Is the Pedestal-ing of the “Rule of Law” Cause for Concern?

The “rule of law” has been put on a pedestal in international political and development discourse. No other “idea” (I am not quite sure what it is) shares its privileged place in our legal imagination. No other idea, Brian Tamanaha says, has achieved such a “global endorsement”.[1] Thomas Carothers laments that:

One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world’s troubles.[2]

More mental energies need be expended to put the “rule of law” in its place. Internal tensions and ignored controversies need to be better exposed. To begin, we should adopt the most formal, ‘thinnest’ understanding of the rule of law: that laws ought to be prescribed, forward looking, written and made public, relatively clear, non-conflicting, and that adjudicative forums ought to be accessible and impartial.

Understood that way, the ‘rule of law’ is an end-point. It is not a contained principle but a set of general prescriptions that are desirable because of what they do and afford to legal subjects. A legal system that adheres to formal rule of law prescriptions affords individuals the ability to make proper self-regarding decisions, because the consequences of potential courses of action are more ascertainable. Firms don’t make hallowed “life choices”, but that same certainty and stability may induce firms to invest or transact where…

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Economics v. Justice? International Nuclear Liability Regimes

After the recent earthquake in Japan, there has been a global outpouring of sympathy and support. Governments and individuals worldwide have been trying to help Japan recover from the tragedy. Likewise, the world has been on edge regarding the ongoing crisis at the Fukushima I (or Fukushima Daiichi) nuclear power station, as everyone hopes that an even more serious nuclear catastrophe can be avoided.

Yet what about those individuals devoid of empathy or, seemingly, any human emotion? Pseudo-humans so empty and craven that, seeing the Japanese nuclear crisis, they think first and foremost about what the impact will be on the stock market. Self-interested automatons from an economics textbook come to life, who focus only on things that matter – or rather, the thing that matters: money. Whose writing will cater to this audience? The Wall Street Journal? Fox Business News? Amateurs! Come with me, fellow homo economici, and let us cast off this veil of humanity.

Firstly, the crisis in Japan has been playing havoc with the stock market, and that can only mean one thing: investment opportunities! Here’s a great stock pick[1] to get the ball rolling: General Electric. GE built (wholly or in part) half of the reactors at the Fukushima I plant, and the crisis now unfolding has been partially attributed to a design flaw. In reaction to this news, GE’s stock price

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Healthy (or insignificant) minimum price-fixing differences in EU and North America

Unfortunately, this post merely adds to the voluminous commentary on different approaches to resale price maintenance (“RPM”)–minimum price-fixing in particular–between the EU and North America.  Since EU and US changes in RPM rules in 2010 and 2007 respectively, commentators have been clawing into the topic, before judges get the chance to hammer into these different approaches.  Some argue for similarity, but I argue that the difference is (1) healthy and (2) in practice unimportant.

Before addressing those arguments, a little background.

What is RPM? RPM is when a manufacturer controls the prices at which distributors sell goods.  Minimum price-fixing is where the manufacturer sets the lowest price at which distributors can resell goods.

Is minimum price-fixing anti-competitive? The lawyer’s response: “it depends.”  Minimum price-fixing has anti-competitive effects when manufacturers or distributors (a) collude to police cartels or (b) exclude competitors by eliminating their ability to compete by lowering prices.  Minimum price-fixing can however have pro-competitive effects when used to help introduce products, encourage distributor promotions, ensure uniform distribution, enhance experience-related products, and reduce free-riding.

How does EU law approach minimum price-fixing? EU law is not a friendly venue for minimum price-fixing.  Article 101(1)(a) of the Treaty on the Functioning of the European Union (“TFEU”) broadly forbids price-fixing.  The EU Block Exemption Regulation 330/2010 includes minimum price-fixing as…

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Spousal Abuse’s Grave Risk to Children Under the Hague Abduction Convention

My previous post discussed the potential impact on women of the Hague Convention on the Civil Aspects of International Child Abduction, with a focus on ne exeat orders as rights of custody.  I briefly mentioned the problems surrounding women who flee from domestic violence, when their abuser uses the Convention to affect a child’s return to the previous habitual residence.

