Commentaries

Mark Warner was published his first bi-monthly “Meet the Competition” column in the Canadian Lawyer Magazine on “Fintech in Canada: Will the disruptors be disrupted?”. (February 27, 2017) The Canadian Competition Bureau launched a Fintech Market Study in May 2016 and held a Workshop on driving competition and innovation in the financial services sector in February 2017. Mark  chaired the first international Sharing Economy Symposium in Toronto in December 2015. He is a Canadian and U.S. trade and competition lawyer with experience working in financial services issues, including in the Economic Research and Securities Lending Departments of Wood Gundy, Inc. As a former Acting Legal Director for the Ontario Ministry of Consumer Services, Mark was responsible for prosecutions under the provincial consumer protection laws and regulations. Mark’s experience with online technologies and e-commerce includes: as counsel in the OECD participating in policy work on laws and regulations affecting e-commerce, acting as Chair, ICC Competition Commission Working Party on E-Commerce and Competition Policy, serving as an original ICANN domain name dispute resolution arbitrator for eResolution and WIPO and as Rapporteur of the Hague Conference on Private International Law Commission on Jurisdiction for Torts in Electronic Commerce.

I published this 2016 Year in Review – Personal Reflections on LinkedIn: As I reflected on the year just passed, I have been considering the media commentary that I gave on a range of trade, competition, investment, sanctions and innovation issues. I thought that the start of a new year would be a good opportunity to review and update a few areas that I expect to be thinking about and working on in 2017. At the close of 2015, I chaired a first of its kind Canadian Sharing Economy Symposium in Toronto and 2016 started off with my participating in an insightful Canadian Competition Bureau Workshop on Disruptive Competition. In 2017, one area where I expect these issues to come into sharper focus is the role of Fintech as a disruptor or enabler for Canada’s big banks. Trade law is another area where the theme of disruption seemed to dominate the landscape in 2016. This was exemplified by the stunning Brexit vote in the UK, the tumultuous conclusion of the CETA negotiations, the apparent stalling of the TPP and the threats from candidate, now President-Elect, Donald Trump to renegotiate or terminate NAFTA. 2017 will probably not offer much clarity on any of these fronts. The UK will likely trigger Article 50 to commence Brexit negotiations with the European Union, the final ratification and implementation on CETA will depend on the outcome of cases before the European Court of Justice, TPP may be frozen in suspended animation until a propitious time arrives for a rebranding if not a renegotiation, and Canada and Mexico wait to see what exactly President Trump wants to do with NAFTA. One likely target may be renewed “Buy American” programs in connection with his ambitious infrastructure spending proposals and another may involve addressing recurring U.S. concerns about competitive disadvantage from the Value Added Tax (VAT) in Mexico or the Goods and Services Tax (GST) in Canada. This trade negotiation uncertainty is set against the backdrop of renewed bilateral trade disputes relating to Softwood Lumber and potential WTO trade disputes involving Canadian government support to Bombardier’s civil aircraft production. However, despite the continuing debates around the merits of investor-state dispute settlement in trade agreements, one pending NAFTA Chapter 11 challenge by TransCanada relating to the approval of the Keystone XL pipeline project will likely be resolved with the election of President Trump and the near certain approval of the project. Just as infrastructure is emerging as a potential flash point in trade, it is also on the agenda of competition enforcement. More often than not, concerns arise around bid-rigging highlighting the need for pro-active compliance steps for government agencies and other organizations that source construction or other services through tender processes and trade and professional associations whose members provide procurement-related services. One area of enforcement activity for the Canadian Competition Bureau in 2016 was in the supply of condominium refurbishment services in the Greater Toronto Area and this can be expected to continue into 2017. In 2016, international issues also continued to be noteworthy in competition law and policy and in the cross-border merger context in particular. In 2017 these issues can be expected to be in the spotlight in connection with the proposed notification and approval of the potential merger between the two leading Canadian potash producers, Potash Corp. of Saskatchewan Inc. and Agrium Inc. This is of particular interest given the divergent views of the Canadian and U.S. antitrust agencies on the claimed efficiencies in connection with the proposed acquisition of chemical producer Canexus Corporation by Superior Plus Corporation. While the Canadian Competition Bureau cleared the merger, in the United States, the Federal Trade Commission (FTC) announced that it would challenging the transaction and in the end the transaction was abandoned. Economic sanctions were another area of great international enforcement cooperation and convergence in 2016 with the easing of U.S. and international sanctions on Iran and U.S. sanctions on Cuba. This policy disruption opened a world of trade and investment opportunities but 2017 is likely to give way to renewed uncertainty until President Trump clarifies his intentions. Another area of policy disruption where international legal issues and competition issues will continue to intersect is the efforts to legalize the sale and distribution of marijuana in Canada. In 2017, the contours of the regulatory landscape that will define the conditions of competition for producers and retailers should come into sharper focus. On a personal level, a high point of 2016 for me was being invited to serve as a panelist at the All-American Regional Round of the 14th annual European Law Students’ Association (ELSA) Moot Court Competition on WTO Law, participating in an International Trade Panel at the 2016 Asian Canadian Law Students Conference, and speaking on international sales agreements and business formation in a Kyiv Chamber of Commerce & Industry Workshop on Accessing the Canadian Market. 2016 was a fun and interesting year, and in 2017 I look forward continuing to work on cutting-edge issues of innovation, competition, investment and trade giving advice to businesses and trade associations on compliance, governance and transactions and to governments on legislative and regulatory design. And so let me take this opportunity to offer all of you, my very best wishes for a productive and a prosperous new year!

