Law Commons^™

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Achieving A (Copy)Right To Repair For The Eu’S Green Economy, Anthony D. Rosborough, Leanne Wiseman, Taina Pihlajarinne

Articles, Book Chapters, & Popular Press

• The Right to Repair is a global movement in favour of rebalancing the relationship between manufacturers and end users of products and devices. As part of the European Union (EU) Green Deal and the Circular Economy Action Plan, EU legislators have made the Right to Repair a key policy aim. To date, however, the EU’s Right to Repair policy focus has been predominantly consumer law–oriented.

• This article sheds light on another key dimension of the Right to Repair—IP (and principally copyright law). It canvasses the ways in which copyright can inhibit repair activities, including curtailing access to repair information and …

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Lower-Income Countries’ Ongoing Quest For International Tax Justice: A Case Study Of The Oecd’S Tax Allocation Proposal, Okanga Ogbu Okanga, Kim Brooks

Articles, Book Chapters, & Popular Press

The viability of our international tax system hinges on two things: (1) safeguarding the effective flow of international activities and (2) ensuring that countries can adequately collect tax on the income derived from those activities. Each of these fundamentals relies on a defensible/fair allocation of taxing rights between countries with competing tax jurisdiction (inter-nation equity).

The recent Organisation for Economic Co-operation and Development (OECD)-led multilateral effort to transform international tax rules to ensure that countries can adequately tax multinational enterprises (MNEs) operating in the global digital economy (OECD proposal) has reignited inter-nation equity conversations. Although important to all countries, inter-nation …

Intangible Justice? Intellectual Property Disputes And Canadian Small Claims Courts, Anthony D. Rosborough, Reagan Seidler

Articles, Book Chapters, & Popular Press

This article investigates the jurisdiction and institutional competence of Canadian small claims courts and tribunals with respect to complex claims, and in particular, intellectual property (IP) claims. Recent research points to an increase in these types of claims. A doctrinal analysis finds small claims bodies have wide jurisdiction over intellectual property infringement, contract, and licensing disputes. They can also rule on issues of validity, though they cannot affect registrations in the databases of the Canadian Intellectual Property Office. Remedies including damages, accountings, and the recovery of infringing goods are available in many provinces. As to their capacity, the article assesses …

Negotiating Bilateral Tax Treaties: Should Tax Treaties Involving Low-Income Countries Contain A Sunset Clause?, Okanga Ogbu Okanga

Reports & Public Policy Documents

This policy brief reflects on an underexplored proposition: that bilateral tax treaties – particularly treaties involving (middle- and) low-income countries – should contain an expiration or sunset clause. The brief examines some reasons why it may be sensible for a low-income country to make its bilateral tax treaty expirable, from its onset. It also highlights a few reasons why such a policy may not be advisable – or tenable. The brief concludes by exploring the design of a model sunset clause for inclusion in the UN Model Tax Convention.

Comparing Russian And Canadian Climate Policy: Protecting Arctic Interests?, Meinhard Doelle, Roman Dremliuga

Articles, Book Chapters, & Popular Press

The global human influence on the climate is growing at an alarming pace. This trend appears doomed to continue. Polar regions are feeling the effects first. This means that if the impacts of climate change serve to motivate effective policies, polar regions could be a good place to look for climate policy innovation. It is within this context that this article considers Arctic climate policy in Russia and Canada. The basic question posed is whether the unique and immediate threat climate change presents in the Arctic is reflected in progressive laws and policies with respect to four key areas: mitigation, …

A Law And Politics Contextualization Of Corporate Activism In Nigeria’S 2020 Anti-Police Brutality Campaign, Okanga Ogbu Okanga

Articles, Book Chapters, & Popular Press

Corporate activism – the progressive pursuit of social justice causes by corporations – is a growing global phenomenon. There are increasing expectations and, in many cases, demands that corporations pull off their gloves to actively confront sociopolitical issues bedevilling their communities. Emerging scholarship suggests that corporate activism is influenced by various factors, including the ethical, political, and commercial orientations of corporate minds and the relative political and legal landscape within which corporations operate. Adopting a qualitative research mechanism that reflects on open-source information about relevant actors, collected from blogs, Twitter, and news sites, as complemented by a broad variety of …

