Some Recent Newspaper Quotes

By | April 3, 2015

I was quoted in a Globe and Mail article by Shawn McCarthy, 24 March 2015, reporting on Canada’s loss in a NAFTA arbitration over a quarry and marine terminal that the Province of Nova Scotia refused to approve:

 There is a growing concern in legal circles that the arbitration panels are expanding their mandate – including substituting their decision-making role for domestic courts – and that they cannot be appealed, Toronto trade lawyer Larry Herman said Tuesday. The Bilcon decision “will feed ammunition to those who oppose international arbitration as a form of dispute settlement,” he added.

It’s the second high-profile NAFTA loss for Canada. Last month, Ottawa was ordered to pay Exxon Mobil Corp. and Murphy Oil Ltd. $17.3-million after a NAFTA panel ruled that Newfoundland and Labrador had violated the trade agreement by imposing retroactive research-spending requirements on its offshore oil producers.

The ruling will also serve as a precedent should TransCanada Corp. decide to launch a NAFTA challenge against the Obama administration’s handling of the Keystone XL pipeline review.

“The fact that the Keystone XL project has been subject to purely political delays … in my view, gives TransCanada a good argument that the U.S. has breached the international standard of full protection and security,” Mr. Herman said.

To read the full article, click here.

I was also quoted a few days earlier in another article in the Globe, 23 March 2015, by Bertrand Marotte, about the NAFTA arbitration award in the Murphy Oil v. Canada case, referring to the need for some kind of internal agreement between the federal government and the provinces whereby awards involving provincial measures should be re-paid to Ottawa by the province concerned:

“Ottawa and the provinces need to get together to resolve this issue so that it doesn’t continue to be a problem in the future,” Toronto trade lawyer Lawrence Herman said.

“It’s a political issue rather than a legal one, it seems to me, and requires Ottawa and the provinces to settle it amongst themselves.”

To read this article, click here.

Campbell Clark quoted me in a story in the Globe, 18 March 2015, about the chill in Canada-US relations and the implications for Canada from the fact that the Congress has not yet given President Obama that required authority to negotiate trade deals. Here’s what I said, in part:

Mr. Herman said it looks as if Congress wants to impose conditions on what is to be negotiated before granting the authority – in other words, it might say going in that the deal must include concessions from certain countries, such as asking Canada to give on supply management.

Those things might just be bumps in the road, Mr. Herman said. “But in this case, we’ve got a kind of political overlay.” The chill makes it more likely irritants colour the government-to-government relationship anew, he said, and that in turn makes it harder to smooth away disputes that can hurt.

This article can be read in full by clicking here.