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Canadian Acceptance of International Commercial Arbitration
Get PDFA few years ago it would have been impossible to speak of Canadian acceptance of international commercial arbitration. Canada had not adhered to any international convention on arbitration, and Canadian legislation did not specifically regulate arbitration in commercial dealings or when it involved some non-national element. There was no federal enactment on the subject. Canadian provincial legislation, whether the civil law of Quebec or the common law of the rest of Canada, had not greatly evolved from the 19th century position expressed in legislation based upon the legal traditions of France and the United Kingdom of the same period. No more than a handful of judicial decisions had been rendered in Canadian courts involving the enforcement of foreign arbitral awards. There was little doctrinal writing on the topic. Institutional structures designed to assist in the implementation of arbitration agreements were no more than local organizations whose primary concern was domestic arbitration within local communities or specialized trade associations. Canada has recently gone through a remarkable transformation on all of these fronts. Since 1986 its position has evolved to the point where it is, indeed, appropriate to speak of a Canadian acceptance of international commercial arbitration. There have been dramatic developments in the legislative ordering of arbitration. New institutional facilities have been set up to accommodate the specific needs of those implicated in the organization of international arbitrations involving commercial interests. The topic, moreover, is one now claiming the fresh attention of members of the Canadian legal community. All of these developments are of interest to those generally concerned with the evolution of Canada\u27s international trade law. They may also be of particular interest to those who are exploring the legal implications for the private sector of the bilateral free trade agreement between Canada and the United States. While the renewal of the Canadian position on international commercial arbitration has not been directly linked to the movement in promotion of free trade, it is only natural to enquire whether these developments in the law of arbitration may assist in the resolution of disputes arising between the commercial interests in the private sector on both sides of the border that will receive new impetus if the Free Trade Agreement is implemented in both countries. This study will therefore summarize the new legislative framework that has been put in place in Canada with respect to international commercial arbitration (Part II) and draw attention to the existence of newly formed institutional facilities designed to accommodate the organization of international arbitrations (Part III). Some concluding reflections are devoted to the specific considerations that are prompted by the possibility of using arbitration as a mode of dispute resolution within the context of Canada-U.S. trade in the private sector (Part IV)
The Problem of Third-Party Consent in Fourth Amendment Searches: Toward a Conservative Reading of the Matlock Decision
Get PDFIn United States v. Matlock, the United States Supreme Court delivered its most recent and comprehensive statement on the doctrine of third-party consent. Under the doctrine, police may search a defendant\u27s home or effects without first obtaining a judicially issued search warrant. Instead of this traditional prerequisite for a valid fourth amendment search, the police need only have the voluntary consent of a third person who possesses common authority over or a sufficient relationship to the area to be searched. At that point, the defendant\u27s own consent becomes largely irrelevant. Both the United States and Maine constitutions provide protection against unreasonable searches and seizures by the government and its agents. The police must obtain a warrant from a neutral and detached magistrate, particularly in cases in which the search will intrude upon the privacy of the home. Over time, this general warrant requirement has been qualified by a few narrowly drawn exceptions: searches under exigent circumstances, searches incident to arrest, automobile searches, stop and frisk searches, and administrative searches. Each of these exceptions has been justified by reference to some countervailing state interest that would make the securing of a warrant either unsafe, impractical, or a threat to the viability of the evidence seized. This state interest is then balanced against the potential intrusiveness of such a search. One of the major exceptions to the warrant requirement is consent, wherein the suspect voluntarily waives his fourth amendment rights. Unlike third-party consent, the suspect is presumed to have a vested interest in protecting his or her own constitutional rights. Once effectively waived, the search can proceed without a search warrant and without probable cause. From this basic principle, the next analytical step for the Court was to permit other persons impliedly or vicariously to waive the suspect\u27s rights. This agency model was the earliest proposed justification for third party consent
The Government Contract Defense: Should Manufacturer Discretion Preclude its Availability?
