Climate Law Blog » Blog Archive » Evaluating Legal Challenges to EPA’s PSD Regulations
As discussed previously, implementation of EPA’s greenhouse gas regulations necessitates a large program of regulation under the Clean Air Act’s Prevention of Significant Deterioration (PSD) program. EPA has attempted to give states authority to implement these changes, but not all parties have been compliant. A series of EPA rules passed in December 2010 found that certain State Implementation Plans (SIPs) were inadequate for addressing greenhouse gas permitting requirements and established temporary federal permitting programs to cover those regions. Unsurprisingly, these determinations have been challenged in the DC Circuit. According to the most complete statement of issues in the case, filed March 17, 2011, the challenges focus on four major questions:
1.Whether EPA violated the CAA by not allowing three years for states to pass appropriate SIPs in accordance with EPA’s past regulations;
2.Whether EPA used the wrong provision in the CAA to issue its SIP call;
3.Whether EPA incorrectly assumed that PSD was self-executing such that outdated SIPs could not legally issue permits for GHG emissions starting on January 2, 2011; and
Monday, March 28, 2011
Sunday, March 27, 2011
Ontario/China: Murray,Ottawa,March2nd,2011
Ontario is to benefit from the massive project by the Chinese investment into clean energy and new technology. Ontario to benefit 10% from this chinese investment.
I remember in Montreal when some chinese rep from the Deustche Bank, talking about solar power, and the elderly with arthritis- and the need for warmth...I thought he was joking!
I remember in Montreal when some chinese rep from the Deustche Bank, talking about solar power, and the elderly with arthritis- and the need for warmth...I thought he was joking!
Saturday, March 19, 2011
Municipal Law & Decisions TO April 6th,2011
Municipal decisions have always been subject to challenge on a wide range of constitutional grounds. The Supreme Court of Canada has issued a number of recent judgments respecting constitutional law issues involving or impacting municipalities. When can municipalities govern in relation to federal and provincial lands and undertakings over airports, harbours, railways and telecommunications? What is the test respecting paramountcy and exclusive jurisdiction? What is the doctrine of interjurisdictional immunity and when does it apply? Where does the principal of subsidiarity fall within this scheme? If you do not know the answers to these questions, you need to come out and hear legal experts analyze these topics and participate in this interactive and engaging program.
Wednesday, March 16, 2011
Nuclear Liability Act,Quebec
Nuclear Power in Quebec
The nuclear industry has always had a curious habit of operating in secrecy, and so it was in this case -- none of the thirteen mayors of the municipalities to be excluded from the evacuation zone were consulted or notified, nor was the CRD- 04, until a radio story on Dimanche Magazine by Danny Brown revealed the truth of the situation.
It is ironic that nuclear proponents try so hard to convince people that nuclear power is safe, when the nuclear industry is the only one in all of Canada that is protected by law from being financially liable, beyond a very minimal amount, in the event of a major industrial accident. The Nuclear Liability Act limits the liability of the owner of a nuclear plant to $75 millions, even though the actual damage from a major accident could be tens of billions.
Moreover, the suppliers of nuclear equipment are, under this law, completely exempt from liability even if faulty components supplied by them were a contributing cause of the accident. And on top of that, the insurance companies will not insure anybody against the consequences of radioactive contamination from a nuclear accident; there is a standard "nuclear exclusion clause" in every single insurance policy that says the insured has no coverage whatsoever in the case of radioactive contamination. The industry is sure that reactors are safe, but they don't want to bet any money on it.
Chronic Radiation Exposure
The nuclear industry has always had a curious habit of operating in secrecy, and so it was in this case -- none of the thirteen mayors of the municipalities to be excluded from the evacuation zone were consulted or notified, nor was the CRD- 04, until a radio story on Dimanche Magazine by Danny Brown revealed the truth of the situation.
It is ironic that nuclear proponents try so hard to convince people that nuclear power is safe, when the nuclear industry is the only one in all of Canada that is protected by law from being financially liable, beyond a very minimal amount, in the event of a major industrial accident. The Nuclear Liability Act limits the liability of the owner of a nuclear plant to $75 millions, even though the actual damage from a major accident could be tens of billions.
Moreover, the suppliers of nuclear equipment are, under this law, completely exempt from liability even if faulty components supplied by them were a contributing cause of the accident. And on top of that, the insurance companies will not insure anybody against the consequences of radioactive contamination from a nuclear accident; there is a standard "nuclear exclusion clause" in every single insurance policy that says the insured has no coverage whatsoever in the case of radioactive contamination. The industry is sure that reactors are safe, but they don't want to bet any money on it.
Chronic Radiation Exposure
Located near Becancour about 100 kilometres northeast of Montreal, the plant was commissioned in 1983.
Located near Becancour about 100 kilometres northeast of Montreal, the plant was commissioned in 1983.
