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Archive for the ‘Administrative Law’ Columns

Supply Management and CUSMA, Part IV: A Rematch and a New Challenger…a Never-Ending Story

This March, we reviewed the ruling in the Canada United States Mexico Agreement (CUSMA) challenge of Canada’s Dairy Tariff Rate Quotas (TRQs)[1]. The Panel found that Canada’s practice of reserving 85-100% of dairy TRQs for processors violated Article 3.A.2.11(b) of CUSMA. Citing the principle of “judicial economy,”[2] the panel members left it for the two sides to work out a solution without applying the strict guidelines the United States was seeking.

At the time, we queried whether the combination of the lack of a strict roadmap and strong domestic pressures in both countries would lead to further . . . [more]

Posted in: Administrative Law

Canada Study Permit Litigation – Critical Analysis of Inconsistent Jurisprudence on Financial Requirement

Early this year, Justice Little of the Federal Court released the much-awaited decision in Ocran v. Canada (Citizenship and Immigration), 2022 FC 175 (CanLII). I am not aware of any study permit judicial review litigation that attracted the attention of Canadian immigration lawyers as much as Ocran. The notoriety of this judicial review litigation was based on the fact that it was a test case that the Department of Immigration, Refugee and Citizenship Canada (IRCC) sought to use to obtain judicial approval for its use of the controversial Chinook software in processing of immigration applications. That approval . . . [more]

Posted in: Administrative Law, Substantive Law

The State of Administrative Law Teaching: A Review of Administrative Law in Context

Yes, Virginia, there is an administrative law.

But what is it?

…It is now recognized. But it is not quite accepted. It fits no antique mould. Not knowing just what it includes, the legal profession has never felt quite at ease with it nor quite known how to handle it.

Albert Abel, “The Dramatis Personae of Administrative Law”, 1972

“Administrative law is not for sissies — so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture. There will be a quiz afterwards.”

Justice Antonin Scalia, “Judicial Deference to . . . [more]

Posted in: Administrative Law, Dispute Resolution

CUSMA Dairy Challenge, Part III: Glass Half Full or Pyrrhic Loss?

On January 4, 2022, the Canada United States Mexico Agreement (CUSMA) Panel on Canada’s Dairy Tariff Rate Quotas (TRQs) released its ruling.[1]

The Panel Decides—Both Sides Claim Victory

The Panel ruled that Canada’s practice of reserving 85-100% of dairy TRQs for processors violated Article 3.A.2.11(b) of CUSMA. The United States claimed victory, correctly pointing out that the Panel had accepted the U.S. argument on the central issue. As per USTR Katherine Tai:

This historic win will help eliminate unjustified trade restrictions on American dairy products and will ensure that the U.S. dairy industry and its workers get the full . . . [more]

Posted in: Administrative Law

APEC’s Indigenous Peoples Economic and Trade Cooperation Arrangement (IPETCA)

On December 10, 2021, New Zealand’s Minister of Foreign Affairs and Associate Minister for Māori Development, Nanaia Mahuta, and Minister of Trade and Export Growth, Damien O’Connor, announced the successful conclusion of the Indigenous Peoples Economic and Trade Cooperation Arrangement (IPETCA) and invited other APEC economies to declare their intention to join.[1] Canada’s Minister of International Trade, Export Promotion, Small Business and Economic Development, Mary Ng, announced Canada’s endorsement of IPETCA on the same day.[2]

The IPETCA represents to unique new step for Indigenous participation in the global economy. It is a trade arrangement collaboratively developed by New . . . [more]

Posted in: Administrative Law

Toward a Unified Theory of Administrative Law?

“Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan.”