Get PDFThe government contract defense developed in cases involving suits against private contractors for damages arising out of the performance of government public works projects. These cases held private contractors immune from liability for damages necessarily incident to the performance of such projects. In several recent cases, manufacturers have been allowed to raise the government contract defense as a bar to liability for injuries caused by design defects in military products supplied to the United States government. In two of these cases, the defense barred liability on behalf of military suppliers who merely executed the government\u27s mandatory design specifications. In subsequent cases, however, courts have held the defense to be available to manufacturers who exercised discretion over the allegedly defective aspect of the product\u27s design.This Note examines those cases holding that the government contract defense may shield a military supplier from design liability. It concludes that the defense should not be available in any case where the manufacturer exercised discretion with respect to the alleged design defect. To allow the defense in such circumstances is inconsistent with the rationale underlying the government contract defense as developed in the public works cases. Moreover, an analysis of the competing public policy considerations leads to the conclusion that military suppliers should not be immune from liability for injuries caused by design flaws which they had discretion to correct
Application of the Federal Securities Acts to the Sale of a Closely Held Corporation by Stock Transfer
Get PDFThe purchase and sale of a closely held corporation is a commonly occurring transaction which may be accomplished by a transfer of stock or a transfer of assets. Structuring such a transaction as a sale of stock, however, may offer certain advantages not attainable if the transaction is structured as a sale of assets. For example, non-assignable contracts and leases, not transferable with a sale of assets, may pass to the transferee of corporate stock. The transferor generally will be absolved of all of the enterprise\u27s liabilities since, by law, they pass with the transfer. Transferors subject to compliance with Article 6 of the Uniform Commercial Code, if they sell certain assets, are not so subject if the same assets are transferred by a sale of stock. A further consideration favoring a stock transfer is the fact that a transfer of assets may involve difficult and time-consuming transactional tasks, such as the valuing of each asset and the perfecting of titles to various items of real and personal property. Transfers of titles to assets may, in turn, subject the transaction to local transfer, sales, and recording taxes. In contrast, a transfer of a business by a sale of stock may be effectuated simply by transferring the ownership of the stock certificates on the books of the corporation. A stock sale may offer, then, a less complex, less expensive means of transferring a business than does a sale of assets. Effectuating the sale of a corporation by stock transfer, however, raises concerns about the application of the federal securities laws to the transaction, because sales of securities generally are subject to the provisions of the Securities Act of 1933 (the Securities Act) and the Securities Exchange Act of 1934 (the Exchange Act). In particular, under the Securities Act, sellers of securities are required to register such sales or find an exemption from the requirement of registration, if the transaction falls within the jurisdictional scope of the Act. The sale of a closely held corporation by stock transfer, however, typically can be consummated without registration. A potentially more important consequence of structuring such a transaction as a sale of stock would be the possibility of an allegation of fraud under the Securities Act or the Exchange Act. A suit under either or both of these Acts would allow a plaintiff a federal forum, which may be more advantageous than the state forum which would hear an allegation of common law fraud. Further, federal securities law provisions may be more advantageous to plaintiffs since, generally speaking, they are broader in scope than common law remedies
State Courts\u27 Interest in Federal Rulemaking: A Proposal for Recognition
Get PDFAs we approach the half-century anniversary of the adoption of the Federal Rules of Civil Procedure, we should take stock of the extent that they have served as a model for state rulemaking. At least thirty states, plus the District of Columbia and Puerto Rico, now have civil rules substantially identical to the federal rules. Of the remaining states, only three have statutes or rules of civil procedure that bear little or no resemblance to the federal model Even those states such as Illinois, Michigan, New York, and Pennsylvania that have not modeled their civil procedure generally on the federal rules have nonetheless adopted comparable provisions to govern certain matters as, for example, joinder of parties, class actions, or discovery. Thus, the Federal Rules of Civil Procedure have come to serve the same function that is served in other fields of the law by the work product of the National Conference of Commissioners on Uniform State Laws. The federal civil rules are de facto model rules for state rulemakers. A like role has been played only slightly less universally by the federal criminal and evidence rules
Constitutional Issues Raised by the Civil-Criminal Dichotomy of the Maine OUI Law
Get PDFMoving to the forefront of a national trend, the Maine Legislature undertook a thorough reform of its operating under the influence (OUI) law in 1981. The new statute was billed the toughest in the nation, largely because of a provision for mandatory prison sentences. The statute\u27s most radical provision is not the mandatory prison term, however, but a section which gives prosecutors the option to treat less egregious first offenses as civil infractions rather than crimes. The section generates the broad issue addressed by this Comment: may trial by jury and other constitutional protections formerly afforded OUI defendants be denied by the unreviewable election of the prosecutor to initiate civil rather than criminal proceedings? The issue is engendered by the interaction of two analytically separable components of the new statute: the civil provision, which purports to decriminalize less serious offenses, and prosecutorial discretion. Each is subject to limitations imposed by the federal and state constitutions. Persons charged with a civil infraction are denied constitutional protections, such as trial by jury and proof beyond a reasonable doubt, that attach to criminal proceedings. Legislatures may not take away these rights merely by labeling civil what is in essence a crime. In addition, the scope of any legislative grant of prosecutorial discretion is limited by the constitutional doctrines of separation of powers, equal protection, and due process. The availability of constitutional protections to those charged with a civil infraction was the very issue argued by the parties in State v. Chubbuck, the first appeal under the new OUI law to reach the Maine Supreme Judicial Court. A procedural matter prevented the Law Court from reaching the substantive issue, but the court seemed to invite another such challenge