In short, the Convention requires a court to return a child to the child’s previous habitual residence when someone–almost always a parent–abducts the child across borders.

While the Hague Abduction Convention most often provides a valuable and useful remedy, spousal abuse victims face particular difficulties when they leave a country with their child to avoid further abuse.

The Convention provides an exception to return under Article 13(b) when returning the child to the previous habitual residence will cause a grave risk of harm or an otherwise intolerable situation for the child.

While at first glance this would appear to provide safety for mothers who cross borders with their children to flee spousal abuse, this has not proved true in international case law.  Instead, courts have construed this exception so narrowly that in many cases courts have sent these children–and in effect their mothers as well– back to the previous habitual residence where the abuser lives to determine custody arrangements.

This practice can be observed in case law from…

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Is proselytizing a basic human right?

Former British prime minister Tony Blair addressed McGill students on Friday as part of his Faith and Globalization initiative, asking them, “Does religious faith become a means of providing civilizing values to civilization and thereby be a force of progress, or does religious faith become a badge of identity in opposition to those who aren’t of the same faith?”  That is, is the continuing proliferation of religious identities good, bad, or simply inevitable? He proceeded to say that he sees this as the dominant question of the 21^st century.

Previously, I have attempted to explore the limits of freedom of religion in Canadian and international law; I now return to this subject in order to consider the question of whether freedom of religion encompasses the right to proselytize one’s faith. While an exhaustive examination of the issue would doubtless require a far more detailed analysis than I am able to provide here, I hope to provide at least an overview of the relevant considerations.

Legislative provisions on religious proselytism vary widely from one country to another. Most western countries impose no specific constraints on proselytization, leaving its regulation to social norms of conduct or religious bodies themselves. A number of countries, such as Greece and Nepal, ban the activity outright and threaten transgressors with criminal sanctions. Many countries impose limits on who can proselytize: it is illegal for non-Muslims to…

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Special Contribution : Moving Forward with Corporate Environmental, Social and Governance Disclosure

Whether the issue is climate change, biodiversity, labour and supply chains, or international human rights, corporate sustainability disclosure is of increasing relevance to shareholders.  In a recent report submitted to Ontario, Canada’s minister of finance, the Ontario Securities Commission (OSC) made various recommendations regarding corporate reporting that may be controversial to some, but are a step in the right direction.

The report follows the Ontario Legislature’s unanimous approval of a private member’s resolution calling on the province to review existing reporting requirements and issuers’ compliance.

The resolution asked the OSC to undertake a broad consultation in order to “establish best practice corporate social responsibility…and environmental, social and governance…reporting standards”. In response, the OSC – supported by the Hennick Centre for Business and Law at York University – convened a multi-stakeholder roundtable and held various consultations with interested parties.

The reporting of material environmental, social and governance (ESG) information should be viewed as an integral part of a businesses’ overall risk management strategy. With this information, shareholders are in a better position to assess financial risks and to allocate capital to firms best suited to mitigate these risks. Disclosure also encourages stakeholder dialogue. This dialogue, over time, informs internal decision-making and provides a critical framework for identifying both risks and opportunities. This, in turn, can drive performance, enhance an organization’s reputation and strengthen the core elements of its…

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Two Worlds Apart: Canada Supports the Rights of a Niqabi Woman while France Approves Law Banning the Niqab in Public

If there existed an award for Controversial Clothing Garment of the Year, surely the niqab would grab the prize for 2010.[1] The niqab took the spotlight earlier this year when Quebec proposed legislation that would prohibit the wearing of the niqab for an individual seeking a government service. After a pause of several months, the hearing on the proposed legislation resumed on Tuesday (19 October 2010), though this issue has temporary drifted away from national interest.

