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Against Settlement in Transnational Business and Human Rights Litigation
No full textIn “Against Settlement,” Owen Fiss argued that settlement may not always be the optimal result of civil suits, particularly those that involve novel or ambiguous areas of law or ostensible power imbalances. That work spurred a range of scholarship around the merits and demerits of settlement. And although the settlement versus litigation debate is now almost four decades old, its currency persists in common law systems in which courts are, at times, called upon to expand or even re-envision doctrines or procedural rules. This article revisits that debate. It applies “Against Settlement” to transnational business and human rights litigation that has, over the past few decades, resulted in a number of high-profile civil claims across the common law world. In the context of that area of litigation, adjudication on the merits of a claim has benefits beyond the specific litigants involved. I focus on three transnational business and human rights case studies, all of which affirm one or more aspects of Fiss’s argument that the notion of settlement as a systemic solution ought to be challenged. First, I address how the October 2020 settlement in Nevsun Resources Ltd v Araya further obscures what continues to be a murky intersection of customary international law and Canadian common law. Second, I look at United Kingdom litigation around Barrick Gold’s labour practices in East Africa. In that instance, settlement has been ineffectual to stop the mining giant from continuing to engage in harmful practices that contribute to personal and environmental harm. And third, I discuss how the settlement in Garcia v Tahoe Resources Inc is an example of transnational corporate defendants side-stepping accountability when they settle out of court, even if they publicly acknowledge wrongdoing. The case studies suggest that Fiss’s argument remains relevant and, to the extent it can be operationalized, it should be taken seriously, despite the fact that Alternative Dispute Resolution (ADR) mechanisms have become a panacea for problems associated with state-based judicial dispute resolution processes
Legal Realism, Legal Positivism, and Determinacy
No full textIt is a commonplace that the legal realists argued that law is deeply indeterminate. According to this familiar account, the legal realists insisted that legal materials don’t constrain judges, who are therefore free to decide cases in almost any way they want. An influential argument has argued that the only way to explain this view is by showing that the legal realists presupposed a legal positivist theory of law. This Essay offers a different understanding of the relationship between realism, positivism, and determinacy, challenging this interpretation of the realists as both historically false and as philosophically unwarranted. I provide many examples showing that the prevailing view that the legal realists thought law was deeply indeterminate is mistaken. As part of this argument, I contend that one of the best-known realist articles has been widely misunderstood. Typically read as showing that judges are free to interpret statutes in almost any way they want, its actual message was almost the exact opposite, seeking to show how law can be determinate despite competing theories of interpretation
Book Review - Completing Humanity: The International Law of Decolonization, 1960–82. By Umut Özsu. Cambridge, UK: Cambridge University Press, 2024. Pp. xxiii, 245. Index.
No full textThe AI-Copyright Trap
Full text linkAs AI tools proliferate, policy makers are increasingly being called upon to protect creators and the cultural industries from the extractive, exploitative, and even existential threats posed by generative AI. In the haste to act, however, they risk running headlong into the Copyright Trap: the mistaken conviction that copyright law is the best tool to support human creators and culture in our new technological reality, when in fact it is likely to do more harm than good. This is a trap in the sense that it may satisfy the wants of a small group of powerful stakeholders, but it will harm the interests of the more vulnerable actors who are, perhaps, most drawn to it. Once entered, it will also prove practically impossible to escape. I identify three routes into the copyright trap in current AI debates: first is the “if value, then (property) right” fallacy; second is the idea that unauthorized copying is inherently wrongful; and third is the resurrection of the starving artist trope to justify copyright’s expansion. Ultimately, this article urges AI critics to sidestep the copyright trap, resisting the lure of its proprietary logic in favor of more appropriate routes towards addressing the risks and harms of generative AI
Strikes and the Struggle for Democracy
No full textThe right to strike is fundamental to the development and maintenance of democratic forms of government. In struggles to construct and defend democratic regimes, strikes, including general strikes, are often an important weapon. In established democracies, the right to strike can aid the spread of democratic decision-making in workplaces and the wider economy, serving indirectly to strengthen participation and confidence in political processes and institutions. And it can underpin systems of collective bargaining that function to narrow income and wealth inequalities, in a manner that is conducive, if not necessary, to the maintenance of democratic government. Wherever the right to strike is restricted, undermined and made more difficult to exercise, so too is the capacity of ordinary citizens decreased to defend, maintain and extend democratic values, practices and institutions
