its investment and denying that such expectations can be solely based on the host state's existing domestic legislation at the time of the investment.
{"title":"The Protection of Investors’ Legitimate Expectations and the Fair and Equitable Treatment Standard under NAFTA Article 1105","authors":"P. Dumberry","doi":"10.54648/joia2014003","DOIUrl":"https://doi.org/10.54648/joia2014003","url":null,"abstract":"For the majority of NAFTA tribunals, the host state's failure to respect an investor's legitimate expectations does not constitute a breach of the fair and equitable treatment standard under Article 1105, but is rather a 'factor' to be taken into account when assessing whether or not other well-established elements of the standard have been breached. Tribunals have also repeatedly narrowly qualified the concept of legitimate expectations by requiring, for instance, that the investor's expectations be based on specific commitments made by the host state to have purposely induced its investment and denying that such expectations can be solely based on the host state's existing domestic legislation at the time of the investment.","PeriodicalId":261746,"journal":{"name":"LSN: Canadian Law - International (Topic)","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125968546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2002-03-22DOI: 10.1163/9789004482029_022
D. VanderZwaag, Rob Huebert, S. Ferrara
The Arctic marine environment is not pristine, as commonly imagined, but is facing numerous pressures,' the most serious arguably coming from outside the region. Melting of sea ice, linked to global warming, threatens the long-term survival of various species including polar bears and has potential to seriously disrupt ocean currents. Persistent organic pollutants (POPs), including pesticides, industrial compounds and combustion by-products, are transported via air and water currents from regions outside the Arctic and become concentrated in the fatty tissues of animals." The pollutants threaten not only the well being of wildlife but the health of northern residents heavily dependent on country foods. Heavy metals, such as mercury, lead and cadmium, coming from various transboundary sources, including fossil fuel combustion and waste incineration, are also contaminating the Arctic marine environment. Most Arctic bird species are migratory and during the winter months may accumulate various contaminants from industrialized locations further south and pass along pollutants to other Arctic animals when the birds become prey. Ozone holes over the Arctic, while smaller in size and of shorter duration than in the Antarctic, raise concerns with negative effects on marine phytoplankton production and human health effects such as skin cancer.
{"title":"The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tinkering While the Arctic Marine Environment Totters","authors":"D. VanderZwaag, Rob Huebert, S. Ferrara","doi":"10.1163/9789004482029_022","DOIUrl":"https://doi.org/10.1163/9789004482029_022","url":null,"abstract":"The Arctic marine environment is not pristine, as commonly imagined, but is facing numerous pressures,' the most serious arguably coming from outside the region. Melting of sea ice, linked to global warming, threatens the long-term survival of various species including polar bears and has potential to seriously disrupt ocean currents. Persistent organic pollutants (POPs), including pesticides, industrial compounds and combustion by-products, are transported via air and water currents from regions outside the Arctic and become concentrated in the fatty tissues of animals.\" The pollutants threaten not only the well being of wildlife but the health of northern residents heavily dependent on country foods. Heavy metals, such as mercury, lead and cadmium, coming from various transboundary sources, including fossil fuel combustion and waste incineration, are also contaminating the Arctic marine environment. Most Arctic bird species are migratory and during the winter months may accumulate various contaminants from industrialized locations further south and pass along pollutants to other Arctic animals when the birds become prey. Ozone holes over the Arctic, while smaller in size and of shorter duration than in the Antarctic, raise concerns with negative effects on marine phytoplankton production and human health effects such as skin cancer.","PeriodicalId":261746,"journal":{"name":"LSN: Canadian Law - International (Topic)","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115190974","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2000, Adam Dodek surveyed the terrain of Canadian legal ethics and his report was bleak. Few Canadian law schools were offering courses in the subject and the legal scholarship in the area was sparse. Until the 1990s, there was only a single book on Canadian legal ethics. In the 1990s, however, a modest increase in interest in legal ethics was spurred due to the revision of the Canadian Bar Association's Code of Professional Conduct in 1987 and the Supreme Court of Canada's path breaking decision in Martin v. Gray dealing with conflicts of interest. The author describes a "first generation of scholarship" in Canadian legal ethics characterized which is largely descriptive rather than analytical and focuses on the ethical codes. The possibility of a "second generation" is reviewed positively by the author, welcomed by the publication of Allan Hutchinson's book Legal Ethics and Professional Responsibility, which the author terms "the true breakthrough in the scholarship of legal ethics in Canada" because it was the first monograph in Canada to apply a critical analysis to the core issues of legal ethics. Dodek laments the dearth of empirical research on the legal profession in Canada and concomitant Canadian tendency to rely on American and British scholarship. He reviews several recent British works in the area as providing examples of where the scholarship of Canadian legal ethics can go. The article ends with a challenge to the Canadian legal establishment to begin to take legal ethics seriously.