The Politics Of Regulating And Disciplining Judges In Nigeria, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The disciplining of judges is a sensitive and complex challenge. In Nigeria, the complexity is heightened because the process is complicated by socio-political factors and public views about the motivations for disciplining some judges, including claims of political interference by the ruling government. This Chapter argues that both judicial discipline and the work of the National Judicial Council (NJC) – the body responsible for judicial regulation in Nigeria – are caught up within Nigeria’s peculiar socio-politics, a reality that a strictly legal analysis will miss. The Chapter analyzes contemporary challenges and controversies associated with the complaints and discipline procedure in …

Effective Taxation In Africa: Confronting Systemic Vulnerability Through Inclusive Global Tax Governance, Okanga Ogbu Okanga, Lyla Latif

Articles, Book Chapters, & Popular Press

Implicit within the African fiscal architecture are embedded vulnerabilities to exogenous factors which challenge their domestic revenue mobilization (DRM) strategies. These DRM challenges are attributable to asymmetrical power relationships that exist within the international tax regime (ITR). The rules governing international taxation have largely been devised by developed countries resonating their own economic purposes, resulting in a regressive relationship that overlooks African perspectives in the creation of tax norms. Consequently, policymaking, and scholarship have focused extensively on curbing these power asymmetries that have resulted in vulnerable African tax systems. Continental and domestic approaches are now aligned towards fostering reform of …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

An Intellectual History Of Comparative Tax Law, Kim Brooks

Articles, Book Chapters, & Popular Press

In this article, the author argues that comparative tax law has an intellectual history. More specifically, the author claims that history reveals there is a distinguishable comparative tax law scholarship where tax scholars engage in common debates. The author then offers a description of method, highlighting the difficulty of identifying the work that might be considered “comparative tax law.” Next, the author conceptualizes and clusters contributions from scholars who have framed the comparative tax law field. The author argues that our national boundedness, combined with the lack of an explicit network of scholars, has masked the rich intellectual history in …

Theorizing Developmental Regionalism In Narratives Of African Regional Trade Agreements (Rtas), Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

There is a gap in the legal scholarship on African regional trade agreements (RTAs) that links law and development to narratives of developmental regionalism. This article addresses the gap by making the case for an explicit linking of Law and Development scholarship and Developmental Regionalism in African RTAs.

First, the article argues that the cross- pollination of the fields provides an opportunity for a more rigorous understanding of developmental regionalism in African RTAs. Second, the article that developmental regionalism as an analytical tool responds to and encapsulates the multidimensional character of African RTAs. Third, the article argues for a more …

Judicial Nullification Of Presidential Elections In Africa: Peter Mutharika V Lazarus Chakera And Saulos Chilima In Context, James Thuo Gathii, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

In contemporary Africa, the judicialization of presidential elections between incumbents and challengers in courts is becoming increasingly visible. The latest example of this judicialization is the Malawi case of Peter Mutharika v Lazarus Chakera and Saulos Chilima, which successfully triggered a repeat election in which an opposition politician defeated an incumbent. This article examines the consequences and implications of this case and compares the Malawi decision to cases in Kenya and Nigeria. It further analyzes the backlash on the Malawi justices from the executive and the subsequent solidarity seen from both legal and civil society. The article concludes that the …

Doing Development Differently: Reorienting Sino-African Trade And Investment Relations After The Pandemic, Olabisi D. Akinkugbe, Clair Gammage

Articles, Book Chapters, & Popular Press

This article explores the evolutive nature of Sino-African relations and questions how Chinese interventions may influence Africa’s development stories in a post-Covid world. We examine whether the crisis could serve as a catalyst for reorienting the strategic partnership between China and Africa away from debt diplomacy towards genuine partnership or a breaking apart of the long-standing relationship. This article presents three narratives to illustrate how the future direction of Sino-African relations may change and how this might enable Africa to ‘do development differently’.

