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2009

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Full-Text Articles in Law

Responding To Sovereign Funds: Are We Looking In The Right Place?, Wei Cui Jun 2009

Responding To Sovereign Funds: Are We Looking In The Right Place?, Wei Cui

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At a superficial glance, Internal Revenue Code Section 892 appears to favor sovereign wealth funds (SWFs) over foreign private investors by exempting the former from tax on a significant range of US investments. This has recently led to calls for its abolition. Several authors, however, have challenged this view by pointing out that the impact of US tax on the relative competitiveness of SWFs and private investors should be analyzed in terms of the investors’ comparative, not absolute, advantage. And such analysis hinges on whether foreign private investors are taxed by their home countries on a worldwide basis, as well …

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Development Of The Organised Crime Threat Assessment (Octa) And Internal Security Architecture, Benjamin J. Goold Mar 2009

Development Of The Organised Crime Threat Assessment (Octa) And Internal Security Architecture, Benjamin J. Goold

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This briefing paper provides an overview of the existing European Union approach to issues of security, counter-terrorism, and organised crime. In particular, it focuses on the role of the European Security Strategy (ESS) in the formation of policy and in the development of new institutions and institutional arrangements within the EU, and the influence of the Organised Crime Threat Assessment (OCTA). The paper argues that steps should be taken to streamline and rationalise the existing structures concerned with security, counter-terrorism and organised crime, and strongly recommends that a “Committee on Internal Security” be established to act as a single point …

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Business Tax: China's Quasi-Vat, Wei Cui Jan 2009

Business Tax: China's Quasi-Vat, Wei Cui

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On 1 January 2009, new VAT rules entered into force in China. Under these rules, all registered businesses are entitled to recover VAT on the purchase of capital assets other than immovable property. The Chinese VAT system does however not yet cover services and transactions concerning immovable property, which are still subject to the all-stage, cumulative business tax. In this article, the author explains that the process of gradual transformation of the business tax into a VAT has started and that the current business tax should already be seen as a quasi-VAT.

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Accessing Insolvent Consumer Debtors, Challenges And Strategies For Empirical Research, Janis P. Sarra, Danielle Sarra Jan 2009

Accessing Insolvent Consumer Debtors, Challenges And Strategies For Empirical Research, Janis P. Sarra, Danielle Sarra

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Insolvency law policy is best informed by a comprehensive understanding of the policy objectives of particular measures and the practical outcomes of particular choices. Yet there continues to be a lack of empirical research in Canada in respect of consumer insolvency, its underlying causes and its outcomes. Debtors' or bankrupts' experience with the insolvency system is almost impossible to gauge with the data now collected. Research funding for legal, economic and sociological scholars in the insolvency area continues to be very limited. This paper examines current challenges and strategies for empirical research on consumer insolvency in Canada. It explores options …

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Making People Illegal: What Globalization Means For Migration And Law, Catherine Dauvergne Jan 2009

Making People Illegal: What Globalization Means For Migration And Law, Catherine Dauvergne

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This book examines the relationship between illegal migration and globalization. Under the pressures of globalizing forces, migration law is transformed into the last bastion of sovereignty. This explains the worldwide crackdown on extra-legal migration and informs the shape this crackdown is taking. It also means that migration law reflects key facets of globalization and addresses the central debates of globalization theory. This book looks at various migration law settings, asserting that differing but related globalization effects are discernible at each location. The ‘core samples’ interrogated in the book are drawn from refugee law, illegal labor migration, human trafficking, security issues …

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Possibilities And Prospects: The Debate Over A Guaranteed Income, Margot Young, James P. Mulvale Jan 2009

Possibilities And Prospects: The Debate Over A Guaranteed Income, Margot Young, James P. Mulvale

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The idea of a guaranteed income has a long and respectable history in Canadian political and economic thought. Recently, in the face of both wide criticism of the Canadian income security system and growing recognition of the unacceptability of current poverty rates, there has been a resurgence in calls for implementation of a Canadian guaranteed income. But the idea is a controversial one; progressive activists, academics, and politicians disagree about the desirability and the practicality of a guaranteed income. This report: Traces the history of guaranteed income proposals in Canada; Catalogues both the most common reasons supporting advocacy of a …