Hydro-Québec has a single shareholder, the Québec's provincial government. Responsible for operation and development of generating facilities in Québec, Hydro-Québec Production division sales and buys electricity on wholesale markets both within and outside the province. Hydro-Québec Production still favors the hydropower option. However, even if Gentilly 2 supplies only a small percentage of electricity production in Québec, it helps diversify the company's sources of supply.
Gentilly 2 is Québec's only nuclear generating station. It went into commercial operation in October 1983. Gentilly 2 generator is the most powerful among Hydro-Québec utility's generating stations. Moreover, the location of Gentilly 2 near the major electrical load centres in the province plays an essential role in stabilizing the Hydro-Québec grid, which is characterized by large remote hydraulic generating stations connected via very long transmission lines.
However improbable it may be, the insurance companies are very careful to explicitly exclude any coverage for property-owners in the event of such an accident. Also, the nuclear industry -- unlike any other industry in Canada -- is protected by a special Act of Parliament which limits civil liability to $75 million in the event of such an accident. These are extraordinary legal and financial precautions for an accident which Hydro-Québec declares to be "inconceivable".
It is irresponsible for Hydro-Québec to pretend that such an accident is not possible at Gentilly-2
Hydro-Québec has a single shareholder, the Québec's provincial government. Responsible for operation and development of generating facilities in Québec, Hydro-Québec Production division sales and buys electricity on wholesale markets both within and outside the province. Hydro-Québec Production still favors the hydropower option. However, even if Gentilly 2 supplies only a small percentage of electricity production in Québec, it helps diversify the company's sources of supply.
Gentilly 2 is Québec's only nuclear generating station. It went into commercial operation in October 1983. Gentilly 2 generator is the most powerful among Hydro-Québec utility's generating stations. Moreover, the location of Gentilly 2 near the major electrical load centres in the province plays an essential role in stabilizing the Hydro-Québec grid, which is characterized by large remote hydraulic generating stations connected via very long transmission lines.
However improbable it may be, the insurance companies are very careful to explicitly exclude any coverage for property-owners in the event of such an accident. Also, the nuclear industry -- unlike any other industry in Canada -- is protected by a special Act of Parliament which limits civil liability to $75 million in the event of such an accident. These are extraordinary legal and financial precautions for an accident which Hydro-Québec declares to be "inconceivable".
It is irresponsible for Hydro-Québec to pretend that such an accident is not possible at Gentilly-2
It is just that I was at a meeting in Vancouver- where the major discussion was what would be the cost of "Liability Insurance" for these projects. Or what would be the liability insurance that Quebec would have to incur if the moratorium on Fracking in Quebec is lifted?? Or for that matter what is the cost of Liability insurance for a nuclear power plant in Quebec.
Discussion of Liability in Enviroment allowed??
But how about environmental liability- such as the liability insurance for Carbon Capture and Sequestering sites which are now beginning to dot the North American landscape. Can Liability be discussed in Environmental terms- such as those suffering from contaminated water due to "Hydraulic Fracturing" (i.e. Fracking) Those victims of contaminated ground water- are they allowed to be compensated by those who caused the contamination??
Supreme Court Restores Record-Setting $1M Punitive Damages Award Against Home Insurer
Ogilvy Renault - Cabinet d'avocats | Supreme Court Restores Record-Setting $1M Punitive Damages Award Against Home Insurer
Insurance and Professional Liability Team
The Supreme Court of Canada has ruled that a punitive damages award of $1 million against an insurer, while high, was "within the rational limits" given the reprehensible character of its bad-faith denial of its policyholder's fire insurance claim. The ruling establishes a new high water mark for punitive damages in Canada, and underscores the importance for all insurers to deal with their insureds in good faith.
In a ruling[1] that sends a strong message to the entire Canadian insurance industry, the Supreme Court of Canada has restored the $1 million award for punitive damages assessed by a jury against a home insurer at the trial of a claim arising from a fire loss. The award is larger than any other ever made for punitive damages in Canada.
The case involved a claim by Daphne and Keith Whiten for recovery under their homeowner's insurance policy following the 1994 loss of their home to fire. Their insurer, Pilot Insurance, appointed an independent adjuster but chose to reject his advice to pay the claim. Despite the unanimous conclusion of investigating authorities that there was no evidence of arson, the insurer denied the claim on the basis that the fire had been deliberately set. It then formulated a defence strategy that the Court found was intended to "starve the insureds into submission."
At trial, the jury awarded the Whitens compensatory damages of $320,000 for their proven losses resulting from the fire. The jury also awarded three times that amount - $1 million - in punitive damages for the steadfast refusal of the insurer to abandon its ill-founded defence to the claim. The Whitens' entitlement to punitive damages was upheld by the majority of the Ontario Court of Appeal, but was reduced in amount to $100,000. The dissenting member of the Court of Appeal concluded that the original punitive damages award of $1 million ought to be upheld.