However, the niqab has been garnering increasing attention elsewhere. In the past two weeks, two important decisions were released concerning the niqab. On 13 October 2010, the Ontario Court of Appeal opined that a niqab woman’s right to wear to the niqab in a sexual assault trial must be given due consideration. A week earlier in France, the Constitutional Council gave its approval on the constitutionality of legislation banning the niqab in public spaces. Admitted, the two decisions do not touch on exactly the same matter. Nonetheless by contrasting the decisions, one starts to sense a “Canadian flavor” in they way our courts address controversial issue where freedom of religion is implicated. The Court of Appeal’s strong push for reconciliation of rights, as well as its interest in affording a niqabi woman substantive (over formal) equality, provides some indication that multiculturalism is actively playing a role in the way the Canadian…

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Legal Pluralism in Afghanistan Revisited: From Theory to Practice

In one of my earlier blogs focusing on Afghanistan, I spoke about the possibility of reconciling the various systems which exert authority within the country. The next question that arises is what this actually mean for Afghanistan.

Framework for Navigating Normative Variations

In moving from theory to practice, it may be most fruitful to take a step back from the various abstract and, at times, esoteric discussions of legal pluralists – a discussion based in legal anthropology – and step into the shoes of the practicing lawyer. The realities she faces day-to-day shed light on the task of navigating through competing normative realities. The writing of Professor Singer, in this regard, is particularly insightful:

Many philosophers seek theories that dissolve incommensurabilities by appealing to higher order norms or metatheories that provide rational priorities among competing values. Lawyers and judges and law makers, on the other hand, are rarely beguiled by monistic theories. We make utilitarian arguments; we talk about rights, justice, fairness; we are concerned to define the appropriate institutional role for judges in a free and democratic society; we tell the story; we resort to process to solve substantive problems. Moreover, we are skeptical about the ability of rigid priority rules to determine just outcomes in specific cases. In short, we use multiple normative strategies, unashamed that we are unable to find killer arguments that put all

…

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Corruption of Waldo: Where in the world is President Umaru Yar’Adua

The Nigerian president, Umaru Yar’Adua, has been away from his country since November 2009.  No one has seen him. The official line is that he is in Saudi Arabia receiving treatment for an undisclosed illness. On January 12th 2010, he finally acknowledged his countrymen’s concern by calling BBC radio to make a brief public statement to prove that he was not yet beyond death’s door. On January 13th, a federal court declared that Vice President Goodluck Jonathan can perform all presidential duties while the president is away. However, the judgement is ambiguous: Jonathan’s new role lends him no substantive constitutional authority to be acting president, except that transmitted to him by the president.

What has been most bewildering about the president’s absence is the subtle yet apparent lack of leadership that continues to cloud Africa’s most populated nation. Legally, the January 13th ruling was supposed to put the country back on track. Yet, the judgement has  failed to soothe tempers. As recently as January 27^th 2010, the Nigerian cabinet and Senate continue to be at odds regarding who is governing their country. The question seems to remain: how do we account for the governing activity from November 2009 to now? In particular, what of the 2010 budget that is being negotiated in the president’s absence? It is true that in the time Yar’Adua has been away,…

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International Competition Regime: New Game. New Rules?

In a recent judgment given by the Australian Federal Court, Singapore Airlines Ltd v Australian Competition and Consumer Commission ([2009] FCAFC 136 (2 October 2009)), once again the tension between increasingly globalised commercial practices on the one hand and domestic antitrust laws on the other is becoming evident. The Australian Court was required to decide whether the alleged unlawful price fixing which took place in the international markets – outside of the physical boundaries of Australia – violated Australian antitrust laws, and if so, whether the parties could be prosecuted by Australian authorities.

The Australian Court decided that international anti-competitive activity which takes place wholly outside of Australia may still influence the Australian market, and thus Australian law may possibly apply. It should be noted that this approach is by no means unique or new, as other domestic antitrust authorities are empowered by law to prosecute international anti-competitive activity.[1] But when examining the above-mentioned tension between the two conflicting forces, domestic regulation and an international problem, a more complex picture is revealed.

On the one hand, it is true that due to the lack of an international governing body or antitrust prosecution authority, the Australian authorities do not have much choice but to try and regulate international anti-competitive activity which affects Australian markets.  On the other hand, such an approach is not without…

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