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The Future Of The Grave Breaches Regime: Segregate, Assimilate Or Abandon, James G. Stewart Jan 2009

The Future Of The Grave Breaches Regime: Segregate, Assimilate Or Abandon, James G. Stewart

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Grave breaches of the Geneva Conventions are one type of war crime. In this Article, I argue that the grave breaches regime has three possible futures. In the first, the regime remains segregated from other categories of war crimes in deference to the historical development of these crimes. This future, however, is one that will see a relatively dramatic decline in the use of grave breaches in practice, primarily because other offences cover the same acts more efficiently. In the second possible future, the grave breaches are entirely abandoned, but this eventuality seems both improbable and undesirable. Even though judicial …

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New Governance In The Teeth Of Human Frailty: Lessons From Financial Regulation, Cristie Ford Jan 2009

New Governance In The Teeth Of Human Frailty: Lessons From Financial Regulation, Cristie Ford

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New Governance scholarship has made important theoretical and practical contributions to a broad range of regulatory arenas, including securities and financial markets regulation. In the wake of the global financial crisis, question about the scope of possibilities for this scholarship are more pressing than ever. Is new governance a full-blown alternative to existing legal structures, or is it a useful complement? Are there essential preconditions to making it work, or can a new governance strategy improve any decision making structure? If there are essential preconditions, what are they? Is new governance “modular” – that is, does it still confer benefits …

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Can Corporate Monitorships Improve Corporate Compliance?, Cristie Ford, David Hess Jan 2009

Can Corporate Monitorships Improve Corporate Compliance?, Cristie Ford, David Hess

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Over the last few years, prosecutors and SEC enforcement attorneys have increasingly relied on settlement agreements (such as deferred prosecution agreements) to combat securities violations and other corporate criminal acts. Many of these agreements require the use of corporate monitors to oversee the corporation's compliance with the settlement and its implementation of a compliance program to prevent future violations of the law. Although these agreements have received significant attention from legislators and scholars, there has been no investigation into the critically important question of whether or not the use of corporate monitors achieves its intended goals. Based primarily on interviews …

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Legal Transplants Through Private Contracting: Codes Of Vendor Conduct In Global Supply Chains As An Example, Li-Wen Lin Jan 2009

Legal Transplants Through Private Contracting: Codes Of Vendor Conduct In Global Supply Chains As An Example, Li-Wen Lin

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The legal transplant literature typically focuses on legal transplants through governmental channels (e.g., legislative or judiciary processes). This article however directs attention to a generally ignored phenomenon: legal transplants through private contracting in the globalization age. Private actors have transplanted a variety of private and public laws across jurisdictions through contracting for over a decade. This article argues that codes of vendor conduct in global supply chains are a vivid example for this type of legal transplantation. Given that vendor codes in global supply chains can be interpreted as legal transplants through private contracting, this article further examines the transplant …

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Beyond A Politics Of The Possible? South-North Relations And Climate Justice, Karin Mickelson Jan 2009

Beyond A Politics Of The Possible? South-North Relations And Climate Justice, Karin Mickelson

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This symposium’s issue on ‘Climate Justice and International Environmental Law: Rethinking the North–South Divide’ asks contributors to explore the intersection between law and emerging ideas of climate justice, and how international environmental law is shaped by and in turn reshapes (or fixates, or interrogates) our understandings of the North–South divide. In relation to the former, the author posits that there appears to be a profound disconnect between the law and the politics of climate change, one that reflects a broader disconnect between those who view the challenge posed by climate change through an ethical lens, and those who see it …

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Bill C-268: Minimum Sentences For Child Trafficking Needed, Benjamin Perrin Jan 2009