A central issue in the case concerned whether, in what is ultimately a claim based on breach of contract, punitive damages can be awarded at all. The Supreme Court of Canada had itself established[2] that where breach of contract is alleged there must be an "actionable wrong" independent of that breach in order for punitive damages to be recoverable. Writing for the majority, Justice Binnie ruled that a refusal by an insurance company to deal with its insured in good faith constitutes an independent breach that permits punitive damages to be awarded
Insurance and Professional Liability Team
The Supreme Court of Canada has ruled that a punitive damages award of $1 million against an insurer, while high, was "within the rational limits" given the reprehensible character of its bad-faith denial of its policyholder's fire insurance claim. The ruling establishes a new high water mark for punitive damages in Canada, and underscores the importance for all insurers to deal with their insureds in good faith.
In a ruling[1] that sends a strong message to the entire Canadian insurance industry, the Supreme Court of Canada has restored the $1 million award for punitive damages assessed by a jury against a home insurer at the trial of a claim arising from a fire loss. The award is larger than any other ever made for punitive damages in Canada.
The case involved a claim by Daphne and Keith Whiten for recovery under their homeowner's insurance policy following the 1994 loss of their home to fire. Their insurer, Pilot Insurance, appointed an independent adjuster but chose to reject his advice to pay the claim. Despite the unanimous conclusion of investigating authorities that there was no evidence of arson, the insurer denied the claim on the basis that the fire had been deliberately set. It then formulated a defence strategy that the Court found was intended to "starve the insureds into submission."
At trial, the jury awarded the Whitens compensatory damages of $320,000 for their proven losses resulting from the fire. The jury also awarded three times that amount - $1 million - in punitive damages for the steadfast refusal of the insurer to abandon its ill-founded defence to the claim. The Whitens' entitlement to punitive damages was upheld by the majority of the Ontario Court of Appeal, but was reduced in amount to $100,000. The dissenting member of the Court of Appeal concluded that the original punitive damages award of $1 million ought to be upheld.
A central issue in the case concerned whether, in what is ultimately a claim based on breach of contract, punitive damages can be awarded at all. The Supreme Court of Canada had itself established[2] that where breach of contract is alleged there must be an "actionable wrong" independent of that breach in order for punitive damages to be recoverable. Writing for the majority, Justice Binnie ruled that a refusal by an insurance company to deal with its insured in good faith constitutes an independent breach that permits punitive damages to be awarded
Extra-Contractual Liability In Québec
Extra-Contractual Liability In Québec
4. Extra-Contractual Liability In Quebec
In Quebec, the general regime for extra-contractual liability (comparable to common law tort liability) is set out in Article 1457 of the CCQ, which reads:
Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.
He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.
Subsequent articles in the Civil Code of Quebec deal with particular cases, such as liability for the act of a minor and liability for the act of a thing. To bring a successful action for extra-contractual liability in Quebec, a plaintiff must prove:
•Fault on the part of the defendant.
•Injury suffered by the plaintiff.
•A causal link between the fault and the injury.
4.1 Duty of Care
Unlike the common law, the civil law creates a generalized duty of care between all individuals living together in a society. While at first this may seem to broaden the scope of extra-contractual liability in Quebec, the civil law has adopted a more restrictive approach to both fault and causation to compensate.
4. Extra-Contractual Liability In Quebec
In Quebec, the general regime for extra-contractual liability (comparable to common law tort liability) is set out in Article 1457 of the CCQ, which reads:
Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.
He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.
Subsequent articles in the Civil Code of Quebec deal with particular cases, such as liability for the act of a minor and liability for the act of a thing. To bring a successful action for extra-contractual liability in Quebec, a plaintiff must prove:
•Fault on the part of the defendant.
•Injury suffered by the plaintiff.
•A causal link between the fault and the injury.
4.1 Duty of Care
Unlike the common law, the civil law creates a generalized duty of care between all individuals living together in a society. While at first this may seem to broaden the scope of extra-contractual liability in Quebec, the civil law has adopted a more restrictive approach to both fault and causation to compensate.
Quebec Civil Law
To participate*, you must submit a legal essay of
4000 to 6000 words answering the following question:
In the context of extracontractual liability under Quebec law, is it
reasonable to grant punitive damages to a plaintiff who has
not incurred any compensatory damages? And what are the applicable criteria and limits?
by March 31st, 2011
4000 to 6000 words answering the following question:
In the context of extracontractual liability under Quebec law, is it
reasonable to grant punitive damages to a plaintiff who has
not incurred any compensatory damages? And what are the applicable criteria and limits?
by March 31st, 2011
Tuesday, March 15, 2011
Welcome - Investment Arbitration Reporter (IAReporter)
Welcome - Investment Arbitration Reporter (IAReporter)Investment Arbitration Reporter Home News and Analysis Document Downloads Subscription Information PDF Editions About Us Contact Us
Browse News by Theme ICSID (World Bank)
UNCITRAL and Ad-Hoc
Stockholm Chamber International Chamber (ICC)
NAFTA ,CAFTA ,Energy Charter Treaty ,Argentine Disputes
Damages Determinations ,Intra-EU Treaties and Claims ,Treaty Negotiations
Arbitrator Challenges ,Amicus Curiae Interventions ,Annulment and Court Review
Energy Disputes ,Mining Disputes ,Telecoms Disputes ,Transportation Disputes
Environmental Disputes ,Human Rights ,Land Reform Disputes ,Stabilization Clauses
Anadarko Eyes Sonatrach Assets Seizure in Tax Dispute,...