Competition Bureau Conducting Criminal Probe in Ontario Condo Renovation Market

Mark Warner and Steve Szentesi

(May 26, 2016) Earlier today, the Globe and Mail reported that the Canadian Competition Bureau (Bureau) has launched a widespread criminal investigation into the condominium renovation industry in Ontario. See: here. According to the Globe, the focus of the Bureau’s investigation appears to be potential criminal conspiracy and bid-rigging in the provision of renovation services to condominiums from 2006-2014 with more than 100 condominium boards being compelled to produce records (which appear to be by way of section 11 orders under the Competition Act). While the Competition Bureau conducts criminal investigations in private, theGlobe’s reporting indicates that this investigation follows earlier compulsory production orders served on renovation companies, that the focus of the probe is the renovation firms (and possibly condo management firms) and not condominium owners and is in relatively early stages. A Bureau spokesperson was interviewed in connection with the investigation. However, is not clear whether the Bureau may proceed or against whom – for example, whether the Bureau may seek prosecution against any of the renovation companies targeted in the investigation, condominium management firms or others, grant immunity or leniency to any of those involved or enter into settlements with targets.  No violations of theCompetition Act have yet been established. This case is, however, very interesting and raises a number of important issues for companies and individuals that may be involved in the Bureau’s investigation. These include whether they have violated the Competition Act, should seek immunity or leniency from the Bureau or obtain advice relating to potential criminal exposure related to the document production process (or more broadly). The case also shows the Bureau’s interest in pursuing competition in high-consumer-impact sectors, including real estate and construction. In the real estate sector, it follows the recent landmark TREB abuse of dominance case. See here. From a competition compliance and conspiracy/bid-rigging perspective, condominium corporations may also consider seeking advice related to potential criminal or civil exposure in relation to the Bureau’s production orders and enhancing or adopting guidelines and procedures to reduce the potential of collusion or bid-rigging among competing suppliers to their corporations. Condominium owners and boards who believe they may have suffered loss or damage as a result of any of the alleged anti-competitive conduct under investigation by the Bureau may wish to consider the scope for actions to recover those damages under the private remedy set out in section 36 of theCompetition Act. It is also worth noting that the Ontario Condominium Act was amended in December 2015 to forbid condominium corporations from entering into certain contracts or transactions unless the procurement process meet certain requirements to be prescribed in a regulation.  To date section 39.1 has not yet been proclaimed by the Lieutenant Governor and the associated regulations have yet to be published. The Ontario Ministry of Government and Consumer Services that is responsible for the Condominium Act has indicated that the regulations will likely require sealed bids for certain procurement transactions and set out the procedures that would need to be followed and under what circumstances (e.g., for contracts exceeding a certain value). In light of the Globe’s article, condominium boards may wish to consider making representations to the Ministry about the regulations that are in the process of being drafted if they have not already done so.