Bill C-268: Minimum Sentences For Child Trafficking Needed, Benjamin Perrin

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Under-aged girls as young as 12 years old are being subjected to sexual exploitation by traffickers according to a Criminal Intelligence Service of Canada (CISC); this is a pressing national problem, as organized crime networks are actively trafficking Canadian-born women and under-age girls within and between provinces and to the United States, destined for the sex trade. Law enforcement agencies are beginning to investigate and lay human trafficking charges under Canada’s Criminal Code s. 279.01 which carries a maximum term of imprisonment of 14 years, and up to life imprisonment if the accused kidnaps the victim, subjects them to aggravated …

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Banned From Lawyering: Gordon Martin, Communist, W. Wesley Pue Jan 2009

Banned From Lawyering: Gordon Martin, Communist, W. Wesley Pue

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This paper assesses the exclusion of Gordon Martin from the practice of law in 1948 solely on the grounds that his communist political commitment was inconsistent with the role of a lawyer. In so doing it canvasses understandings of the day regarding communism, constitutionalism, and American social thought (as embodied in Oliver Wendell Holmes, John Dewey, Charles Beard, James Harvey Robinson, and Thorstein Veblen). Issues relating to self-governance of the legal profession, character, and statutory interpretation under then-current administrative law doctrine are reviewed.

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Cowboy Jurists & The Making Of Legal Professionalism, W. Wesley Pue Jan 2009

Cowboy Jurists & The Making Of Legal Professionalism, W. Wesley Pue

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This paper identifies the origins of modern Canadian legal professionalism in the prairie west during the early twentieth century, arguing for the importance of human agency and emphasizing contingency where others assert trans-historical processes. Lawyers combined agendas which were explicitly moral and reforming with a profound restructuring of their profession. Their efforts to reform the curriculum of formal legal education was part of a cultural project, but so too was their desire to attain self-regulation, monopoly, professional independence, and plenary disciplinary powers. The substantive findings documented here direct our attention to questions of cultural agency and structural revolution that are …

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Introduction To Lawyers In Canadian History, W. Wesley Pue Jan 2009

Introduction To Lawyers In Canadian History, W. Wesley Pue

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This paper "frames" the study of lawyers in Canadian history against major interpretations of the legal profession and legal professionalism including the historical self-understandings of organized legal professions in the common law world, market-control theorists, institutional, and cultural history approaches. The article serves as the introduction to a new book on The Promise And Perils Of Law: Lawyers In Canadian History, which includes essays on the history of legal education, the practice of law, Quebec's legal distinctiveness, constitutionalism and the rule of law, and issues in race, gender, and diversity.

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Nafta Chapter 11 As Supraconstitution, Stepan Wood, Stephen Clarkson Jan 2009

Nafta Chapter 11 As Supraconstitution, Stepan Wood, Stephen Clarkson

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More and more legal scholars are turning to constitutional law to make sense of the growth of transnational and international legal orders. They often employ constitutional terminology loosely, in a bewildering variety of ways, with little effort to clarify their analytical frameworks or acknowledge the normative presuppositions embedded in their analysis. The potential of constitutional analysis as an instrument of critique of transnational legal orders is frequently lost in methodological confusion and normative controversy. An effort at clarification is necessary. We propose a functional approach to supraconstitutional analysis that applies across issue areas, accommodates variation in kinds and degrees of …

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Le Droit Myope, Régine Tremblay Jan 2009

Le Droit Myope, Régine Tremblay

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Cet essai présente la violence conjugale comme un enjeu de droit privé et de droit public, comme une problématique qui se situe au confluent de ces deux catégories considérées comme mutuellement exclusives. L'évolution de la perception de I'homosexualité en droit public a transformé notre idée du couple en droit privé. Ceci remet en question notre façon de penser le couple, les individus qui le composent et la violence qui s'y produit.