Chevron Appeals Ecuador Judgment
Churchill chairman says East Kutai licences "remain...
Reliance, BG drag govt to *arbitration* on PMT dispute
Egypt names new foreign minister
New York Judge Stays Chevron Judgment, Orders Bond
Impax, Hudson Clean Energy Join Investors Suing Spain...
Temelín could persuade US to compromise on bilateral...
Oxus prepares for legal battle over Uzbek gold
News Headlines
Tribunal rules that mining company failed to waive local court proceedings, thus precluding CAFTA arbitration against El Salvador; hearings in a parallel case to air jurisdictional arguments next week
Cargill v. Mexico ruling finds three NAFTA breaches; publication of 2009 arbitral award delayed 17 months as redactions debated
Tribunal sees a high-bar for breach of NAFTA’s Minimum Standard of protection; doubts expressed as to impact of hundreds of BITs on customary international law
Mexico can’t justify its mistreatment of Cargill as counter-measures taken against the United States; ownership of NAFTA “rights” discussed anew
Mexico persists in battle to reduce $77 Million NAFTA debt; published damages award applied several notable discounts, including effect of social protests against investor’s product
Tribunal issues interpretation of award, and clarifies that it reinstated a contractual arbitration clause that had been extinguished under Jordanian law
ANALYSIS: Arbitrators in Malicorp v Egypt discuss definition of investment and investor conduct; tribunal warns that BIT arbitration should not be used to detour around contractual forums
VIEW MORE HEADLINES
--------------------------------------------------------------------------------
Document Downloads
Chevron v. Ecuador Interim Measures Order of February 9, 2011
Grand River Enterprises, et.al. v. U.S.A. Award of January 12, 2011
Fraport v. Philippines Decision on Annulment, Dec 23, 2010
Tidewater v. Venezuela Decision on Challenge to Arbitrator Stern, Dec 23, 2010
Cemex v. Venezuela Decision on Jurisdiction of December 30, 2010
Murphy International v. Ecuador Award of December 15, 2010
RSM v. Grenada (US-Grenada treaty case) Award of December 10, 2010
Globex v. Ukraine Award of December 1, 2010
Alpha ProjektHolding v. Ukraine Award of November 8, 2010
Eureko v. Slovak Republic Award on Jurisdiction of October 26, 2010
Fuchs & Kardassopoulos v. Republic of Georgia Award of March 3, 2010
EuroTelecom International v. Bolivia Application to Enjoin Arbitration, October 5, 2010
Gustav Hamester v. Ghana Award of June 18, 2010
AES v. Hungary Award of September 23, 2010
Cargill v. Mexico Ontario Court Ruling on Set-Aside, August 26, 2010
Browse News by Theme ICSID (World Bank)
UNCITRAL and Ad-Hoc
Stockholm Chamber International Chamber (ICC)
NAFTA ,CAFTA ,Energy Charter Treaty ,Argentine Disputes
Damages Determinations ,Intra-EU Treaties and Claims ,Treaty Negotiations
Arbitrator Challenges ,Amicus Curiae Interventions ,Annulment and Court Review
Energy Disputes ,Mining Disputes ,Telecoms Disputes ,Transportation Disputes
Environmental Disputes ,Human Rights ,Land Reform Disputes ,Stabilization Clauses
Anadarko Eyes Sonatrach Assets Seizure in Tax Dispute,...
Chevron Appeals Ecuador Judgment
Churchill chairman says East Kutai licences "remain...
Reliance, BG drag govt to *arbitration* on PMT dispute
Egypt names new foreign minister
New York Judge Stays Chevron Judgment, Orders Bond
Impax, Hudson Clean Energy Join Investors Suing Spain...
Temelín could persuade US to compromise on bilateral...
