Law In Other Jurisdictions Research Articles

To Govern in the Interest of the Corporation: What Is the Board's Responsibility to Stakeholders Other than Shareholders?

In Canadian business law, directors have a duty to act in the best interest of the corporation, which includes the duty to assess, fairly and equitably, the impact of the corporation”s actions and decisions on its stakeholders.But which of the stakeholders' expectations should be taken into account? How should a board arbitrate between the divergent expectations of different stakeholders? How should the interests of the shareholders be weighed in relation to the interests of the other stakeholders? Ultimately, in whose interests should the directors exercise their responsibility to govern the corporation's affairs?This text attempts to provide answers to these questions, which are deeply perplexing to many directors, by reviewing the relevant law in other jurisdictions, particularly Great Britain and the United States, and then parsing the relevant judgments of the Canadian courts. We also provide guidelines for a board’s decision process when several stakefolders may be impacted by a decision or action of the company.

Using multiple choice questions to examine the content of the qualifying law degree accurately and reliably: the experience of the Qualified Lawyers Transfer Scheme

The Qualified Lawyers Transfer Scheme (QLTS) provides a route for lawyers from other jurisdictions and barristers from England and Wales to qualify as solicitors in England and Wales. One of the three tests in the QLTS, the Multiple Choice Test (MCT), uses multiple choice questions to examine the syllabus of the qualifying law degree together with some pervasive subjects from the Legal Practice Course. This paper examines the MCT in detail. Particular attention is paid to the format and structure of the questions. We describe the detailed editing which each question goes through before it is used, the statistical analysis and review which take place after an exam, and the rationale for these processes. An explanation is given of what reliability and accuracy mean and how they are measured statistically. There is also an explanation of the “Angoff method” by which pass marks are set. Finally, the paper reports on the first four sittings of the MCT and their statistical results including their reliability and accuracy. Use of the multiple choice test, though well established for examining applied knowledge in medicine and in law in other jurisdictions, is a radical departure for the assessment of law in England and Wales. The experience of QLTS has shown that a carefully constructed multiple choice test of a suitable length can assess the qualifying law degree content both reliably and accurately.

Abortion and Conscientious Objection: The New Battleground

This paper examines the vexed issue of conscientious objection and abortion. It begins by outlining the increasing claims to conscientious objection invoked by physicians in reproductive health services. After an examination of developments overseas, the paper turns to the acrimonious debate in Victoria concerning the conscience clause and the ‘obligation to refer’ contained in the Abortion Law Reform Act 2008 (Vic) (‘ALRA’). This paper questions the interpretation by the Catholic Church that the clause breaches its right to freedom of conscience and freedom of religion. We argue that the unregulated use of conscientious objection impedes women’s rights to access safe lawful medical procedures. As such, we contend that a physician’s withdrawal from patient care on the basis of conscience must be limited to certain circumstances. The paper then examines international and national guidelines, international treaties and recommendations of treaty monitoring bodies, laws in other jurisdictions, and trends in case law. The purpose of this examination is to show that the conscientious objection clause and the ‘obligation to refer’ in ALRA is consistent with international practice and laws in other jurisdictions. Finally, the paper turns to the problematic interpretation of conscience and moral responsibility in the context of abortion. We believe that narrow interpretations of conscience must be challenged, in order to incorporate patients’ rights to include the choice of abortion and other lawful treatments according to their conscience. We conclude that the conscientious objection provisions in ALRA have achieved the right balance and that there is no justifiable legal reason upon which opponents can challenge the law.

The Action of Legal Persons in the European System of Human Rights Protection – Collective or Individual Interest?

Abstract Human Rights are accustomed to being linked to individual interests, i.e. to defend the rights of individuals. But the development of their international protection has led to emphasizing new realities. With the globalization of law, the globalization of the subjects of international law has also appeared. If States gradually act collectively thanks to international organizations, individuals seem to follow the same path in forming collective entities named legal persons, which are entitled to rights. The main problem of this situation is defending these rights in front of international courts and, in particular, in front of the European Court of Human Rights. Representing a community leads to defending a collective interest, however, it is not easy to distinguish between the rights of the legal person itself and the rights of the collectivity the legal person is representing. Despite the fiction of the legal person, these entities seem to be collective claimants and consequently to defend a collective interest. Can we conclude that the actions of legal persons before European bodies of Human Rights protection are actions with a collective aim? Indeed this situation implies needing to define which entity retains cited rights and which interest is being defended, that of the individual or that of a collectivity of individuals? This article looks for some answers in the case law of the European Court, which can be considered unequivocal in the light of the case law of other jurisdictions.