Assisted Dying And Evidence-Based Law-Making: A Critical Analysis Of An Article’S Role In New Zealand’S Referendum, Ben White, Lindy Willmott, Jocelyn Downie, Andrew Geddis, Colin Gavaghan

Articles, Book Chapters, & Popular Press

Aim: To critically analyse the reliability of an article which claims to be evidence that the End of Life Choice Act 2019 provides a “potential hotspot for family, community and social discord that may not be easily remedied” should the legislation receive public support in New Zealand’s September 2020 referendum.

Method: The subject article was reviewed multiple times by all authors and critiqued against three criteria: a reliability pyramid developed to weigh evidence about assisted dying; principles that guide the conduct of social science research; and the use of reliable and current social science literature to support factual claims.

Results: …

A Hitchhikers' Guide To Comparative Tax Scholarship, Kim Brooks

Articles, Book Chapters, & Popular Press

Comparative law offers scholars a fascinating lens through which to dis- cover new insights about the world, but only if we take on comparative law projects. Few legal scholars devote a substantial strand of their research to comparative study, and so their work fails to benefit from the active and prolonged debates in comparative law. This Article makes a singular, but hopefully substantial, contribution: it seeks to render more accessible the comparative law scholarship with the aim of facilitating easier access to comparative law insights for tax (and hopefully other) law scholars. Put another way, the Article seeks to engage …

Regime For Use Of Out-Of-Commerce Works, Lucie Guibault

Articles, Book Chapters, & Popular Press

A presentation of the new provisions in European Directive 2019/790 on Copyright in the Digital Single Market on the licensing and use of out-of-commerce works by cultural heritage institutions.

Comparative Legal Perspectives On Cultural Land Trusts For Urban Spaces Of Culture, Community, And Art: A Tool For Counteracting Displacement, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

As cities redevelop and previously less desirable or marginalized portions of the city space are “retaken” by a city, areas that have provided affordable performance, rehearsal, and live/work space for the arts and culture sector are becoming increasingly less available for these uses. Focusing predominantly on the Canadian Civil Law and Common Law context with passing reference to other jurisdictions such as the US, Scotland, and the UK, this article explores techniques for managing the increased pressure on and increasingly rapid displacement of spaces of arts, culture, and community cultural wealth that is taking place in cities. To this end, …

Tim Edgar: The Accidental Comparatist, Kim Brooks

Articles, Book Chapters, & Popular Press

This paper focuses on the contributions of Tim Edgar as a major comparative law scholar. It reviews the major debates and theoretical directions in comparative law scholarship and offers a case study of Edgar's contributions in the light of the major debates in comparative law. Edgar's development as a comparatist is traced through three defined phases. His identification of the policy problem to be resolved is highlighted as a major feature of his contribution.

An Intellectual History Of Comparative Tax Law, Kim Brooks

Articles, Book Chapters, & Popular Press

In this article, the author argues that comparative tax law has an intellectual history. More specifically, the author claims that history reveals there is a distinguishable comparative tax law scholarship where tax scholars engage in common debates. The author then offers a description of method, highlighting the difficulty of identifying the work that might be considered “comparative tax law.” Next, the author conceptualizes and clusters contributions from scholars who have framed the comparative tax law field. The author argues that our national boundedness, combined with the lack of an explicit network of scholars, has masked the rich intellectual history in …

International Economic Law In The Global South And Covid-19, James Thuo Gathii, Olabisi D. Akinkugbe, Nthope Mapefane, Ohio Omiunu, Titilayo Adebola

Articles, Book Chapters, & Popular Press

The COVID-19 pandemic has disrupted all facets of human relations on a magnitude not witnessed in the post-World War II era. Due to the interdependence of countries in the international system, it is not surprising that the unfolding public health crisis has had significant ramifications for the functioning of the global economy as well. In responding to this global health crisis, and the associated fallouts, the academic community has a crucial role to play in finding solutions to the hydra-headed problems we all face.