{"title":"Canadian Legal Ethics: A Subject in Search of Scholarship","authors":"A. Dodek","doi":"10.2307/826036","DOIUrl":"https://doi.org/10.2307/826036","url":null,"abstract":"In 2000, Adam Dodek surveyed the terrain of Canadian legal ethics and his report was bleak. Few Canadian law schools were offering courses in the subject and the legal scholarship in the area was sparse. Until the 1990s, there was only a single book on Canadian legal ethics. In the 1990s, however, a modest increase in interest in legal ethics was spurred due to the revision of the Canadian Bar Association's Code of Professional Conduct in 1987 and the Supreme Court of Canada's path breaking decision in Martin v. Gray dealing with conflicts of interest. The author describes a \"first generation of scholarship\" in Canadian legal ethics characterized which is largely descriptive rather than analytical and focuses on the ethical codes. The possibility of a \"second generation\" is reviewed positively by the author, welcomed by the publication of Allan Hutchinson's book Legal Ethics and Professional Responsibility, which the author terms \"the true breakthrough in the scholarship of legal ethics in Canada\" because it was the first monograph in Canada to apply a critical analysis to the core issues of legal ethics. Dodek laments the dearth of empirical research on the legal profession in Canada and concomitant Canadian tendency to rely on American and British scholarship. He reviews several recent British works in the area as providing examples of where the scholarship of Canadian legal ethics can go. The article ends with a challenge to the Canadian legal establishment to begin to take legal ethics seriously.","PeriodicalId":261746,"journal":{"name":"LSN: Canadian Law - International (Topic)","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129152015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The 1967 Outer Space Treaty is the foundational framework of international space law that has succeeded in effectively governing outer space. However, it is becoming increasingly possible that a major space power, or a group of States, may consider withdrawing from the Outer Space Treaty, particularly in view of the current trend towards nationalistic political populism and isolationistic foreign policies to selectively withdraw from certain key international institutions and treaties. The Outer Space Treaty could be one such treaty, especially in relation to the exclusive national exploitation of space-based natural resources by private entities, and threats to national security. Such withdrawals would likely have serious implications for global space governance, which is essentially based on this Treaty. This paper critically addresses some of the most serious legal issues related to the void that such withdrawal might create in the prevailing international governance regime for outer space.
{"title":"A Vital Artery or A Stent Needing Replacement? A Global Space Governance System without the Outer Space Treaty?","authors":"Ram S. Jakhu, S. Freeland","doi":"10.2139/ssrn.3351503","DOIUrl":"https://doi.org/10.2139/ssrn.3351503","url":null,"abstract":"The 1967 Outer Space Treaty is the foundational framework of international space law that has succeeded in effectively governing outer space. However, it is becoming increasingly possible that a major space power, or a group of States, may consider withdrawing from the Outer Space Treaty, particularly in view of the current trend towards nationalistic political populism and isolationistic foreign policies to selectively withdraw from certain key international institutions and treaties. The Outer Space Treaty could be one such treaty, especially in relation to the exclusive national exploitation of space-based natural resources by private entities, and threats to national security. Such withdrawals would likely have serious implications for global space governance, which is essentially based on this Treaty. This paper critically addresses some of the most serious legal issues related to the void that such withdrawal might create in the prevailing international governance regime for outer space.","PeriodicalId":261746,"journal":{"name":"LSN: Canadian Law - International (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131159518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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