Disambiguating the Wrongs of Racial Profiling in Policing and Championing Their Structural Remediation: A Reply
No full textCANADIAN LAW JOURNALS have never been known for going out of their way to facilitate direct conversations between legal scholars working on cognate issues. However, if there is anything to the old liberal adage that the truth is more likely to emerge from the civil yet robust debating of competing ideas, the lack of opportunities for holders of rival views to respond, in real time, to each other’s arguments is deplorable. Therefore, I wish to commend the Osgoode Hall Law Journal for convening this timely scholarly exchange on the problematic phenomenon of racial profiling in Canadian policing and, more specifically, the under-explored question of how courts should respond to it in view of Canada’s distinct legal framework. I also wish to thank Terry Skolnik, Fernando Belton, and Jeanne Mayrand-Thibert (hereinafter SBMT) for agreeing to engage in this dialogue
Improper Use of Tax Treaties and Source Taxation: Policy, Practice and Beyond
No full textThe question of improper use of tax treaties (or treaty shopping) defies a simple or straightforward answer. The line between “proper use” and “improper use” a tax treaty depends on the determination of the intended use of a treaty provision by Contracting States (i.e. the common intention as well as the object and purpose of the treaty provision). As a treaty interpretation issue, that determination varies from country to country. Furthermore, the extent of taxpayers’ right to tax planning and expectation of tax certainty also varies across countries. Finally, the effect of domestic general-anti-avoidance rules (GAARs) and the new principal purpose test (PPT) in treaty shopping cases remains unclear. Drawing on 43 reports from IFA branches and the European Union, landmark court decisions and scholarly debates, this paper provides a comprehensive overview of how source states deal with treaty shopping and offers some predictions about the impact of the PPT as a “global minimum standard” in addressing treaty shopping
What is the Standard of Review for (Mixed) Constitutional Questions?
No full textAccording to the framework for selecting the standard of review in civil appeals developed in Housen v Nikolaisen, questions of mixed fact and law are reviewed on a standard of palpable and overriding error. This framework applies to allegations that a statute is constitutionally invalid. However, in Société des casinos du Québec inc v Association des cadres de la Société des casinos du Québec, the Supreme Court held that when a statute is challenged as unconstitutional before an administrative tribunal, questions of mixed fact and law are subject to a correctness standard on judicial review as an exception to the general presumption of reasonableness. Société des casinos thus introduces a schism into public law doctrine on the standard of review for mixed constitutional questions. In this article, we expose this schism before exploring possible ways of repairing it. One proposal is to follow the lead of some provincial appellate courts and hold that Société des casinos impliedly overrules Housen such that mixed constitutional questions should be reviewed on a correctness standard. Another is to regard the claim about such questions from Société des casinos as per incuriam because it did not advert to Housen’s claim to the contrary. Therefore, the approach from Housen prevails. We discuss advantages and disadvantages for each proposal, operating under the assumption that unity in standard of review doctrine is preferable to bifurcation. We ultimately remain neutral on which is superior and allow the reader to draw their own conclusions
Remedies for Unreasonable Administrative Action after Vavilov
No full textThis article comments on Pepa v. Canada (Citizenship and Immigration), arguing that it departs from the Supreme Court\u27s previous guidance on remedies in an unprincipled manner. The article outlines the remedial framework established in Canada (Minister of Citizenship and Immigration) v. Vavilov, traces its development over the past five years, discusses key departures from the general rule of remittal, and highlights the principles these departures reflect. It then examines the approach to remedies adopted in Pepa. This assessment shows that the Pepa majority\u27s invocation of the single reasonable interpretation exception to the general rule of remittal departs from the core Vavilov values of restraint, deference, justification, and respect for administrative action. In this sense, Pepa does not fit the pattern of principled exceptions seen in earlier cases. Rather, it is a case in which remedial practice and principles are out of alignment. As a result, while Pepa is a strong example of persuasive reasonableness review, its application of the law of remedies should be read with caution