Has the conduct-based approach to competition law in South Africa led to consistent interpretations of harm to competition?

The Competition Act and certain recent decisions by the competition authorities are examined here to assess the extent to which South Africa’s conduct-based approach to competition law has led to consistent outcomes in the assessment of effects on competition. This has not been the case in the assessment of anti-competitive effects among customers or resellers when a supplier accused of an anti-competitive action does not compete with its customers. An anti-competitive effect among customers or resellers is treated as anti-competitive when it arises from some form of conduct, such as price discrimination. However, it is not seen as anti-competitive when it arises from a refusal to supply, for example. Possible reasons for South Africa’s conduct-based approach and this inconsistent outcome in the assessment of competition among customers and resellers, including the economic foundations of the relevant approaches and their relationship with competition law in other jurisdictions, are assessed.

Pre-emptive Strike: How Australia is Tackling Outlaw Motorcycle Gangs

In the past three years, new laws have been introduced in four Australian states designed to prevent criminal conspiracies by outlaw motorcycle gang (OMG) members and to disrupt the criminal activities of these gangs. The Australian laws push the boundaries previously set in similar laws in other jurisdictions, in that controls can be imposed because of membership of an organization perceived as a threat by the state. The laws constitute a pre-emptive strike against OMGs. However, there are very real issues about their likely effectiveness, given research suggesting that the primary structures targeted in this legislation, the clubs, are not necessarily the ones that OMG members use to conduct their criminal business. This article explores these issues, and suggests that the reaction of OMGs to this legislation may provide important information about OMG adaptiveness and resilience.

Solicitor-Client Privilege in Canada: Challenges for the 21st Century

This is a Discussion Paper prepared for the Canadian Bar Association. The context for this Discussion Paper is the need to take stock of the state of Solicitor-Client Privilege in Canada in light of developments internationally and at home. There is no single court decision, government action or event that has precipitated the need for reflection but that should not be an invitation for complacency. The Supreme Court of Canada’s jurisprudence is consistent and predictable in strongly protecting Solicitor-Client Privilege (the Privilege). It generally aligns with the positions taken by the Canadian Bar Association (CBA) before the high court. However, the court’s jurisprudence does not provide an adequate framework for addressing the multitude of issues that currently exist and that are likely to arise regarding the Privilege. Moreover, the Canadian approach to the Privilege is in many ways at odds with how the Privilege is treated in other common law jurisdictions. In an increasingly globalized legal world, the time is ripe to identify issues for the Privilege in Canada and begin to start to think about how they should be addressed. This is the raison d’etre of this Discussion Paper.Over the past three decades, Solicitor-Client Privilege in Canada has been elevated from a limited evidentiary privilege into a quasi-constitutional right. Wigmore’s classic definition of the Privilege continues to prevail: “Where legal advice of any kind is sought from a professional legal adviser, in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the privilege be waived.” In a series of cases between 1999 and 2002, the Supreme Court of Canada greatly strengthened the Privilege. It is now best understood as a quasi-constitutional right o communicate in confidence with one’s lawyer which can be invoked in any circumstances. Solicitor-Client Privilege in law and in practice looks very different in other jurisdictions. In a globalized legal world, international pressures will impact on the Privilege in Canada and Canadian clients and lawyers will engage in transnational transactions or litigation where the Privilege will apply differently. Moreover, Canadian courts are likely to consider the law in other jurisdictions either because foreign law will be directly engaged or because of the need to consider persuasive authority in other common law countries to deal with new Privilege issues for which there is a dearth of Canadian authority.

Judicial oversight of policing: investigations, evidence and the exclusionary rule

Police procedures and practices in the investigation of crime are shaped by many things. One particularly important constituent part of the development of investigative procedures and practices is the approach of the courts to the admissibility at trial of evidence obtained in a certain manner. While a judge can only address the specifics of whatever cases are brought before him, the judiciary as a whole have a significant role to play in terms of police accountability and governance through their development and application of any exclusionary rules of criminal evidence. This article examines the judicial oversight of policing by way of the exclusion of improperly obtained evidence at trial. Its central focus is on the development and operation of the exclusionary rule in Ireland, though relevant law in other jurisdictions, including England and Wales, the United States, Canada and New Zealand, is also considered. Particular attention is paid to the recent Irish Supreme Court decision of DPP v Cash, and its ramifications for judicial oversight of policing.

