The Global Employer: 2015 Review and 2016 Preview

2015 was another busy year in terms of legal changes and developments around the world. In this 2015 Review and 2016 Preview edition of the Global Employer Magazine we summarize some of these important changes. In the 2015 Review of developments and trends tables below we have set out some of the main developments that took place in 2015 and provided recommended actions or tips on how employers should operate in light of these developments in 2016. For some countries, instead of covering developments, we have referred to trends that we saw in 2015 and again, set out some actions to help employers deal with these trends in the relevant country in 2016. In the 2016 Preview of important forthcoming changes tables, we preview pending legislation and case developments for which employers should stay tuned . Please note that, as there were so many developments, we haven\u27t been able to cover them all. Instead, we have chosen some of the most important or interesting developments. Where possible, we have also added a general impact rating to help show the significance of some of the developments, with 5 being a very significant or important development. Of course, the significance and importance of the development is subject to each employer\u27s circumstances. In addition, some of the entries don\u27t have a rating due to the fact that they include only general commentary on developments, trends or potential political changes. The information below is provided by region in the following order: Asia Pacific, Europe Middle East & Africa, Latin America and North America

Compulsory Arbitration - What Is It?

The identification of arbitration as it is constituted in legal lore is not very difficult. There is a near consensus of judicial utterances and statutory provisions posing it as a process for hearing and deciding controversies of economic consequence between parties. It begins with and depends upon an agreement between the parties to submit their claims to one or more persons chosen by them to serve as their arbitrator. The identification of compulsory arbitration is more difficult; it is more elusive. The instances or particulars of compulsion as covered by the name compulsory arbitration in legal lore, vary substantially. They are to be found in different statutes. The administration of these compulsions and the consequences of disregarding them also are variable. Joinder of any of these instances or particulars of compulsion with arbitration seems to serve no useful purpose in evaluating their legality. Some of them appear to be an anathema to parties in interest and to politicians. Other and different instances have been cited as praiseworthy. Arbitration does not count for much in resolving these likes and dislikes

Protecting the Watchdog: Using the Freedom of Information Act to Preference the Press

The fourth estate is undergoing dramatic changes. Many newspaper reporters, already surrounded by a growing number of empty desks, are shifting their focus away from costly investigative reporting and towards amassing Twitter followers and writing the perfect “share line.” Newspapers’ budgets can no longer robustly support accountability journalism and pitching fights against the government. And so, while this busier and noisier media environment may have a desirable democratizing effect—more of us are able to participate in analyzing, debating, and perhaps even making the news—it has not succeeded in filling a role that print journalists have traditionally played well—keeping watch on the government. In order to perpetuate its historical role as watchdog, the fourth estate needs fortification. This fortification should come in the form of legal preferences for the press. Providing such preferences is not new, but it arguably has not been done in a significant way since postal subsidies were granted to newspapers in the colonial era. Today, with few exceptions, the law generally treats journalists just like any other citizens and news organizations like any other business. This article proposes a new way to preference the press—one that would not involve direct subsidies or discriminating between old media and new. Instead, it would give journalists a commodity that is fundamental to their work: information. To preference the press, this article looks to the Freedom of Information Act, the law governing when and how the executive branch discloses information to the public. While in theory the law facilitates the press’s access to vast amounts of information in the hands of the executive branch, implementation of FOIA has, since it was passed in 1966, been fraught with problems. Agencies routinely take months and even years to respond to journalists’ requests, making the process incompatible with a news cycle that is spinning ever faster. This article proposes focusing on FOIA’s expedited processing provisions to prioritize journalists’ requests over those of other requesters, expedite agency fulfillment of them, and ease the press’s ability to challenge late, incomplete, or otherwise unsatisfactory disclosures. It argues that any journalist filing a FOIA request seeking expedited processing should presumptively go to the front of the queue. At that point, there would be firm deadlines (where none exist now) for providing the journalist with the information requested. These small but significant changes to an already established provision of FOIA could help the media better serve as a watchdog at a time when that role needs protecting

Cutting Through Pension Complexity: Easy Steps Forward for the 2010 Federal Budget