State v. Sweatt: An Examination of the Current Confusion in Fourth Amendment Standing
Get PDFIn State v. Sweatt the Maine Law Court held that an owner of gems being sold on consignment in a third party\u27s store has standing under the fourth amendment to contest the seizure of the gems. The movants in Sweatt were the targets of several police searches during October and November of 1980. During these searches the police seized tourmaline gemstones which were alleged to have been stolen from Dale Sweatt\u27s former business partner, and miscellaneous personal items belonging to the Sweatts. Subsequently, the Sweatts moved for suppression and return of all these articles. The superior court granted the movants\u27 motion except as to the items seized during the search of a safe in the Sweatts\u27 attorney\u27s office. Both parties appealed. In denying the state\u27s appeal and sustaining the movants\u27, the Law Court ruled that the movants had standing to contest five searches and one seizure. The legality of the warrantless search of the third party\u27s store and the subsequent seizure of the movants\u27 property presented the Law Court with an excellent opportunity to provide fourth amendment standing guidelines to the lower state courts. The issue of the Sweatts\u27 standing to object to the search of the store and the seizure of the gems generated both a majority and a concurring opinion. Neither opinion, however, adequately addressed the standing issue. Thus, the court failed to dispel the current confusion in fourth amendment standing law. This confusion is the result of recent United States Supreme Court decisions which have provided little guidance to federal and state courts on the issue of standing. These recent decisions reflect the Supreme Court\u27s desire to limit the application of the exclusionary rule. The Court has effected this limitation by adopting a vague expectation of privacy standard for standing and discarding the clear, concrete guidelines adopted by the Warren Court. Without concrete guidelines, the state courts have broad discretion to grant or deny fourth amendment standing. Such discretion increases the likelihood of inconsistent and capricious results in fourth amendment standing decisions
Taking Matters into Your Own Hands; Using the Private Rights of Action in UDAP Statutes to Hold Businesses Accountable for Data Breaches
Get PDFThe private rights of action in state unfair and deceptive acts and practices (UDAP) laws present a promising way for consumers to recover after a data breach. Plaintiffs’ attorneys have faced challenges in pleading data breach claims under negligence, unjust enrichment, and state data breach notification theories—significantly their challenges stem from issues with standing. UDAP statutes, modeled after s.5 of the FTC Act, present a plausible path to recovery for plaintiffs, with more success in regard to issues of standing. This paper will analyze UDAP claims in four different states and explore the success plaintiffs have had so far, and what areas of the law still need to develop for continued success
Examining Netchoice and Murthy: Content Moderation in the Hands of the Supreme Court
Get PDFThe right to free speech is often justified by the idea that an undisturbed marketplace of ideas is an essential ingredient for a healthy democracy. While in many cases we may believe the views espoused by that speech are incorrect, ignorant, or even harmful, those reasons do not justify silencing those views. In 2024, there is a clear social divide between social media platforms’ content-moderation practices. On one side, anti-moderation advocates opine that social media platforms have a distinct and pervasive bias in moderating user content and viewpoints indiscriminately. On the other side, many advocates contend that social media platforms are not sufficiently engaging in content-moderation efforts, contributing to the proliferation of hate speech, misinformation, and hazardous speech, which undermine democracy. As such, there are two drastically different positions: groups promoting more content moderation and suppression of speech online in contrast to others advocating that social media platforms should uphold free speech values by taking a more restrained approach in their content-moderation practices. “In the end, both sides blame large social media [platforms], but offer little in terms of bipartisan consensus on how to move forward.” Whether allowing social media platforms to moderate content as they please or forcing social media platforms to protect the free flow of all speech and restricting their moderation activities is the right solution is debatable. This article does not take a stance on which position is correct but instead focuses on analyzing recent governmental attempts to regulate social media platforms’ content moderation practices. During the 2023-2024 term, the Supreme Court will hear two cases with the capacity to transform how social media platforms moderate content, and the structure of the internet as we know it. As this article will demonstrate, the First Amendment generally prohibits the government from passing laws that compel or restrict social media platforms from moderating content in certain ways. Yet, in certain scenarios, the government may be able to legitimately impose ‘must-carry’ obligations on social media platforms to host the content of political candidates or journalistic enterprises. To that end, the government is also generally prohibited from coercing or threatening social media platforms to moderate content in certain ways, or on certain topics. While these topics are complex (and this article seeks only to scratch the surface), this article provides a baseline on when, and how, the government can influence social media platform content-moderation practices