Public Law and The Executive

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

Trade sanctions and export controls: A multi-jurisdictional analysis for the energy sector

Supplying goods, technology or services for use in oil and gas projects often raises significant compliance challenges under export control, trade sanctions and antiboycott laws of the supplying jurisdiction. Such laws may restrict the export of goods or technology to specified countries, prohibit trade and financial transactions with specified parties, or impose licensing or other government approval requirements, including conditions on the use of government-issued licenses, before the transaction may proceed. Increasingly, goods or services destined for a single project may be sourced by suppliers from multiple sources around the world, often triggering export control and related compliance issues under the laws of multiple jurisdictions. Historically, compliance with US export control and related laws has been viewed as the most challenging (relative to similar laws of other jurisdictions) by US and non-US companies alike due to the breadth of these laws, their extraterritorial application and aggressive US government enforcement. While US export control and related laws continue to be the most restrictive in many respects and distinctly extraterritorial in their reach, other jurisdictions have in recent years strengthened their export controls and committed significant resources to the enforcement of those controls. Consequently, suppliers of goods, technology or services for the energy sector need to be aware of potential compliance issues not only under the laws of their home jurisdictions but also those of other jurisdictions that participate in the supply chain.

I Am Jack's Radical Self-Degradation: A Pedagogical Argument for the Inclusion of the Indigenous Narrative in the Postmodern Legal Education

An American legal education begins with a first-year curriculum which is largely uniform across the spectrum of institutions: Contracts, Torts, Constitutional Law, Property, Civil Procedure, and the like are considered the requisite basis for the continued study of law. In the course of learning the basic precepts underpinning these areas of law, first-year law students are exposed not only to the majority rules and those which govern the jurisdictions which contain the law school itself, but also minority rules and important lines of alternative reasoning, because incorporating these alternative analyses is critical to providing future practitioners of the law the proper tools with which to practice. It goes without saying that the value gained from exposure to the minority rules is not insignificant, but this is not the end of the discussion of legal pedagogy and the best way to educate legal thinkers.In analyzing legal pedagogy, it is important to determine not only the quality of the instruction, but what it is that is being taught. Of equal importance is the converse – an analysis of what is not being taught. The typical legal education does not usually incorporate an understanding of the nature of the law as a narrative, and further, it reinforces the silencing of alternative cultural narratives, or story-based understandings of legal concepts, in favor of the “color-blind” jurisprudence and pedagogy that is only color-blind in that it only sees white (i.e., non-colored) western narratives as viable. This article explores the value of incorporating native narratives into the traditional legal education, in a manner similar to the study of the common law of other jurisdictions for the purpose of learning basic concepts of law.The article proposes the inclusion of the indigenous narrative in the baseline legal education by including cases from tribal courts in the case method of legal study, and considers this proposal through the lens of Lacanian psychoanalytic theory, specifically as illustrated by David Fincher’s film adaptation of Chuck Palahniuk’s novel Fight Club.

Medical Law in New Zealand

This impressive volume provides a clear and comprehensive statement of medical law in New Zealand. It is edited by Peter Skegg (who has been fairly described as a ‘father’ of English medical law) and Ron Paterson (New Zealand's Health and Disability Commissioner). The book is a collaborative effort by some of New Zealand's leading experts on medical law—its two editors plus Joanna Manning, John Dawson, Nicola Peart, and Warren Brookbanks—to meet the need for an authoritative text for legal and health practitioners and students in New Zealand. It will also be of interest to practitioners and students overseas, for two reasons. First, it makes regular sorties into comparative—not least English, Australian, and North American—medical law. Second, a number of differences between New Zealand medical law and the law in other jurisdictions, not least its system for compensating victims of medical accidents and investigating complaints, make for valuable comparison. The book comprises eight parts dealing with: the regulation of health care in New Zealand and its Code of Patients' Rights; the standard of care; consent; health information; mental health and intellectual disability; the beginning of life; the end of life; and complaints, discipline and compensation. The editors hope to include other topics, such as the right to health care and public health law, in future editions. (Though this edition appeared in 2006, its statement of the law in New Zealand remains relevant.)

The Overseas Exchange of Human Rights Jurisprudence: The U.S. Supreme Court in the European Court of Human Rights

A recent study indicated that even though courts around the world have long looked to the decisions of the U.S. Supreme Court (USSC) for guidance, a diminishing number of foreign courts are citing the writings of American justices. By contrast, foreign courts in developed democracies often cite the rulings of the European Court of Human Rights (ECtHR). However, this study did not specifically examine citations by the ECtHR of USSC decisions. The use by the ECtHR of law of other jurisdictions is now relatively commonplace. This article discusses the use of the individual rights decisions of the USSC by the ECtHR. Included is a discussion of the methodology used by the ECtHR and an analysis of decisions citing USSC decisions where the government loses. This examination adds to the literature on the evolving relationship between domestic institutions and legal norms from extra-jurisdictional sources.