Ottawa has an opportunity in the 2010 Federal Budget to improve retirement saving prospects for many Canadians. In a paper released today, the author outlines straightforward, no-regrets ways Ottawa can facilitate more saving and make cost-effective risk-pooling available to the majority of Canadians in defined-contribution (DC) plans and registered retirement savings plans (RRSPs).Pension Papers, Financial Services, defined-benefit (DB) plan, defined-contribution (DC) plan, registered retirement savings plan (RRSP)

A Hiatus in Soft-Power Administrative Law: The Case of Medicaid Eligibility Waivers

Administrative law is fundamentally a regime of soft power. Congress, the President, administrative agencies, civil servants, and the courts all operate within a broad consensus for rational, good-faith decisionmaking. Congress grants agencies discretion, and courts and civil servants defer to agencies’ political leadership based largely on the expectation that the latter are seeking to honor statutes’ purposes. That expectation of prudential restraint also allays concerns about delegations of legislative power. When the executive systematically disregards that expectation and seeks single-mindedly to maximize achievement of its policy objectives, deference’s justification breaks down. Across agencies, the Trump administration has disregarded the assumptions on which administrative law’s soft power consensus depends. Its waivers allowing states to deny Medicaid to otherwise eligible low-income people unable to find employment exemplifies this disregard. Exploiting a sweeping delegation of authority to test new ways to achieve Medicaid’s goal of providing health care coverage, this administration has instead sought to achieve very different goals, from legislation that Congress has rejected. The waiver applications themselves estimate substantial increases in the numbers of uninsured people. Ignoring the administration’s disregard of the longstanding administrative law consensus could deter future Congresses from valuable delegations of discretion. Permanently abandoning the deferential soft-power model would seriously undermine future governance. Instead, courts and civil servants should treat this period as a hiatus in consensus for good-faith decisionmaking. Courts should suspend deference and other aspects of soft-power jurisprudence. And civil servants should comply with political officials’ lawful directions but should remain steadfastly truthful in their words and actions

NAFTA Chapter 11 Investor-State Cases: Lessons for the Central America Free Trade Agreement

This report describes how Canadian cattle producers are using NAFTA to demand $300 million in compensation from U.S. taxpayer funds, claiming that the Canadian cattle import ban instituted after mad cow disease was found in Canada violates their NAFTA rights. In addition, a Canadian tobacco company is using the private NAFTA tribunals to attack the U.S.tobacco settlements. These claims are among the 42 cases filed thus far by corporate interests and investors under NAFTA's "Chapter 11" investor provisions, which grant foreign interests more expansive legal rights and privileges than those enjoyed by U.S. citizens or corporations. With only 11 of the 42 cases finalized, some$35 million in taxpayer funds have been granted to five corporations that have succeeded with their claims. An additional $28 billion has been claimed from investors in all three NAFTA nations. The U.S. government's legal costs for the defense of just one recent case topped$3 million. Seven cases against the United States are currently in active arbitration. The report documents how "fixes" to the NAFTA investor protection model required by Congress in the 2002 "Fast Track" legislation were not included in the proposed CAFTA. CAFTA's investment provisions include several cosmetic, ineffective tweaks to the NAFTA investor protection language, but otherwise expand the system of new privileges and private enforcement to investors in six additional nations. These rights include the ability to demand compensation when public health and environmental policies -- even when applied equally to domestic and foreign firms -- might undermine a foreign firm's profitability. On this ground and others, CAFTA fails to meet Congress' most significant Fast Track requirement regarding investment rules in future pacts by granting foreign firms greater rights when operating within the United States than U.S. firms or residents enjoy under constitutional property rights interpreted by the U.S. Supreme Court. CAFTA was signed in 2004 but has not yet been brought up for congressional consideration; support for the deal is limited, in part because of its investment provisions. The United States has not yet lost a case, thanks to an array of lucky technical breaks -- such as an investor relocating into the United States and thus losing foreign investor standing under NAFTA. However, with the overall win-loss ratio of NAFTA investor-state cases running around 50-50, it is just a matter of time before a NAFTA claimant is successful against the United States