Oxus prepares for legal battle over Uzbek gold
News Headlines
Tribunal rules that mining company failed to waive local court proceedings, thus precluding CAFTA arbitration against El Salvador; hearings in a parallel case to air jurisdictional arguments next week
Cargill v. Mexico ruling finds three NAFTA breaches; publication of 2009 arbitral award delayed 17 months as redactions debated
Tribunal sees a high-bar for breach of NAFTA’s Minimum Standard of protection; doubts expressed as to impact of hundreds of BITs on customary international law
Mexico can’t justify its mistreatment of Cargill as counter-measures taken against the United States; ownership of NAFTA “rights” discussed anew
Mexico persists in battle to reduce $77 Million NAFTA debt; published damages award applied several notable discounts, including effect of social protests against investor’s product
Tribunal issues interpretation of award, and clarifies that it reinstated a contractual arbitration clause that had been extinguished under Jordanian law
ANALYSIS: Arbitrators in Malicorp v Egypt discuss definition of investment and investor conduct; tribunal warns that BIT arbitration should not be used to detour around contractual forums
VIEW MORE HEADLINES
--------------------------------------------------------------------------------
Document Downloads
Chevron v. Ecuador Interim Measures Order of February 9, 2011
Grand River Enterprises, et.al. v. U.S.A. Award of January 12, 2011
Fraport v. Philippines Decision on Annulment, Dec 23, 2010
Tidewater v. Venezuela Decision on Challenge to Arbitrator Stern, Dec 23, 2010
Cemex v. Venezuela Decision on Jurisdiction of December 30, 2010
Murphy International v. Ecuador Award of December 15, 2010
RSM v. Grenada (US-Grenada treaty case) Award of December 10, 2010
Globex v. Ukraine Award of December 1, 2010
Alpha ProjektHolding v. Ukraine Award of November 8, 2010
Eureko v. Slovak Republic Award on Jurisdiction of October 26, 2010
Fuchs & Kardassopoulos v. Republic of Georgia Award of March 3, 2010
EuroTelecom International v. Bolivia Application to Enjoin Arbitration, October 5, 2010
Gustav Hamester v. Ghana Award of June 18, 2010
AES v. Hungary Award of September 23, 2010
Cargill v. Mexico Ontario Court Ruling on Set-Aside, August 26, 2010
Canada-US Friends & Trading Partners
Canada and United States: Friends & Trading Partners Agreeing To Renew Vows
U.S. Commerce Secretary Gary Locke said on February 4, 2010 that "the United States is committed to a rules-based trading system where the American people - and the Congress - can feel confident that when we sign an agreement that gives foreign countries the privilege of free and fair access to our domestic market, we are treated the same." This statement was made amid rapidly circulating rumours that Canada and the United States have signed (in December 2009) and will announce on February 4th or 5th a deal that would exempt Canadian suppliers from "Buy America" provisions.
CTV's Ottawa Bureau Chief Robert Fife has provided a good summary of the rumoured deal:
•U.S. lawmakers "watered down" protectionist policies Wednesday night in the Senate. The clause had been attached to Washington's massive $900-billion stimulus program.
•Trade between Canada and at least 37 U.S. states will be opened up (the States that are represented in the WTO Agreement on Government Procurement.
•Canadian companies will be let in on seven major U.S. programs.
•The agreement is a precedent-setting for Ottawa, as it will prevent Canadian industry from being lumped in with other trading countries like China in the future.
•The delayed announcement may be due to a different approach in Canada and the U.S.
The Hamilton Spectator reports at the deal only covers contracts granted under the U.S. stimulus package, such as money is allocated for roads, public housing
U.S. Commerce Secretary Gary Locke said on February 4, 2010 that "the United States is committed to a rules-based trading system where the American people - and the Congress - can feel confident that when we sign an agreement that gives foreign countries the privilege of free and fair access to our domestic market, we are treated the same." This statement was made amid rapidly circulating rumours that Canada and the United States have signed (in December 2009) and will announce on February 4th or 5th a deal that would exempt Canadian suppliers from "Buy America" provisions.
CTV's Ottawa Bureau Chief Robert Fife has provided a good summary of the rumoured deal:
•U.S. lawmakers "watered down" protectionist policies Wednesday night in the Senate. The clause had been attached to Washington's massive $900-billion stimulus program.
•Trade between Canada and at least 37 U.S. states will be opened up (the States that are represented in the WTO Agreement on Government Procurement.
•Canadian companies will be let in on seven major U.S. programs.
•The agreement is a precedent-setting for Ottawa, as it will prevent Canadian industry from being lumped in with other trading countries like China in the future.
•The delayed announcement may be due to a different approach in Canada and the U.S.
The Hamilton Spectator reports at the deal only covers contracts granted under the U.S. stimulus package, such as money is allocated for roads, public housing
Sunday, March 13, 2011
Harper Government effectively privatizes Canada's water - News & Events - Sack Goldblatt Mitchell LLP
Harper Government effectively privatizes Canada's water - News & Events - Sack Goldblatt Mitchell LLP
SGM's Steven Shrybman recently told the the Standing Committee on International Trade that the Harper Government appears to have entered into a NAFTA settlement that will allow foreign investors to assert propriety claims to Canadian water.
In December 2008, AbitibiBowater announced the permanent closure of its Grand Falls-Windsor pulp and paper mill in Newfoundland. The Province claimed that AbitibiBowater had reneged on agreements to continue operating the mill, and that it had been granted water and timber rights on that condition. The Province then passed legislation expropriating AbitibiBowater's assets and terminating the water and timber licenses.