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Designing Foreign Tax Credit Rules In China: The Case Of Foreign Loss Limitations, Wei Cui Jan 2009

Designing Foreign Tax Credit Rules In China: The Case Of Foreign Loss Limitations, Wei Cui

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Over the last few years, China’s large trade surplus against other countries, as well as its high domestic savings rate even relative to its high investment rate, have resulted in a very substantial foreign currency reserve that puts the country in the position of a significant capital exporter. The huge amount of foreign currency assets held by the Chinese government— near $1.9 trillion at the end of 2008 — and a breathtaking series of acquisitions made by Chinese firms overseas are now salient items in international business reporting and public discussion. China’s new posture as an exporter of capital has …

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Indirect Taxation Of Cross-Border Services In China: (Partial) Switch To Destination-Based Taxation, Wei Cui Jan 2009

Indirect Taxation Of Cross-Border Services In China: (Partial) Switch To Destination-Based Taxation, Wei Cui

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In early November 2008, China's State Council approved a major overhaul of the country's VAT: starting in 2009, registered VAT payers are allowed to claim input credit for VAT paid on purchases of equipment and other non-real-property fixed assets. The change marks a decisive abandonment of China's previous esoteric "production-type" VAT (which disallowed input tax credit for fixed asset purchases) in favour of the conventional consumption-type VAT, and a giant step in the rationalization of the coun­try's tax structure. It also promises to accelerate the pace of VAT reform, the next major stage of which is widely regarded as expanding …

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Putting Surveillance On The Political Agenda – A Short Defence Of Surveillance: Citizens And The State, Benjamin J. Goold, Charles D. Raab Jan 2009

Putting Surveillance On The Political Agenda – A Short Defence Of Surveillance: Citizens And The State, Benjamin J. Goold, Charles D. Raab

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In February 2009 the House of Lords Constitutional Committee in the United Kingdom published the report Surveillance: Citizens and the State. Some have hailed this as a landmark document. Volume 6(3) of Surveillance & Society published 4 invited responses to this report written by prominent scholars. In the attached paper the two Specialist Advisers to this Committee set the context for the report and provide a brief rejoinder to the four responses. NOTE: The authors write in their academic and personal capacities, and not as representatives of the Committee.

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The Gap In Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation, W. Wesley Pue, Robert Diab Jan 2009

The Gap In Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation, W. Wesley Pue, Robert Diab

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The authors identify a gap in Canadian policing law. Police have neither common law nor statutory authority to undertake the sorts of public order policing measures that are thought to be essential to securing large public events, such as Vancouver's 2010 Olympics. The paper argues for the adoption of a Public Order Policing Act designed to confer the necessary powers and ensure their operation in a manner that respects constitutional law and fundamental civil liberties. Revised and published as W. Wesley Pue & Robert Diab “The Gap in Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation” (2010) 28 Windsor …

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Canadian Bijuralism And The Concept Of An Acquisition Of Property In The Federal Income Tax Act, David G. Duff Jan 2009

Canadian Bijuralism And The Concept Of An Acquisition Of Property In The Federal Income Tax Act, David G. Duff

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The acquisition of property plays an important role in the federal Income Tax Act (ITA), determining eligibility for a number of tax benefits, including entitlement to capital cost allowance, investment tax credits, and the deductibility of interest expenses incurred in respect of eligible property. In spite of its importance, the concept of an acquisition of property is not defined in the ITA, and it has been subject to divergent interpretations in the common law and the civil law. The author traces the sources of law informing the meaning of an acquisition of property in the common law and the civil …

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Book Review Of Fighting For Political Freedom: Comparative Studies Of The Legal Complex And Political Liberalism, Robert Russo Jan 2009

Book Review Of Fighting For Political Freedom: Comparative Studies Of The Legal Complex And Political Liberalism, Robert Russo

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No abstract provided.

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Chief Justice Lamer's Leadership In Feminist Times, Catherine Dauvergne Jan 2009

Chief Justice Lamer's Leadership In Feminist Times, Catherine Dauvergne

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In this paper, the author constructs a feminist retrospective on Chief Justice Antonio Lamer's career in three stages. First, she reviews the content of his written decisions from a feminist perspective. Second, she looks at his position in a number of the key decisions for feminists, and finally she looks briefly at the evolution in Chief Justice Lamer's writing about sexual assault during his time on the bench. At each stage the author aims to clearly describe her methodology and evidence relied upon, allowing readers to reach their own conclusion regarding Justice Lamer's engagement with feminist legal argument.