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Mark is a former Acting Legal Director of the Ontario Ministry of Consumer Services which administers the Condominium Act (Ontario) and in that role was responsible for prosecutions under the Consumer Protection Act (Ontario). The Ministry is also responsible for two administrative authorities that enforce certain real estate-related consumer protection laws – the Real Estate Council of Ontario and Tarion Warranty Corporation. Mark was also interviewed on Newstalk 1010 about the investigation.

Mark Warner published a Comment in the Globe and Mail Report on Business on recent WTO dispute settlement decisions relating to tax avoidance and money laundering. (April 16, 2016) The recent Panama Papers unauthorized release of confidential documents for many offshore entities has, like the 2014 LuxLeaks release, shone a spotlight on tax havens and enforcement co-operation among tax authorities. Two recent WTO dispute settlement panel decisions involving Panama are particularly important in light of the recent threats by the G20 and the European Union to sanction tax havens after the Panama Papers scandal. The first case involves a challenge by Panama to certain Argentinian “defensive” measures on financial services and service providers from certain jurisdictions that do not cooperate or agree to information sharing in tax  enforcement. The WTO Appellate Body circulated its decision on April 15th. The second cases involves a challenge by Panama to a compound tariff imposed on textile goods by Columbia to counter alleged money laundering. The WTO Appellate Body decision in this dispute is pending. As counsel at the OECD Trade Directorate, Mr. Warner advised on harmful tax competition issues and previously worked on other trade and competition issues. Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade participated in the Canada-European Union Trade Agreement (CETA) negotiations including the chapters on investment and trade in services. Mr. Warner advises governments and business clients on trade policy, trade disputes and trade negotiations.

Mark Warner published an IRPP Perspectives blog and Huffington Post Canada blog on the judicial contributions of late U.S. Justice Antonin Scalia’s to the recognition of international comity to address longstanding Canadian and other foreign concerns about the extraterritorial application of U.S. competition, tax, securities and banking laws. Mark Warner is an Ontario and New York attorney specializing in trade, competition and investment law. Mark is a former Legal Director of the Ontario Ministry of Economic Development & Trade, has practiced law in leading law firms in Toronto, Washington, New York and Brussels, and has served as counsel to the OECD Trade Directorate in Paris. His work experience has included university research and teaching, and acting as an independent consultant to various foreign governments and international organizations. In 2015, Mark was elected a Fellow of the American Bar Foundation.

Mark Warner authors a blog for Huffington Post Canada on innovation myths and trade realities in the ongoing Trans-Pacific Partnership Agreement (TPP) ratification debate in Canada. (February 2, 2016) Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and Ministry of Research & Innovation and participated in the Canada-European Union Trade Agreement (CETA) negotiations . Mr. Warner has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate.