Rather than seeking recourse in the Canadian courts, AbitibiBowater filed an arbitration claim under NAFTA investment rules seeking $500 million in compensation. The claim not only sought compensation for the physical assets taken by the Province, but also for the loss of its water and forest licenses, which it referred to as "Water and Waterpower Rights" and "Timber Rights".
Instead of standing up for the public ownership of water and timber resources and refuting AbitibiBowater's claims to proprietary “rights” in Canadian public goods, the Harper Government entered into a $130 million consent judgment to settle the NAFTA claim. The potential consequences for the protection and regulation of Canada’s public resources are dire: the settlement goes farther than any NAFTA judgement to date, recognizing AbitibiBowater's “rights” to Newfoundland’s water and timber. This sets a precedent in which the obligation of governments to treat water as a public trust essential to both human well-being and biodiversity rank second to commercial and private interests.
SGM's Steven Shrybman recently told the the Standing Committee on International Trade that the Harper Government appears to have entered into a NAFTA settlement that will allow foreign investors to assert propriety claims to Canadian water.
In December 2008, AbitibiBowater announced the permanent closure of its Grand Falls-Windsor pulp and paper mill in Newfoundland. The Province claimed that AbitibiBowater had reneged on agreements to continue operating the mill, and that it had been granted water and timber rights on that condition. The Province then passed legislation expropriating AbitibiBowater's assets and terminating the water and timber licenses.
Rather than seeking recourse in the Canadian courts, AbitibiBowater filed an arbitration claim under NAFTA investment rules seeking $500 million in compensation. The claim not only sought compensation for the physical assets taken by the Province, but also for the loss of its water and forest licenses, which it referred to as "Water and Waterpower Rights" and "Timber Rights".
Instead of standing up for the public ownership of water and timber resources and refuting AbitibiBowater's claims to proprietary “rights” in Canadian public goods, the Harper Government entered into a $130 million consent judgment to settle the NAFTA claim. The potential consequences for the protection and regulation of Canada’s public resources are dire: the settlement goes farther than any NAFTA judgement to date, recognizing AbitibiBowater's “rights” to Newfoundland’s water and timber. This sets a precedent in which the obligation of governments to treat water as a public trust essential to both human well-being and biodiversity rank second to commercial and private interests.
Saturday, March 12, 2011
Fighting FTAs | Interview: Dawn Paley on Canada-Colombia trade agreement & militarization
multimedia | Canada | Fighting FTAs | Interview: Dawn Paley on Canada-Colombia trade agreement & militarization
Listen to an interview with journalist Dawn Paley speaking on the Canada-Colombia 'free trade' agreement and the impacts of U.S./Canada-backed trade policy in Colombia at the grassroots level in the country. Canada's Conservative government signed the contraversial trade accord with Colombia despite the wide spread political killings across the country targeting progressive activists, union organizers, student leaders and indigenous people, killings linked to right-wing paramilitary groups that maintain political links with multiple members of the current government of Juan Manuel Santos. A bilateral trade agreement between Colombia/U.S. is currently pending despite the reality of political violence in Colombia and mass internal displacement in the country often driven by multinational corporations that stand to benefit for a U.S.-backed bilateral agreement. -- Stefan Christoff
Listen to an interview with journalist Dawn Paley speaking on the Canada-Colombia 'free trade' agreement and the impacts of U.S./Canada-backed trade policy in Colombia at the grassroots level in the country. Canada's Conservative government signed the contraversial trade accord with Colombia despite the wide spread political killings across the country targeting progressive activists, union organizers, student leaders and indigenous people, killings linked to right-wing paramilitary groups that maintain political links with multiple members of the current government of Juan Manuel Santos. A bilateral trade agreement between Colombia/U.S. is currently pending despite the reality of political violence in Colombia and mass internal displacement in the country often driven by multinational corporations that stand to benefit for a U.S.-backed bilateral agreement. -- Stefan Christoff
Quebec Bar - For lawyers - Barreau du Québec
Training Catalog Bar - Continuing Education - For lawyers - Barreau du Québec
The reforms of water law in Quebec: Reflections on the consideration of climate change
Climate change is now a tangible impact across the globe. Although its manifestation is now acquired, it remains difficult, even risky, to predict in space and time that will create harmful impacts. According to a report by the Intergovernmental Panel on Climate Change (IPCC) in 2008, the water resources of the watershed area of St. Lawrence will not be spared. In this context risks but uncertain evidence, the use of the precautionary principle and the integrated management of water is essential. The reflection has the necessary perspective of community adaptation to climate change and raises the question of the role of water law in the management of water risks induced by this change. It is within this context that will be presented the new legal regimes and the new governance of water introduced in June 2009 by the Act to affirm the collective nature of water resources and to strengthen their protection, to see how new water law takes into account the water risks in a changing climate.