The Black Label: Trade Mark Dillution, Culture Jamming and the No Logo Movement

This article considers the ongoing debate over the appropriation of well-known and famous trade marks by the No Logo Movement for the purposes of political and social critique. It focuses upon one sensational piece of litigation in South Africa, Laugh It Off Promotions v. South African Breweries International (Finance) B.V. t/a Sabmark International. In this case, a group called Laugh It Off Promotions subjected the trade marks of the manufacturers of Carling Beer were subjected to parody, social satire, and culture jamming. The beer slogan “Black Label” was turned into a T-Shirt entitled “Black Labour/ White Guilt”. In the ensuing litigation, the High Court of South Africa and the Supreme Court of Appeal were of the opinion that the appropriation of the mark was a case of hate speech. However, the Constitutional Court of South Africa disagreed, finding that the parodies of a well-known, famous trade mark did not constitute trade mark dilution. Moseneke J observed that there was a lack of evidence of economic or material harm; and Sachs J held that there is a need to provide latitude for parody, laughter, and freedom of expression. The decision of the Constitutional Court of South Africa provides some important insights into the nature of trade mark dilution, the role of parody and satire, and the relevance of constitutional protections of freedom of speech and freedom of expression. Arguably, the ruling will be of help in the reformation of trade mark dilution law in other jurisdictions – such as the United States. The decision in Laugh It Off Promotions v. South African Breweries International demonstrates that trade mark law should not be immune from careful constitutional scrutiny.

Reflecting ecological criteria in laws supporting the Baja to Bering Sea marine protected areas network case study

Abstract Canadian and US marine conservation law, and other related law, was analyzed to determine if it reflected ecological criteria needed to implement connectivity among marine protected areas of the northeast Pacific in the proposed trilateral Baja to Bering Sea (B2B) initiative. The analysis included both nations’ federal laws and those of California, Oregon, Washington, Alaska, and British Columbia. While legal provisions exist already to implement marine protected areas for varying reasons, there is little capacity in most laws to create connectivity among them for conservation purposes. Only California's legislation contained explicit provisions for all the criteria. Other federal, state, and provincial laws, while containing provisions for species at risk and vulnerable habitats, generally lacked explicit provisions for the vital criteria, size of area, migratory patterns, and recruitment patterns. Implementation, future management, and protection of the proposed B2B marine network would be facilitated by amendment of both Canadian and US laws. Some of the ecological criteria are already implied implicitly or vaguely, but they need to be made explicit in the amended law. The legislative model of California could serve as a template for amending the laws of other jurisdictions in the B2B venture.

Censorship, Logocracy and Democracy

This paper argues: (i) Canadian “Hate Speech Laws”, and similar laws in other jurisdictions, are instances of ‘unilateral censorship’, the suppression of a single political viewpoint. (ii) Unilateral censorship infringes upon the democratic commitment to free and fair elections. (iii) The legislated exclusion of some from the political process through the control of speech means that Canadian governance is best described as ‘logocratic’. (iv) It may be possible to mount a new “Charter Challenge” to Hate Speech laws invoking Section 3 of the Charter, based on the idea that unilateral censorship infringes upon Section 3 guarantees of free and fair elections, and eligibility to run for Canadian legislative bodies. (v) The envisioned challenge differs significantly from previous Charter Challenges because what is at issue are not the liberty rights of citizens in a democracy, but the democratic process itself.

Attention API Suppliers: Quality Agreements are here to Stay

US pharmaceutical manufacturers are increasingly requiring their active pharmaceutical ingredient (API) suppliers to sign quality agreements. This trend — if properly managed by finished-dosage manufacturers — should enable them to enhance the quality of their products without unduly burdening API suppliers. As many of these suppliers are now located in developing industrial countries, this trend will have a significant impact on global supply chains in the pharmaceutical industry. This paper, examining quality agreements from the vantage point of the contract lawyer, will discuss (1) the regulatory basis for requiring quality agreements, including recent changes prompting more finished-dosage manufacturers to require API suppliers to sign quality agreements, (2) hot-button issues in quality agreements and (3) best practices for drafting effective quality agreements. Because the authors are US lawyers, the paper is written from the perspective of US federal laws except where specific reference is made to the laws of other jurisdictions.

