“Mini-Conference”.  Montreal, March 8, 2012.  In celebration of, and cooperation with, the Canadian round of the Jessup, the CCIL is holding a mini-conference in Montreal, integrated with the Jessup competition.  This conference is free to CCIL members, and those who become CCIL members between now and then.  (If you attended the November conference, you are a member.  If not, please follow the link below to find out more about becoming a member.)  The conference will address themes drawn from this year’s Jessup problem and from both the CCIL 2011 conference (culture and international law) and the 2012 conference (international law and crises and emergencies).  For more see: CCIL – Mini-conference

2012 Annual Conference.  Save the Date!  The 2012 CCIL Annual Conference will be held on November 8-10, 2012 in Ottawa.  The theme is International Law and Crises and Emergencies.  More details and a call for papers will follow in a few weeks.  We look forward to welcoming Philippe Sands as one of our keynote presenters.

The “Four Societies”.  The CCIL in association with its American, Japanese and Australian/New Zealand counterparts has issued a call for papers for the next “Four Societies” workshop, scheduled for California in September 2012.  Responses to the call are due on March 1, 2012.  For more see: CCIL – Call for Papers – “International Law and Disasters” – The Fourth International “Fostering a Scholarly Network” Four Societies Conference

The CCIL Review.  We are pleased to announce the “rolling start” or a new “blournal” – a combination of a blog and a journal.  We have a number of articles that have now been posted.  Students have crafted these as part of directed research projects.  We welcome more contributions!  If you have students who you are willing to supervise for the purposes of producing new articles, please let me know.  (And yes, there is a readership – we have even received press inquiries in response to some of the articles).  For more see: CCIL – CCIL Review

The Veteran’s Scholarship.  The CCIL is fundraising for a new scholarship.  The CCIL Veterans Scholarship will provide tuition support to a Canadian Forces veteran with an interest in international humanitarian law entering or pursuing legal studies at the JD or LL.B. level in a Canadian law school.  As president of the CCIL, I am actively fundraising in support of this scholarship along with some former students who are now practicing law.  To this end, we are completing a series of endurance sporting events through 2012.  (Tomorrow, I lace on skates, skis and shoes, in that order, for the first one.)  You can find our more here: CCIL Veterans Scholarship.  We would be very grateful if you would please consider supporting this initiative.  Donations can be made on-line through CanadaHelps (again, follow the link above).  Moreover, our team — Citizen Athlete — is looking for more members willing to make this their fundraising goal for 2012.  Please contact me if you are interested.

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For more information see the CCIL website at:

Canadian Council on International Law

The National Competition Law Section of the Canadian Bar Association will be holding a teleconference on February 29, 2012 entitled: “Criminal Conspiracy or Legitimate Competitor Collaboration?  Tips for In-House Counsel”

From the Canadian Bar Association:

“Authorities have recently noted their first conviction under Canada’s amended conspiracy law, commenting: “[This investigation] highlights the Bureau’s reinvigorated mandate to stop consumer harm caused by price-fixing, and to secure significant fines for these serious criminal offences.” 

In-house counsel practising competition law are often asked to evaluate the competition law risks associated with activities such as joint selling initiatives, joint ventures, buying groups, participation in trade associations, and merger transactions.  As such, in-house counsel are an organization’s first line of defence to identify potential illegal arrangements to fix prices, allocate markets or restrict output, that create risks of criminal investigation and prosecution; and that can result in significant fines, imprisonment, damage to an organization’s reputation, and civil damage claims.

The line between criminal conspiracies and pro-competitive strategic alliances among competitors, however, can at times be difficult to detect. It is critical that in-house counsel have the tools necessary to distinguish benign or pro-competitive activity from potentially criminal conduct.”

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For more about this teleconference see:

Criminal Conspiracy or Legitimate Competitor Collaboration?  Tips for In-House Counsel

For more about Canada’s amended conspiracy laws and our compliance services see:

Conspiracy (Cartels)

Competition Law Compliance Programs

Hakemi & Company

In making the announcement, the Bureau said:

“Two of the accused, Gary Neiderer and Fabien Chouinard are territorial managers employed by Sonic. They were sentenced today to fines of $3,000 and $4,000 respectively. The other five accused are service stations owners. Jacques Blais and Louis Blais operated under the Shell banner. Luc Fecteau, Yvan Grondin and Jacques Robert operated under the Esso banner. The five owners were each sentenced to fines of $5,000.

