Ideas of Fairness in Financial Services Dispute Resolution

In this chapter, I consider the various ways in which the idea of fairness is given content in this dispute resolution regime and try to understand how and why some of these ideas achieve legitimacy and some do not. A few framing comments should be made. First, the context for the analysis of fairness in this regime is that of two-party disputes, a context with which lawyers arc very familiar. On the other hand, the basic premise of the kinds of dispute resolution services discussed in this chapter is that they arc outside the formal legal system. For example, Gilad argues that the system of informal dispute resolution practiced by the Financial Ombudsman Service (FOS) in the United Kingdom is explicitly designed to offset some of the advantages enjoyed by RPs [repeat players] in court litigation . Nor are such processes intended to be directly regulatory , in the sense that they are not intended to usurp the role of regulators in establishing appropriate norms and standards for firm-client interaction or investigating breaches of regulatory or self-regulatory requirements. Instead, they are focused on redress for clients on a relatively informal, case-by-case basis

Commentary on Prosecutions, Politics and the Public Interest: Some Recent Developments in the United Kingdom, Canada and Elsewhere

Professor Stenning is to be congratulated for providing a fresh and timely perspective on some crucial dilemmas of prosecutorial decision-making, and for grounding his incisive analysis in a close discussion of a particularly provocative case emerging from the U.K. House of Lords in 2008. The core conundrum he addresses in his paper is the long-standing one of what should be the contours of the role played by a jurisdiction\u27s Attorney General in prosecutorial decision-making. The context here is one in which attorneys general have multiple and significant responsibilities in governmental arenas. Specifically, he poses two questions about the Attorney General\u27s role. The first is (i) are we close to achieving institutional arrangements and constitutional conventions and practices which will guarantee a satisfactory balance between political independence and political accountability of those with ultimate responsibility for prosecutorial decision-making? . The second question is (ii) \u27are we closer to achieving consensus about what such a \u27satisfactory balance\u27 might be? The article ultimately answers both of these questions in the negative

Following Up on Interests: The Private Agreement Exemption in Ontario Securities Law

This paper uses insights from cultural theories of regulation and critical legal studies to argue that regulatory outcomes are not adequately explained by the activities of dominant interest groups. A more dynamic conception of the relationship between interests and ideas, especially legal ones, is required. Discursive shifts among languages of entrepreneurship, ownership, fairness, and market credibility are shown to be consequential for the outcome of the reform debate examined, not least because of the importance of these ideas, variously interpreted, in shaping the positions of interest groups

Comment on S.M. Beck Gatekeepers and the Commission: The Role of Professionals in the Regulatory System

The theme of Beck\u27s paper is that there is a need to re-examine the issue of the accountability of professionals, particularly lawyers, who act for clients in securities-related transactions. The role of law and lawyers in securities regulation has in the past been considered from the standpoint of the influence of legal professionals and legal ideas (such as those of fairness and equity) on the content of regulation and the practices of regulators.1 Beck\u27s paper, however, considers the position of lawyers, not as the creators and shapers of regulation, but as objects of it. As I read the paper, it deals with at least three aspects of the issue of lawyers\u27 accountability: (1) the rationale for enhanced accountability of lawyers (the why question); (2) the appropriate parameters of such responsibility (the for what question); and (3) the mechanisms for accomplishing it (the how question). To a non-specialist in this field, the paper is a comprehensive and provocative presentation of the relevant issues. My own sense is that the most contentious aspect of it is likely to be the proposition itself, as opposed to its implementation, so it is in this area that I will concentrate my remarks

Commentary on Prosecutions, Politics and the Public Interest: Some Recent Developments in the United Kingdom, Canada and Elsewhere

Professor Stenning is to be congratulated for providing a fresh and timely perspective on some crucial dilemmas of prosecutorial decision-making, and for grounding his incisive analysis in a close discussion of a particularly provocative case emerging from the U.K. House of Lords in 2008. The core conundrum he addresses in his paper is the long-standing one of what should be the contours of the role played by a jurisdiction\u27s Attorney General in prosecutorial decision-making. The context here is one in which attorneys general have multiple and significant responsibilities in governmental arenas. Specifically, he poses two questions about the Attorney General\u27s role. The first is (i) are we close to achieving institutional arrangements and constitutional conventions and practices which will guarantee a satisfactory balance between political independence and political accountability of those with ultimate responsibility for prosecutorial decision-making? . The second question is (ii) \u27are we closer to achieving consensus about what such a \u27satisfactory balance\u27 might be? The article ultimately answers both of these questions in the negative

Book Review: Christopher Nicholls\u27 Corporate Law (EMP, 2006)

Professor Chris Nicholls is a distinctive voice in the Canadian corporate legal academy. A prolific scholar of corporate and securities law developments, he is one of a few Canadian corporate legal academics to have a wealth of legal practice experience to draw upon, and to understand from detailed first-hand experience of both realms how they differ in the questions that are asked and the way answers are formulated. These diverse experiences make him eminently qualified to prepare a text on Canadian corporate law for use not only by law students, but also legal practitioners wishing to understand the latest developments in doctrine and scholarly analysis. A further strength of this book is that the doctrinal analysis in it is deeply embedded in both legal and business history, making it of interest to well-established scholars in the field as well

Rethinking Enforcement and Litigation in Ontario Securities Regulation

The Ontario government has recently made changes to provincial securities law that are aimed at more effective enforcement. For example, statutory civil remedies are now available to investors in actions involving misrepresentation or inadequate disclosure in the secondary market. A broader range of sanctioning options has also been made available to the Ontario Securities Commission. The author explores the factors contributing to these developments, identifies recent controversies surrounding the Commission\u27s enforcement activities, and evaluates the effectiveness of different approaches to enforcement. The author reviews policy issues surrounding enforcement through public, criminal and quasi-criminal sanctions, as well as civil remedies, and places these issues in the context of academic legal debate. She considers administrative law principles in the context of issues in securities enforcement, such as apprehension of bias, judicialization of Commission hearings, and the diversity of enforcement efforts across Canada. She then considers whether regulations should be oriented to deterring violations or creating incentives for compliance. She notes that current incentives to comply with securities regulations may have little influence on employee and firm behaviour in a competitive business environment. Enforcement mechanisms aimed at deterrence may therefore be less effective than those seeking to encourage compliance with regulations. Since the provisions recently added to the Ontario Securities Act are aimed at deterrence rather than compensation, she then discusses whether private enforcement mechanisms, such as the statutory civil remedies available under that Act, are preferable to public enforcement mechanisms. The author concludes that public and private mechanisms may be interdependent and could together achieve effective securities regulation

Book Review: M.Gillen Securities Law in Canada (Carswell, 1992)

As a neophyte securities law teacher, I approached Professor Gillen\u27s book, Securities Law in Canada, in hopeful anticipation. Would it be the useful, up-to-date teaching tool, suitable for students with little or no background in the area, that is seriously lacking in the Canadian securities law bibliography? I was not disappointed. The book is a very readable, well-organized and comprehensive overview of a subject often considered overly technical and abstruse by students