Taking Sides with Media Neutrality

Two years ago, a review of Canadian copyright law (Beardwood, CRi 2005, 40) had to observe the emergence of three main themes: First, the shift in the interpretation of the Copyright Act and its underlying policy objectives, namely to balance the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator, in favour of the and user rights. Second, the pervasive influence of the copyright law of other jurisdictions, particularly that of the United States, on the development of Canadian copyright law. Third, the growing potential conflict between the courts and the legislature as the Government of Canada sought to expand protections to creators while the courts were curtailing such protections in favour of users. This article, firstly, observes the final demise of Bill C-60, a bill intended to implement the WIPO Copyright Treaty the WIPO Performers and Phonograms Treaty, and update Canada's Copyright Act for the digital age, and the effect of this on the tension between the Government of Canada and the courts regarding users' rights (I.). Secondly, this article argues that the Supreme Court of Canada (SCC) decision in Robertson v. Thompson Corporation poses a significant threat to the principle of media neutrality in copyright law, and in particular may limit the ability of creators of databases to enforce copyright in the collective work represented by such databases (II.). Thirdly, this article examines the continuing influence of the copyright law of other jurisdictions on copyright decisions in Canada, but point to the recent Alberta case Plews v. Pausch, which drew upon the well-publicized British case involving the Da Vinci Code for guidance, as a cautionary tale of the dangers of over-reliance foreign case law (III.).

Therapeutic Jurisprudence and Outpatient Commitment Law: Kendra's Law as Case Study

This paper considers the implications of assisted outpatient commitment laws (OPC), with specific focus on New York's through the lens of therapeutic jurisprudence (TJ). Kendra's Law's day-to-day operationalization, the on-going constitutional challenges, the law's potential impact on the delivery of other mental health services in the state, and - most important - the inevitability of a mistake (a case in which denial of a Kendra's Law commitment is followed by the commission of a notorious criminal act, or a case in which entry of a Kendra's Law commitment is followed by a patient developing neuroleptic malignant syndrome or some other potentially-fatal antipsychotic drug side effect because of a misdiagnosis or an error in prescription or medication dispensation) all make it inevitable that it will become the centerpiece of the next mental health law debate. It is thus especially important that a discussion of Kendra's Law also provide a national perspective as well as background on OPC - and how, for decades, OPC has been the paradigm trompe l'oeil illusion of mental disability law. In this paper. I first offer some perspectives on the relationship between involuntary civil commitment and outpatient commitment, with a few brief words about how all of this relates to the concept of the least restrictive alternative (LRA). Then, I consider some of the empirical research that's been done on outpatient commitment laws in other jurisdictions - most notably, North Carolina - and focus on both the issues that seemed to matter to whether OPC worked and on the impact OPC may have had on revolving door commitments. After that, I look at the most controversial aspect of outpatient commitment: its relationship to forced drugging. Here, I consider briefly the civil libertarian critique of OPC/forced drugging laws, look at some important recent developments, and consider the state-of-the-art research done by the MacArthur Research Network on Mental Health. Finally, I will look closely at Kendra's Law, providing a brief overview of the law itself, and identifying some pressure points and pivotal issues in the law. I believe that there are ambiguities in some of the pressure points that cry out for resolution, and that the appellate disposition of some of the pivotal issues will provide some clues as to the ultimate real life impact of Kendra's Law. Finally, I will consider the TJ implications of Kendra's Law, in part, in an effort to determine how it fits into the public's take on all of mental disability law.

Celebrating 200 Years Of The Conseil D'etat

On 13 December 1999, the Conseil d'Etat celebrated 200 years since its creation in the Constitution of An VIII. Much has been written over the year on the judicial functions of the Conseil, but far less has been written on its consultative functions or on its influence on the administrative law of other jurisdictions. In one sense, this is not surprising. Since 1818, the case law of the Conseil has been published regularly and commented upon by French lawyers, as well as by those from abroad. But the consultative functions of the Conseil are not a matter of public record in the same way. The advice given to the government on draft legislation and on other matters is private. We know that the government has received advice on certain matters, but the content of the advice or opinion is not made public, except on the rare occasions in which the government chooses to make it public. (In very recent years, this is becoming more frequent.) As to the influence of the Conseil, while certain obvious influences have occurred, many of the mechanisms are not recorded and rely on actions by individual conseillers d'Etat. The following four papers try to reflect on these areas of the Conseil's activity.