Paule Halley, Faculty of Law, University Laval
I Syltiane Goulet, the Directorate General of Legal Affairs and Legislative Department of Justice of Quebec
The reforms of water law in Quebec: Reflections on the consideration of climate change
Climate change is now a tangible impact across the globe. Although its manifestation is now acquired, it remains difficult, even risky, to predict in space and time that will create harmful impacts. According to a report by the Intergovernmental Panel on Climate Change (IPCC) in 2008, the water resources of the watershed area of St. Lawrence will not be spared. In this context risks but uncertain evidence, the use of the precautionary principle and the integrated management of water is essential. The reflection has the necessary perspective of community adaptation to climate change and raises the question of the role of water law in the management of water risks induced by this change. It is within this context that will be presented the new legal regimes and the new governance of water introduced in June 2009 by the Act to affirm the collective nature of water resources and to strengthen their protection, to see how new water law takes into account the water risks in a changing climate.
Paule Halley, Faculty of Law, University Laval
I Syltiane Goulet, the Directorate General of Legal Affairs and Legislative Department of Justice of Quebec
Tuesday, March 8, 2011
Ecuador Court Fines Chevron $8.6 Billion
Ecuador Court Fines Chevron $8.6 Billion | Kluwer Arbitration Blog On February 15th,2011
Today an Ecuador court fined Chevron $8.6 billion for environmental damage. According to the Wall Street Journal, $5.4 billion of that is to restore polluted soil, $1.4 billion to create a health system for the community, $800 million to treat individuals injured by the pollution, $600 million to restore polluted waters, $200 million to restore native species, $150 million to transport water, and $100 million to create a community cultural reconstruction program. The judgment in Spanish is available here. (English translation forthcoming)
Chevron responded to the judgment with the following statement:
The Ecuadorian court’s judgment is illegitimate and unenforceable. It is the product of fraud and is contrary to the legitimate scientific evidence. Chevron will appeal this decision in Ecuador and intends to see that justice prevails. United States and international tribunals already have taken steps to bar enforcement of the Ecuadorian ruling. Chevron does not believe that today’s judgment is enforceable in any court that observes the rule of law. Chevron intends to see that the perpetrators of this fraud are held accountable for their misconduct.
Amazon Watch responded with its own statement:
Today an Ecuador court fined Chevron $8.6 billion for environmental damage. According to the Wall Street Journal, $5.4 billion of that is to restore polluted soil, $1.4 billion to create a health system for the community, $800 million to treat individuals injured by the pollution, $600 million to restore polluted waters, $200 million to restore native species, $150 million to transport water, and $100 million to create a community cultural reconstruction program. The judgment in Spanish is available here. (English translation forthcoming)
Chevron responded to the judgment with the following statement:
The Ecuadorian court’s judgment is illegitimate and unenforceable. It is the product of fraud and is contrary to the legitimate scientific evidence. Chevron will appeal this decision in Ecuador and intends to see that justice prevails. United States and international tribunals already have taken steps to bar enforcement of the Ecuadorian ruling. Chevron does not believe that today’s judgment is enforceable in any court that observes the rule of law. Chevron intends to see that the perpetrators of this fraud are held accountable for their misconduct.
Amazon Watch responded with its own statement:
Reaching A Settlement Before the Arbitration Hearing
Reaching A Settlement Before the Arbitration Hearing | Kluwer Arbitration Blog
Reaching A Settlement Before the Arbitration Hearing
By Darius Chan
Will a court injunct arbitral proceedings if parties, before an arbitration hearing, allegedly reach a settlement agreement and a dispute subsequently arises over the existence of such an agreement? Is the tribunal functus?
Recently, the Singapore High Court in Doshion Ltd v Sembawang Engineers and Constructors Pte Ltd [2011] SGHC 46 (“Doshion”) rightly held that no injunction would lie in such an instance. It is a decision to be welcomed.
In that case, the two parties were parties to arbitration proceedings under certain construction contracts (“the Sub-Contracts”). The arbitration was scheduled to start on 28 February 2011. The claimant contended that an oral settlement was reached between the solicitors for the parties on 15 February 2011 and the arbitration proceedings should be terminated as of that date. The defendant denied the existence of any settlement.
The defendant characterised the claimant’s argument as one where the tribunal had become functus officio because of the settlement. The defendant cited a recent English High Court decision of Martin Dawes v Treasure & Son Ltd [2010] EWHC 3218 (“Dawes”) and contended that the issue of whether an arbitrator was functus went
Reaching A Settlement Before the Arbitration Hearing
By Darius Chan
Will a court injunct arbitral proceedings if parties, before an arbitration hearing, allegedly reach a settlement agreement and a dispute subsequently arises over the existence of such an agreement? Is the tribunal functus?
Recently, the Singapore High Court in Doshion Ltd v Sembawang Engineers and Constructors Pte Ltd [2011] SGHC 46 (“Doshion”) rightly held that no injunction would lie in such an instance. It is a decision to be welcomed.
