Miller Thomson Interview |
Posted July 2009 |
Responses provided by lead authors Jeffrey Carhart and James Proskurniak, along with Aaron Atcheson and James Klotz.
As the lead authors of the new Business Laws of Canada title, what inspired you to take on this project?
As business lawyers, we work closely with our clients as trusted advisors in guiding them through the myriad laws and regulations that affect their business investments and operations, often drawing on legal expertise from a broad range of practice areas.
As Canadian business lawyers, we often assist our non-Canadian clients in connection with their Canadian-based transactions, investments, and operations. Business Laws of Canada presented a unique opportunity to create a useful resource for non-Canadian lawyers and their clients to gain a working knowledge of a broad range of Canadian business laws, and to better prepare them for their dealings with Canadian business people and their counsel.
Considering your legal careers and daily practice in Canada, what do you find most challenging – and most rewarding?
Staying current with economic and industrial developments that affect our clients' businesses is both challenging and exciting. The recent credit crisis has created unprecedented business and legal issues and government involvement. For example, our firm was heavily involved in the $32 billion asset-backed commercial paper restructuring which charted new legal territory in several areas. The restructuring of the North American automotive industry has similarly presented several one-of-a-kind situations.
Of course, issues such as climate change and the introduction of green technologies give rise to a host of futuristic business and legal responses that can only be fulfilling and rewarding for those involved.
How do you see Canada distinguished from the United States, in terms of business laws and in terms of the country's economic and business climate?
Broadly speaking, Canada is distinguished by not having a federal securities regulator, and is instead regulated by a series of provincial securities commissions. Canadian laws continue to contain nationalistic elements such as foreign ownership controls and requiring a minimum number of Canadian citizens on the boards of certain Canadian corporations.
Jury trials are also the rare exception in Canadian court cases involving business disputes, which minimizes the possibility of some of the extreme jury awards that have been issued in U.S. business law cases.
Economically, Canada has so far weathered the recession fairly well, in part given government surpluses and lower accumulated government deficits coming into the recession. Canada's resource-based economy also appears to be poised for a sharper recovery once things begin to turn around.
The current crisis in the US automobile industry has worldwide effects. How do Canadians react, legislatively and commercially?
The North American automobile industry is highly integrated and, as mentioned in the preface to Business Laws of Canada, Ontario has in recent years manufactured more automobiles than Michigan. The Canadian federal government and Ontario provincial government have therefore made significant and proportionate contributions to the Chrysler and General Motors restructurings, although the Canadian subsidiaries of those companies have so far not made any formal insolvency filing.
What are some of the challenges and opportunities you see for Canadian business in, and with, the EU?
The EU is Canada's second-most important trade partner after the U.S., accounting for almost 10% of Canada's total external trade. This year, Canada and the EU have both expressed interest in commencing formal negotiations toward a free trade agreement between Canada and the EU.
Such an agreement would remove non-tariff barriers to the flow of goods, services, and capital between the EU and Canada. It would significantly increase the flow of trade between Canada and the EU, and is thus seen as a highly beneficial opportunity for Canadian business.
Where do you see NAFTA in the upcoming years?
Canada and the United States have prospered from expanding international trade and need to continue to work together to preserve the benefits of NAFTA. There is extreme danger in protectionism, and we see NAFTA being strengthened over the long term.
In the current situation, some of the weaknesses in NAFTA have been exposed insofar as, for example, the treaty not extending to certain measures taken by state and local governments in the United States. It will be important that these weaknesses are addressed so that the benefits of economic integration can be maintained.
Returning to Business Laws of Canada, what are the most important points readers should take away in order to ask the right questions before embarking on transactions in Canada?
While many cross-border laws have similar intentions and purposes, the distinction is always in the detail. For example, while several Canadian provincial jurisdictions have enacted franchise regulatory laws, they are generally not based on the United States uniform franchise laws.
Canada also has the special situation of being governed largely by a common-law system, except in the economically significant province of Quebec, which is governed by a civil law system and in which French is the official language.