Charges were laid in June 2008 and July 2010 against 38 individuals and 14 companies for fixing the price of gas at pumps in Victoriaville, Thetford Mines, Magog and Sherbrooke, Quebec. As of today, 21 individuals and six companies have pleaded guilty in this case, with fines totalling over $2.8 million. Of the 21 individuals who have pleaded guilty, six have been sentenced to terms of imprisonment totalling 54 months.”

The Bureau has also significantly expanded its summary of investigations into gasoline pricing in Canada, presumably based on the number of complaints and inquiries the Bureau receives relating to gas prices – see: Investigating Cartels – Gas Prices.

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For more information about price-fixing laws in Canada see:

Conspiracy (Cartels)

According to the Star, at a Dx3 Canada digital trade show earlier today Mr. Parent said:

“Online behavioral advertising is when we identify you as a user. … People wonder, Is this Big Brother? … Do they know what color hair I have?  Do they know my age and income?”

These remarks, and marketers’ decision to introduce self-regulation to govern “behavioral advertising” (defined by the Office of the Privacy Commissioner as “tracking consumers online activities over time in order to deliver advertisements targeted to their inferred interests”), are presumably intended to circumvent legislative and regulators’ efforts to impose restrictions on behavioral advertising.

For example, on December 6, 2011, the federal Privacy Commissioner Jennifer Stoddart announced new online tracking guidelines for advertisers which, among other things, restrict the tracking of children and tracking technologies people can’t opt out of (i.e., turn off) (see: Privacy Commissioner Issues New Online Behavioural Advertising (Tracking) Guidelines).

In announcing new industry self-regulatory measures, Mr. Parent also made a distinction between tracking “devices” as opposed to “people”: “Actually, we are identifying your device, not you …”

According to the IAB, under the advertising industry’s new self-regulation regime, online ads that reach users through behavioral tracking will soon carry arrow-shaped icons in the top right hand corner that, when clicked, will take users to a new website called Privacy Matters Canada where targeted advertising will be explained and users will be given a chance to opt out.

These recent behavioral advertising developments clearly illustrate that advertisers are moving rapidly away from traditional forms of advertising and marketing (e.g., direct mail, print advertising, etc.) and that this is proving challenging to legislators and law-makers to effectively regulate.

The Antitrust Law Section of the American Bar Association and the International Bar Association (IBA) will be holding their bi-annual International Cartel Workshop in Vancouver from February 1-3, 2012 at the Fairmont Hotel Vancouver.

From the American Bar Association:

“The International Cartel Workshop, recognized globally as the premier international cartel program offered anywhere, is presented only once every two years. The next Workshop, which will have many new features, will be held in Vancouver, Canada during February 1-3, 2012.  The 2012 program will continue the Workshop’s tradition of instruction by demonstration, with experienced faculty from around the globe taking you inside a hypothetical international cartel matter — from detection by government enforcers to the disposition of government prosecutions and private damage claims.  The Workshop will also highlight new developments in the law and leniency practices around the world, with leading enforcers and experienced private practitioners demonstrating how critical decisions are made on both sides of the table and providing examples of important interactions between counsel and enforcers.  The 2012 Workshop’s international faculty includes many of the most accomplished cartel attorneys in the world, as well as the most senior cartel enforcement officials from a variety of jurisdictions.”

For more information about the joint ABA/IBA Cartel Workshop see:

American Bar Association – Antitrust International Cartel Workshop

The Section of Antitrust Law of the American Bar Association will be holding its 60^th Antitrust Spring Meeting in Washington from March 28^th to 30^th 2012.

From the ABA:

“Please plan to be in Washington, DC this year for the 60th ABA Section of Antitrust Law Spring Meeting.   Spring Meeting is the Antitrust Bar’s premiere conference, offering the most comprehensive review of developments in antitrust and consumer protection law, training, and networking opportunities available anywhere.  In this time of belt-tightening, the Spring Meeting is the one conference that you cannot afford to miss.

The Spring Meeting programming covers cutting-edge antitrust and consumer protection issues featuring a faculty of government enforcers and leading practitioners, corporate in-house counsel, and economists and academics from around the globe.  To best meet your needs, the program is organized to offer separate tracks for sessions covering international issues, litigation, and consumer protection.  There is sure to be something of interest for everyone, from the least to most experienced lawyers.”

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For more information see:

ABA Section of Antitrust Law – 60th Antitrust Spring Meeting

The Canadian Institute will be holding an Anti-Corruption and Bribery Compliance conference from Monday January 30 to Tuesday January 31, 2012 at the Four Seasons Hotel, Toronto, Ontario.