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Tax Avoidance In The 21st Century, David G. Duff Jan 2009

Tax Avoidance In The 21st Century, David G. Duff

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Over the past few decades, several factors have contributed to what numerous revenue agencies and academic authors have characterized as a significant increase in tax avoidance activity. This paper considers both the causes of increased tax avoidance activity over the past several years as well as governmental responses to this phenomenon in key common law jurisdictions, notably Australia, Canada, New Zealand, the United Kingdom and the United States. Part 2 examines the concept of tax avoidance, distinguishing unacceptable or abusive tax avoidance both from illegal tax evasion on the one hand and acceptable tax planning or tax minimization on the …

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The Ties That Bind: Multiculturalism And Secularism Reconsidered, Brenna Bhandar Jan 2009

The Ties That Bind: Multiculturalism And Secularism Reconsidered, Brenna Bhandar

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Explores contemporary contestations over the rights of Muslim girls and women to wear the veil in both France and the U.K.

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Book Review: Martin Chanock, The Making Of South African Legal Culture, 1902-1936: Fear, Favour And Prejudice, W. Wesley Pue Jan 2009

Book Review: Martin Chanock, The Making Of South African Legal Culture, 1902-1936: Fear, Favour And Prejudice, W. Wesley Pue

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This review of Martin Chanock's work on South African legal culture, locates the work in the context of international scholarship on law and society, legal history, and law and colonialism. It appeared in 18:1 Canadian Journal of Law & Society, 177-181.

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Security For The 2010 Olympics - The Gap In Police Powers Under Canadian Law, W. Wesley Pue, Robert Diab Jan 2009

Security For The 2010 Olympics - The Gap In Police Powers Under Canadian Law, W. Wesley Pue, Robert Diab

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Canadian police lack specific statutory authorization to take measures commonly thought essential to good public order policing. The erection of security fences, creation of designated 'protest areas', restriction of access to public space, surveillance, and search without cause intrude massively into the ordinary freedoms of law-abiding subjects. Such measures may be helpful, perhaps necessary. But no Canadian legislature has ever expressly conferred such powers. They do not reside in the domain of the common law. British Columbia urgently needs a provincial 'Public Order Policing Act' authorizing the creation of police exclusion zones, providing principled and explicit guidance to their proper …

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Necessarily Critical? The Adoption Of A Parody Defence To Copyright Infringement In Canada, Graham Reynolds Jan 2009

Necessarily Critical? The Adoption Of A Parody Defence To Copyright Infringement In Canada, Graham Reynolds

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The creation and distribution of parodies promote the fundamental values underlying the constitutionally protected right to freedom of expression. Through parodies, individuals can progress in their “search for political, artistic and scientific truth”, protect their autonomy and self-development, and promote “public participation in the democratic process”. Recognizing the importance of parody to political, social, and cultural life, governments in various jurisdictions have adopted or proposed parody defences to copyright infringement. The Canadian Copyright Act, however, does not contain an explicit parody defence to copyright infringement. Furthermore, no Canadian court has accepted a defence of parody to a claim of copyright …

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Nanotechnology And The Tragedy Of The Anticommons: Towards A Strict Utility Requirement, Graham Reynolds Jan 2009

Nanotechnology And The Tragedy Of The Anticommons: Towards A Strict Utility Requirement, Graham Reynolds

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Nanotechnology has been described as a transformative technology that will bring about the next industrial revolution. Over the last few decades, scientists and their research partners have acquired nanotechnology patents in a manner resembling a gold rush. The nanotechnology gold rush has specifically targeted nanomaterials, nanotechnology’s building blocks. Many of the patents that have been granted for nanomaterials are broad, general patents encompassing basic research. A driving force behind the patenting of basic research in nanotechnology was the development-oriented approach to patent rights. This approach emerged in the 1960s and 1970s, and supported the widespread patenting of basic research in …

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