Asper Review of International Business and Trade Law
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Asper Review of International Business and Trade Law: Special Edition - Cybersecurity and Law Firms
No full textSeveral years ago, I came across an American Bar Association guide to cybersecurity for lawyers. It occurred to me that there should be a Canadian equivalent. With the help of my student co-authors, we have attempted to do just that by providing and collating expertise on a wide range of matters, some background information about the security issues involved, and information about the legal norms implicated. We do not presume to offer legal advice as counsel about any particular situation, but rather compose a reference work that can help both lawyers and citizens better recognize and manage various cybersecurity issues. The overall perspective embodied in this book is briefly stated in this preface:
A key aspect to our overall approach is that lawyers consider the whole range of professional obligations and legal norms bearing on cybersecurity issues, as opposed to a narrowminded perspective. Client privacy and security are legally protected and morally compelling, but there are trade-offs with other norms – for instance, the ethical duty to serve a client efficiently and effectively. Near-perfect cybersecurity might be achieved by avoiding the use of emails or text messages to contact a client; however, it would then be difficult to communicate on a timely and effective basis with many clients. Furthermore, there may be some added security risks when a lawyer working at home is able to access their office computer remotely but prohibiting such access might then interfere with the lawyer’s ability to serve the client’s needs, especially urgent ones. Security might be enhanced by limiting information to a few key personnel, but if those personnel quit, become ill or die, the organization may find that information becomes inaccessible to itself as well as potential wrongdoers.
Sometimes security norms are in tension with other norms including those under law society rules requiring retention of client files (for purposes such as holding lawyers accountable in case of client complaints). The challenge for a lawyer is to recognize all the applicable norms involved in addressing cybersecurity and use the necessary ingenuity to comply with all of them to every reasonable extent
The Unconstitutionality of Canada’s Free Entry Mining Systems and the Ontario Exception
No full textThe recent amendments to Ontario’s Mining Act have ushered in significant changes in the way mineral claims are acquired, explored and developed, within the free entry mining system in the province. The amendments, for the most part, aim to ensure that Ontario’s free entry mining regime complies with Aboriginal law, particularly with respect to the duty to consult required under section 35 of the Constitution Act, 1982. Despite the modernization in the law and the improved Aboriginal consultation under the Act, there are academic opinions, which maintain that the amended statute is still unconstitutional. This article makes an incisive review of the modernized Mining Act and its relevant Regulation. It also examines Ontario’s government policy on consultation with Aboriginal peoples. It takes a position different from that of existing academic opinions. It argues that the statute has become constitutionally compliant, especially because of the entrenched statutory scheme for Aboriginal consultation and a scheme for providing an immediate notice of a mining claim registration to any affected Aboriginal people. For these reasons, this article maintains that the unconstitutionality argument that is generally ascribed to free entry systems in Canada does not apply to Ontario\u27s reformed free entry regim
Depecage in the Context of International Upstream Oil and Gas Contracts
No full textDepecage in the Context of International Upstream Oil and Gas Contract
Pre-Incorporation Contracts in Nigeria: The Need for Progressive, Expansive, and Less Restrictive Statutory Provisions
No full textWith the August 7, 2020 introduction of the Companies and Allied Matters Act of 2020 (CAMA 2020) in Nigeria, the tension between preserving confidentiality of the company as opposed to protecting innocent third parties, that has dominated the focus of laws regulating “Pre-Incorporation Contracts” under contemporary company law regimes, remains unresolved—necessitating further elaboration. Therefore, this paper discusses the goal of protecting innocent third parties who may not know that they are contracting with a corporation that either does not exist or may not come into existence at all. Further, along with the need to protect the company, the paper also critiques the legal effect of standard disclaimers and jurisdictional issues, e.g. under section 21(4) of the Ontario Business Corporations Act, or section 14(4) of the Canada Business Corporations Act, respectively, which provides some protection against personal liability in favour of the promoters. The paper submits that section 96 of CAMA 2020 is “dead on arrival” as it is outdated, restrictive, and archaic in light of the progress made under other commonwealth regimes. Using current jurisprudence and statutes on pre-incorporation contracts, the paper identifies areas which require reform under Nigerian law and provides appropriate suggestions
Revolt of the Rich: How Economic Considerations Influence Separatism in the Age of the Supranational Union
No full textThis paper aims to contribute to the understanding of the legal, political and social framework for secession in modern times. It proposes two fundamental dimensions for an analytic framework for understanding the political, social and legal workings of secession movements. One is placing a secession movement in the context of regional and global organizations. The other is exploring whether a secession movement is a “revolt of the rich” rather than an oppressed ethnic minority. This paper focuses on secession movements in Europe in the latter half of the twentieth century.
These dimensions may add to a traditional analysis in some cases. In others, they provide insights that are contrasting, counterintuitive or even surprising. The traditional analysis focuses on a bilateral contest over secession – between a constituent community of a state and the rest of it – rather than placing the tensions in the context of multiple tiers of authority, including local, regional and global organizations. The traditional analytic framework also looks for the source of secessionism in the desire of an ethnic minority to escape identity-based oppression by the majority, rather than the desire of a minority that might be more economically advanced to escape from being impaired in its drive for prosperity by regulatory and redistributive measures secured by the majority
Business-to-Business Electronic Communication in Canada: Reforming Canada\u27s Anti-Spam Legislation
No full textBusiness-to-Business Electronic Communication in Canada: Reforming Canada\u27s Anti-Spam Legislatio
How WTO Jurisprudence Can Help Resolve Interpretive Uncertainties Generated By Canada\u27s Domestic Free Trade Agreements
No full textHow WTO Jurisprudence Can Help Resolve Interpretive Uncertainties Generated By Canada\u27s Domestic Free Trade Agreement
The Hate Speech Debate: the Supreme Court, the Federal Government, and the Need for Civil Hate Speech Provisions
No full textThe Hate Speech Debate: the Supreme Court, the Federal Government, and the Need for Civil Hate Speech Provision
The Applicability of the Personal Information Protection and Electronic Documents Act to De-Indexing Internet Search Engine Results
No full textThe Applicability of the Personal Information Protection and Electronic Documents Act to De-Indexing Internet Search Engine Result
Long Live the Delaware Supreme Court Decisions in Smith v VCan Gorkom, Auerbach v Bennet, and Zapata v Maldonaldo!: Whether the Business Judgement Rule Should Apply in Nigeria
No full textLong Live the Delaware Supreme Court Decisions in Smith v VCan Gorkom, Auerbach v Bennet, and Zapata v Maldonaldo!: Whether the Business Judgement Rule Should Apply in Nigeri