From the Canadian Institute:

“Not only are multinationals subject to U.S. and U.K. legislation. In Canada, serious enforcement of anti-bribery and corruption legislation has begun, with a $9.5 million penalty imposed on Niko Resources, a recent high-profile raid on SNC Lavalin, and rumours of as many as 30 investigations currently under way. How confident are you that your foreign representatives, joint venture partners and contractors will withstand scrutiny?

The Canadian Institute’s Anti-Corruption and Bribery Compliance conference will provide you with the tools and strategies you need in order to remain compliant. Attend this conference and you will: receive up-to-date information on Canadian, U.S. and new UK legislation; hear from the RCMP about current enforcement measures; learn about the Niko case from the investigator and prosecutor involved; get practical advice on cost-effective compliance measures and what to do if you are under investigation; benefit from small-group discussion on what you would do in various scenarios.

Speakers include holders or former holders of the following positions: officer in Charge of Sensitive Investigations in International Corruption, RCMP; Deputy Attorney General of the United States; Supervisory Special Agent, FBI International Corruption Unit; Criminal Chief and Deputy Chief of the Fraud Section at the U.S. Department of Justice; President of Trace International, Inc.”

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For more information see:

Anti-Corruption and Bribery Compliance

The Canadian Marketing Association will be holding a one-day seminar on January 24, 2012 on non-for-profit marketing: “Marketing Online Successfully”.

From the Canadian Marketing Association:

“If you’re a not-for-profit marketer who’s looking for a quick way to become more comfortable with and proficient at Internet direct marketing – this seminar is for you!

With the CMA’s Intensive One-Day Internet Marketing Seminar for Not-For-Profit marketers, you’ll save time, skip the aggravation and quickly move up your Internet marketing learning curve as you join a select group of Canadian not-for-profit marketers for a practical, interactive, hands-on session on Internet direct marketing.

Content areas will include: recap of online Canadians’ habits and usage; discussion about mobile, video and other upcoming trends; review of results tracking methodologies; in-depth look at direct response Internet media and pay per click search engine marketing as a basis for building SUCCESSFUL acquisition and advocacy based direct response campaigns; and real life examples and case studies of not for profit marketers who are doing Internet marketing right.

The seminar is led by Jay Aber, President of The Aber Group Inc., a leading Internet-based direct marketing firm whose clients include Plan Canada, WWF-Canada, Heart & Stroke, Habitat for Humanity, American Express, Sun Life & Stratford Shakespeare Festival among many others. In addition to his other accomplishments, Jay chaired the Digital Marketing Council for the CMA for six years and wrote and taught the inaugural CMA’s e-Marketing (now Digital Marketing) course.”

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For more information see:

Canadian Marketing Association – Not-For-Profit Seminar: Marketing Online Successfully

In making the announcement, which were part of remarks made at the Marketing and the Law Conference in Toronto (see: “Respecting Privacy Rights in the World of Online Behavioural Advertising”, Remarks by Jennifer Stoddard, Privacy Commissioner of Canada at the Marketing and the Law Conference (Toronto, December 6, 2011)), the Privacy Commissioner said:

“The use of online behavioural advertising has exploded and we’re concerned that Canadians’ privacy rights aren’t always being respected. 
Many Canadians don’t know how they’re being tracked – and that’s no surprise because, in too many cases, they have to dig down to the bottom of a long and legalistic privacy policy to find out. …

Some people like receiving ads targeted to their specific interests.  Others are extremely uncomfortable with the notion of their online activities being tracked.  People’s choices must be respected.”

The new guidelines, intended to assist organizations engaged in online behavioural advertising to ensure that their practices are “fair and transparent” and compliant with the Personal Information Protection and Electronic Documents Act (PIPEDA), say that information about behavioural advertising should be clear, obvious and understandable and that people should be able to easily able to opt out.  (The Office of the Privacy Commissioner defines “behavioural advertising” as tracking consumers online activities over time in order to deliver advertisements targeted to their inferred interests.)

The new guidelines set out several specific restrictions regarding the use of behavioural advertising, including the ability to opt out, restricting the use of “web bugs or web beacons, super cookies, pixel hacks or device fingerprinting” or other types of “covert tracking” technologies where a user is unaware and cannot decline behavioural advertising and restrictions on the collection of certain types of health information, including health information.