Justice David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency

“The “Quest”, shall we say, for a unified theory of Administrative Law is a constant yearning or aspiration but such a theory, in my view, is probably unattainable, in large measure because there occurs, all along, these repeated shifts in values, and these cognitive or epistemic shifts, in what we consider just or

. . . [more]
Posted in: Administrative Law, Dispute Resolution

CUSMA Dairy Challenge, Part II: Canada v United-States

The United States has taken the next step in its trade dispute with Canada and asked for the establishment of a panel to examine its complaint regarding Canada’s administration of its tariff-rate quotas (TRQ) allocations for 14 dairy products.[1]

In its request, the United States Trade Representative (USTR) [2] claims that Canada’s allocation of import quotas exclusively to “producers” violates the terms of Canada’s commitments in the schedule to annex 2-B[3] of the Canada-United States-Mexico Agreement (CUSMA). The request was made pursuant to Article 31.6 state-to-state dispute resolution provisions available when a CUSMA party’s rights have been nullified . . . [more]

Posted in: Administrative Law

More Canada-U.S. Pipeline Problems – Michigan’s Push to Shutdown Line 5

The state of Michigan has demanded that a Canadian company, Enbridge Energy Company (Enbridge), close the portion permitted by an easement of its oil pipeline—Line 5—that crosses the Straits of Mackinac, which joins Lake Michigan and Lake Huron. Line 5 is an interstate, interprovincial, and international pipeline, owned and operated by Enbridge. It is used to transport petroleum products from Wisconsin, through Michigan, to Ontario, Québec, and further locations in Canada.[1]

Michigan’s Notice of Termination of the easement applies to a 4-mile portion of dual lines along the lake floor and ordered Enbridge to cease operation by May 12, . . . [more]

Posted in: Administrative Law

COVID-19 International Trade in a Time of Crisis: Pandora’s Box Revisited, Part I

The spectre of “vaccine nationalism” is one of the recent challenges that the global COVID-19 pandemic has brought us. The immediate and primary focus of governments has been the serious threat to the health of their populations. The resulting economic challenges have been “game changing.”

At the end of January 2021, the European Union became the first major trading power to introduce export controls on COVID-19 vaccines.[1] Other countries have considered export bans. In India, the domestic Serum Institute has been directed to prioritise the needs of India.[2] The U.S. and UK governments have signed contracts . . . [more]

Posted in: Administrative Law

CUSMA Dairy Challenge: “Déjà Vu All Over Again …”

On December 9, 2020, the United States took the initial step in the first formal trade dispute under the newly minted (July 1, 2020) Canada-United States Mexico Agreement (CUSMA). The U.S. Trade Representative (USTR) made a formal request for consultations with respect to Canada’s import limits on a variety of dairy products, claiming that these measures unfairly restrict U.S. dairy farmers’ access to the Canadian market contrary to CUSMA Article 3.A.2 of CUSMA.[1] Pursuant to CUSMA Chapter 31, the United States may request the establishment of a dispute settlement panel if the matter is not resolved by consultations.

While . . . [more]

Posted in: Administrative Law

No Trivial Matter

I am a big fan of trivia. I am pretty much undefeated in any game of Trivial Pursuit since the mid-1980s[1]. One night years ago my family thought they might defeat me playing a DVD-video based version of the game. My victory that night has become family legend.[2]

A piece of trivia I recently learned was that the Audi automobile company takes its name from the legal maxim, audi alteram partem. The founder, August Horch, could not use his surname as it was part of the trademark of his former company. “Horch” in German means “hear”. . . . [more]

Posted in: Administrative Law

WTO National Security Exception – Strike Two!

Authors’ note: U.S. trade policy may well be affected by the results of the November 3rd election, which this column was written prior to. 

In February 2020,[1] we took note of the first adopted WTO dispute settlement panel to interpret the GATT 1994 Article XXI national security exception: Russia – Traffic in Transit.[2] Now in Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (“Saudi – IP”),[3] we have a second panel that deals with the defence.

Addressing a complaint by Qatar, the Panel found that it had established a prima facie case that the Kingdom . . . [more]

Posted in: Administrative Law