In that case, the two parties were parties to arbitration proceedings under certain construction contracts (“the Sub-Contracts”). The arbitration was scheduled to start on 28 February 2011. The claimant contended that an oral settlement was reached between the solicitors for the parties on 15 February 2011 and the arbitration proceedings should be terminated as of that date. The defendant denied the existence of any settlement.
The defendant characterised the claimant’s argument as one where the tribunal had become functus officio because of the settlement. The defendant cited a recent English High Court decision of Martin Dawes v Treasure & Son Ltd [2010] EWHC 3218 (“Dawes”) and contended that the issue of whether an arbitrator was functus went
Monday, March 7, 2011
Morgan Stanley cancels all Libya oil trade
UPDATE 1-Morgan Stanley cancels all Libya oil trade -source | Energy & Oil | Reuters
LONDON, March 7 (Reuters) - Wall Street bank Morgan Stanley has stopped trading oil with Libya, a trade source said on Monday, in an early indication that sanctions could hit exports from the north African producer.
The firm cancelled all crude oil and refined products in the past week "due to the OFAC," the source familiar with the firm's transactions said, referring to the U.S. Office of Foreign Assets Control, which controls trade sanctions.
President Barack Obama signed an executive order on Feb. 25 freezing the assets of Libya's President Muammar Gaddafi, his family and top officials, as well as the Libyan government and the country's central bank.
Traders said Morgan Stanley has regularly sourced oil from the North African country to feed the UK Grangemouth and the French Lavera refineries but did not know how much the bank was buying from Libya.
The bank also traded gasoline with Libya, sources said.
Morgan Stanley declined to comment.
Most estimates suggest around half of the country's 1.6 million barrels per day (bpd) of oil production capacity has been suspended due to clashes between government forces and rebels.
Some trade sources expect other oil companies to follow the bank's lead and halt oil trade with Libya, effectively halting exports to the international market.
LONDON, March 7 (Reuters) - Wall Street bank Morgan Stanley has stopped trading oil with Libya, a trade source said on Monday, in an early indication that sanctions could hit exports from the north African producer.
The firm cancelled all crude oil and refined products in the past week "due to the OFAC," the source familiar with the firm's transactions said, referring to the U.S. Office of Foreign Assets Control, which controls trade sanctions.
President Barack Obama signed an executive order on Feb. 25 freezing the assets of Libya's President Muammar Gaddafi, his family and top officials, as well as the Libyan government and the country's central bank.
Traders said Morgan Stanley has regularly sourced oil from the North African country to feed the UK Grangemouth and the French Lavera refineries but did not know how much the bank was buying from Libya.
The bank also traded gasoline with Libya, sources said.
Morgan Stanley declined to comment.
Most estimates suggest around half of the country's 1.6 million barrels per day (bpd) of oil production capacity has been suspended due to clashes between government forces and rebels.
Some trade sources expect other oil companies to follow the bank's lead and halt oil trade with Libya, effectively halting exports to the international market.
Sunday, March 6, 2011
WTO treatment of a Carbon Tax
Peter Gallagher
In which I try briefly to describe the practical impact of WTO rules on the administration of a compensated carbon tax that is not levied on exports.
The huge volumes of recent commentary on the interaction of WTO rules and carbon emission taxes or administered markets ("emission trading schemes", ETS) contain a bewildering diversity of analysis. The matter is so contentious that the 2010 Copenhagen Accord of the UN Kyoto Protocol omitted any mention of trade measures that might be used to shore up domestic tax/ETS schemes if some large emitters (China, India, Japan) declined to make proportionate (or any) emission cuts.
In the present state of WTO jurisprudence the only thing we can say for sure is that any laws to levy a carbon tax on imports or to remit a domestic carbon tax on exports are likely to provoke nasty trade disputes; which is why the then-EC-Trade-Commissioner, Peter Mandelson, advised against putting any such border taxes on imports or tax-remissions on exports in place when the EU adopted its own ETS in 2005.
In which I try briefly to describe the practical impact of WTO rules on the administration of a compensated carbon tax that is not levied on exports.
The huge volumes of recent commentary on the interaction of WTO rules and carbon emission taxes or administered markets ("emission trading schemes", ETS) contain a bewildering diversity of analysis. The matter is so contentious that the 2010 Copenhagen Accord of the UN Kyoto Protocol omitted any mention of trade measures that might be used to shore up domestic tax/ETS schemes if some large emitters (China, India, Japan) declined to make proportionate (or any) emission cuts.
In the present state of WTO jurisprudence the only thing we can say for sure is that any laws to levy a carbon tax on imports or to remit a domestic carbon tax on exports are likely to provoke nasty trade disputes; which is why the then-EC-Trade-Commissioner, Peter Mandelson, advised against putting any such border taxes on imports or tax-remissions on exports in place when the EU adopted its own ETS in 2005.
Subscribe to:
Posts (Atom)