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For the complete news release see:

New online advertising guidance sets out restrictions for tracking

For the new guidelines see:

Privacy and Online Behavioural Advertising

The Industry Minister’s comments closely follow a C.D. Howe Institute report also issued last week calling for fundamental changes to the ICA to stimulate foreign direct investment in Canada, including a change to the overarching test for foreign investment approval (replacing the current “net benefit to Canada” test with a national interest test) (see: New Publications – C.D. Howe Institute Report – Reforming the Investment Canada Act: Walk More Softly, Carry a Bigger Stick).

In the C.D. Howe Institute’s report, its authors Philippe Bergevin and Daniel Schwanen criticize the current test for approval under the ICA as “highly subjective and unpredictable”, arguing that by adopting a national interest test “Canada could reduce uncertainty and costs to businesses while improving transparency and accountability with respect to Canadians and foreigners alike, without compromising the federal government’s ability to implement national objectives and policies.”

Some of the highlights of the C.D. Howe Institute’s recent report include:

- The OECD ranks Canada as one of the most restrictive places in which foreigners can invest, especially among its OECD peers.

- Canada receives poor FDI rankings internationally based on the fact that it is one of the few countries with a formal investment review or screening process for all proposed foreign investments above a certain threshold (which is also lower than in most other advanced countries with similarly general and compulsory screening processes).

- Concepts that are not formally recognized under the ICA are “creeping into” Canada’s foreign investment review process: “[w]hile national security is a concept whose application sometimes can be used to shield industries from change for purely protectionist reasons, an even more elastic concept, and one that is creeping into Canadian debates on FDI even though it has no basis in the Investment Canada Act is that of ‘strategic’ economic sectors, firms, or other assets such as natural resources.  Simply by virtue of being dubbed ‘strategic’, these assets, the argument goes, should be protected from foreign ownership.”  One recent example being the debate around BHP’s proposed $40 billion hostile bid for Potash Corporation last year, for which approval was refused (which raised widespread debate about whether Potash was a “strategic asset”).

- The authors of the report argue that the current reliance on a net benefit test is unsatisfactory from the point of view of both openness to productive foreign investment and also the desirability of maintaining “a clear, predictable, transparent, and accountable foreign investment review regime”.

- On this basis, they argue that a “more encompassing, but clearer and more meaningful test” should be adopted – namely, a national interest test, which would consider if a proposed investment would threaten the Canadian government’s ability to (i) apply Canadian laws as to a similar Canadian investor or (ii) achieve significant policy objectives (including national security).

In an interesting, though critical, op-ed article in last Friday’s National Post (see: Foreign Investment Needs a Better Test), the authors of the C.D. Howe Institute report had this to say about the current test for review under the ICA:

“What difference does the net benefit test make? That’s not possible to quantify because we don’t know what future economic activity would have occurred had a blocked acquisition taken place. What’s more is that while sounding objective, the net benefit test is secretive and unpredictable, and often prevents the government from clearly articulating why it would oppose a proposed investment.

If the federal government examined large acquisitions of Canadian-owned firms by other Canadian-owned firms on the same basis, we would be correct in concluding that its actions represented an intrusive and ineffectual form of interventionist industrial policy. In the context of the Investment Canada Act, however, such intervention is acceptable because the investor is foreign – that is, the policy discriminates against foreign investors, and against Canadians who want to sell what they own to foreign investors.”

In his recent remarks following the C.D. Howe Institute’s report, Minister Paradis said that “we are always open to improving the regime” and that “if there are some things we can do to better address this and provide certainty, we will certainly be happy to look into it.”

Given, however, that some amendments to the ICA made in March 2009 are still not in force, including raising the monetary threshold for review of direct investments by WTO investors and altering the test to calculate a Canadian business’ assets (based on the “enterprise value”, or essentially market value, of the assets of the Canadian business rather than gross book value), it is unclear whether any significant changes to the ICA can be expected anytime soon.

Having said that, following the failed BHP bid for Potash last year, then Minister of Industry Tony Clement said that Canada’s existing foreign investment review regime needed to be reviewed to provide “greater clarity to Canadians and greater certainty to international investors.”

This led to a move for the federal Industry Committee to review the ICA, including based on concerns relating to the level of transparency of Ministerial review.  While the Industry Committee’s review of the ICA was interrupted by the last federal election, it remains to be seen whether the recent renewed criticisms of the ICA will result in another Government review of the existing ICA review regime.

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For more information about Canada’s Investment Canada and merger control rules see:

Investment Canada

Merger Control

For the C.D. Howe’s recent report, entitled Reforming the Investment Canada Act: Walk More Softly, Carry a Bigger Stick see:

Better Foreign Investment Rules Needed for Canada