Driven by this sense of urgency and responsibility, AfronomicsLaw put out a call for contributions in …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Tim Edgar: The Accidental Comparatist, Kim Brooks

Articles, Book Chapters, & Popular Press

This paper focuses on the contributions of Tim Edgar as a major comparative law scholar. It reviews the major debates and theoretical directions in comparative law scholarship and offers a case study of Edgar’s contributions in the light of the major debates in comparative law. Edgar’s development as a comparatist is traced through three defined phases. His identification of the policy problem to be resolved is highlighted as a major feature of his contribution.

To Recognize Or Not? Good Faith Under Nigerian Law Of Contract, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

Unlike jurisdictions such as Canada and the United Kingdom, Nigerian courts have not engaged with the doctrine of good faith. Similarly, there is a dearth of academic scholarship that examines this aspect of the Nigerian law of contract. In this paper, I examine how the Nigerian courts have operationalized the common law of good faith in the performance of contracts. Rather than suggest that good faith as “an organizing principle” has an internally consistent meaning by which we can transplant the doctrine from one jurisdiction to another, or even apply the so-called duty of honest performance as enunciated by the …

Reverse Contributors? African State Parties, Icsid, And The Development Of International Investment Law, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

International investment disputes involving African states before the International Centre for Settlement of Investment Disputes (ICSID) have generated significant critical inquiry. Yet, accounts of their contribution to the development of international investment law as a result of these dispute are limited. This article addresses this gap. It examines the contribution of some of the high-profile ICSID disputes involving African states to the development of international investment law. Notwithstanding the charges against African States in ICSID, I contend that the involvement of African States in ICSID Disputes has contributed to the development of international investment law. In particular, the jurisprudence that …

Access To Knowledge And The Global Abortion Policies Database, Joanna Erdman, Brooke Johnson

Articles, Book Chapters, & Popular Press

Research shows that women, healthcare providers, and even policy makers worldwide have limited or inaccurate knowledge of the abortion law and policies in their country. These knowledge gaps sometimes stem from the vague and broad terms of the law, which breed uncertainty and even conflict when unaccompanied by accessible regulation or guidelines. Inconsistency across national law and policy further impedes safe and evidence‐based practice. This lack of transparency creates a crisis of accountability. Those seeking care cannot know their legal entitlements, service providers cannot practice with legal protection, and governments can escape legal responsibility for the adverse effects of their …

Owning The Right To Open Up Access To Scientific Publications, Lucie Guibault

Articles, Book Chapters, & Popular Press

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. …

Understanding The Lagos State Properties Protection Law, 2016, Okanga Ogbu Okanga

Articles, Book Chapters, & Popular Press

Land is a crucial component of development. This is more so in a place like Lagos State, Nigeria's economic capital, where there is a far greater demand for the asset than nature bestows. The State has for decades endured a damaging form of criminality widely known as land grabbing. This menace manifests itself in various ways, some of which are outlined in this article. The Lagos State Properties Development Law 2016 (“the Law’ or ‘PPL”) aims to curtail unwholesome and unscrupulous land transactions and practices in the State by prescribing strong criminal sanctions against violators. This paper examines the essence …

Medical Assistance In Dying: Lessons For Australia From Canada, Jocelyn Downie

Articles, Book Chapters, & Popular Press

Canada has recently witnessed dramatic changes in end-of-life law and policy. Most notably, we have moved from a prohibitive to a permissive regime with respect to medical assistance in dying (MAiD). As a number of Australian states are actively engaged in debates about whether to decriminalise MAiD, it is worth reviewing the Canadian experience and drawing out any lessons that might usefully inform the current processes in Australia.

Next Up: A Proposal For Values-Based Law Reform On Unilateral Withholding And Withdrawal Of Potentially Life-Sustaining Treatment, Jocelyn Downie, Lindy Willmott, Ben White

Articles, Book Chapters, & Popular Press

As the legalization of assisted dying shifts from a project for law reform to one of implementation, the gaze for Canadian end of life law and policy academics and practitioners should be turned quickly to another pressing issue – the unilateral withholding and withdrawal of potentially life-sustaining treatment. What should happen when the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should? While the future of end of life law and policy no doubt includes many other issues, this is an urgent and immediate horizon issue for Canada as well …