Queen’s Law faculty, alumni and doctoral students played key roles in exploring international business, trade and tax through the lens of “Law as an Engine for Development” at a recent Barbados conference. A trio of grads brought together academics, high-level jurists, international law specialists and foreign ministry legal advisers for the two-day event held on the University of the West Indies’ Cave Hill campus.
UWI Dean of Law David Berry, LLM’93, hosted the conference he co-organized with Professor Art Cockfield, Law’93, of Queen’s Law, and Jeannette Tramhel, Law’87, Senior Legal Officer with the Organization of American States (OAS) – Secretariat for Legal Affairs, Department of International Law.
“We had a wonderful time in terms of research collaboration and want to continue this exchange of knowledge between the two law schools, hopefully again with help from the OAS,” says Cockfield, an OAS Fellow. “This was the very first time that the OAS had run a workshop in the English-speaking part of the Caribbean, so that was a very important step for the OAS, which represents all the interests of the Americas.”
Conference papers will be published in a special issue of the Caribbean Law Journal that will be edited by UWI Lecturer Rashad Brathwaite.
On the first day of the event, keynote speaker Marie Legault, the High Commissioner of Canada in Barbados, presented “Canada’s Feminist International Assistance Policy for Building an Inclusive World.” The centrepiece of Canada’s foreign trade agenda since 2015, she said, is “progressive trade,” which means negotiating new and updated trade deals to include chapters on gender, economic participation by minority groups and small and medium-sized enterprises, and environmental protection guarantees. Increased participation by women and minority groups has a positive effect on social development and gross domestic product, she continued, emphasizing that what looks like good politics for a Canadian audience is also good for its economy and those of our trading partners.
“The High Commissioner also explained how Canada has gender-based budgeting as a way to promote gender quality and further economic growth,” says Cockfield, who reminded the audience that it was his Queen’s Law colleague, Professor Kathleen Lahey, who created that budgeting model.
Tramhel chaired a panel on “International Business Instruments for Inclusive Growth,” which focused on reforms to company law in Canada and in Caribbean countries.
As part of that discussion, Professor Robert Yalden of Queen’s Law spoke about the relative ease with which a person can incorporate a business – on the Internet using a smartphone – under the Canada Business Corporations Act and comply with annual reporting requirements. He remarked that when he showed his Business Associations class how this was done, his Queen’s students were decidedly underwhelmed. But during a conference break, Caribbean law students and lawyers were fascinated with the idea. One attendee was astonished when given an iPhone demonstration that opened the step-by-step incorporation website before his eyes. The Canadian government has historically been a leader in the provision of government services over the Internet, Yalden explained, and this has pushed Canada up in global rankings on ease of doing business.
Yalden also spoke about his research into social enterprise. Since 2004, British company law has permitted the incorporation of community interest companies, with some special features to ensure that at least some profits are used to benefit the community. Similar vehicles exist in British Columbia and Nova Scotia, but they are nowhere near as popular in Canada as they are in Britain, where over 10,000 exist.
Another panelist, Hogarth Clauzel, Law’93, a corporate lawyer now based in St. Kitts, discussed his recent work within the Caribbean Community (CARICOM) grouping of 20 countries.
Frank Walwyn, Law’93, a litigator of some of the most challenging business cases in Canada and the Caribbean as a partner with WeirFoulds LLP in Toronto, led a panel on bridging civil and common law traditions in teaching international law. He discussed the need for dispute resolution, which resonated with the Barbadian audience because they have been losing business resulting from some dysfunction in their court system.
Queen’s Law PhD student Patrick Wells talked about the need to protect the rights of LGBTQ2 community members in the Caribbean court system, which still considers certain homosexual acts to be criminal offenses.
Saro Persaud, another PhD in Law student from Queen’s on that panel, emphasized an equality theme with respect to female worker participation and also spoke on decolonization, the movement in South Africa and other parts of the world to critically look at laws and strip away the negative parts that have been imposed by the colonizing country.
In the Cockfield-chaired International Tax panel, experts explored how the international tax system, developed after WWI, is breaking down in the digital age. Since the network of bilateral tax treaties relies on the concept of a permanent establishment to establish residency and therefore the taxation of income from employment and business profits, the system is essentially a test of physical presence. What does this mean for the world’s dominant technology companies – Facebook, Amazon, Apple, Netflix and Google – which are everywhere and, at least for most tax authorities, not theirs to tax? How do Caribbean countries respond to measures by the United States and the European Union designed to clamp down on tax havens when, comparatively, the bigger problem are countries like Switzerland and Ireland? These are just two of the broader questions the panelists addressed.
“This discussion helped my own research in international tax law a great deal,” says Cockfield. “I got to see how Barbadians are dealing with the European Union’s clampdown on the offshore financial sector and how it may be disproportionately harming the interests of low- and middle-income countries.” One of the experts on the panel was Sir Trevor Carmichael, a Barbadian lawyer who helped open up the island country’s offshore sector in the 1970s.
On another panel chaired by Cockfield, international trade expert Nicole Foster of the UWI law faculty talked about how small countries can regulate public health – for example, by implementing plain packaging rules for tobacco – and still uphold their commitments under international trade law, so long as they do their research. She cited Uruguay’s success in an investor–state arbitration suit brought Philip Morris, a tobacco company. Chantal Ononaiwu, a trade policy and legal specialist with CARICOM, talked about the challenges small countries face in meeting their obligations under bilateral investment treaties, citing examples of awards bigger than some Caribbean countries’ annual gross domestic product.
A panel led by Berry, author of Caribbean Integration Law, focused on regional integration between Canada and the Caribbean. He and other key actors in the Caribbean regional integration arena helped inform some broader business and trade issues.
Might there be further collaboration between Queen’s Law and UWI? “We deepened our relationship with UWI and really got to know the professors better,” says Cockfield. “I absolutely want to continue this relationship and I’m hoping to co-organize another conference with them.”
By Alex McPherson and Lisa Graham