I published this 2015 Year in Review – Personal Reflections on LinkedIn: As another year comes to a close, I thought I would reflect on some of the more interesting places that my practice took me to this year. The year began with an unexpected honour – being elected as a Fellow of the American Bar Foundation, and later in June I traveled to London to attend a Fellows celebration of Magna Carta, which remains such an important foundation stone for law and lawyers. Every once in a while a client file comes along that similarly sends me back to the first principles in the areas of law in which I practice. In 2015, for me one such moment came in advising a maverick polling firm. My client believed itself to be facing an existential challenge from a dominant firm competitor leading the charge to form a trade association to establish rules with the express aim of disciplining the polling methods of rivals against the backdrop of the most intense and hard fought Canadian election in a generation. It has become an axiom of antitrust / competition law that the goal is “to protect competitors, not competition” however in some fast-moving markets, it is clear that the failure to act  to preserve the “rules of the road” or a “level playing field” can yield unintended consequences. Innovation and change also figured prominently in two conferences that I participated in this year. In June, I attended a stimulating Federal Trade Commission Workshop on The “Sharing” Economy: Issues Facing Platforms, Participants, and Regulators. This gave me the idea to partner with Insight Information to hold a first of its kind Canadian Sharing Economy Symposium in Toronto that would peel back the onion to take a detailed look at competition, consumer protection, labour, taxation, insurance and municipal planning issues at the heart of understanding and resolving the tensions created by the new markets and modes of competition created by this new “gig” or technology-enabled “on demand” economy. Challenges to markets not only come from within, but also from outside. In 2015, I was called upon frequently to discuss trade and investment issues, most notably in relation to the negotiation and conclusion of the Trans-Pacific Partnership (“TPP”) Agreement. I was interviewed on television on BNN, CTV, CBC and CPAC, and on radio on AM980 CFPL,  quoted in articles in the Ottawa Citizen, the Toronto Sun (and Sputnik News) and published a much-read Huffington Post blog and two Op Eds in the Toronto Sun on the TPP. Just as businesses are beginning to evaluate the threats and opportunities posed by new technologies and new trading frameworks, they also need to be aware of emerging regulatory convergence and enforcement cooperation in areas such as antitrust / competition law but also other forms of so-called “white collar” crime such as money laundering, bribery and corruption. The importance of appropriate compliance programs was underscored by my invitation to give a speech in Sao Paulo, Brazil on competition, corruption and corporate governance in the midst of the Petrobras and Lavalin scandals engulfing Brazilian and Canadian “national champions”.  I also participated on a panel on educating business leaders for integrity at a conference at York University’s Schulich School of Business sponsored by the Canadian Business Ethnics Research Network. One industry with which I have long been affiliated that is at the forefront of all the issues of innovation, international convergence, compliance and governance is the pharmaceutical industry. So not surprisingly it came up often in my discussion and advice relating to the TPP. In April, I also traveled to Rutgers School of Law to give a talk on competition, trade & investment issues affecting the pharmaceutical industry. The theme of investment figured prominently in two other 2015 events that I participated in. In November I was invited to lecture at the Ivey Business School at Western University on business, government & globalization issues in investor-state dispute settlement, prosecution of foreign bribery & corruption and corporate social responsibility and foreign affiliate liability. I also returned to Panama to participate in a conference to address global tax initiatives affecting trade and investment in services in panama. My role was to try to make sense of the WTO panel decision on a case brought by Panama on countermeasures by Argentina on services and service suppliers from jurisdictions that do not exchange information for the purposes of fiscal transparency. 2015 was a fun and interesting year, and in 2016 I look forward continuing to work on cutting-edge issues of innovation, competition, investment and trade giving advice to businesses and trade associations on compliance, governance and transactions and to governments on legislative and regulatory design. And so let me take this opportunity to offer all of you, my best wishes for a safe Holiday Season and a prosperous new year!

Mark Warner published an Op Ed in the Sun Newspaper discussing the trade in Services and  the Temporary Entry of Business Persons provisions in the Trans Pacific Partnership (TPP) trade agreement. (October 19, 2015) Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade participated in the Canada-European Union Trade Agreement (CETA) negotiations, including on Cross-Border Trade in Services, Temporary Entry and Mutual Recognition of Professional Qualifications; and led the Province’s legal team for the insolvency / restructuring of GM and Chrysler. Mr. Warner has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate.

Mark Warner published an Op Ed in the Sun Newspaper on the conclusion of the Trans Pacific Partnership (TPP) trade agreement, discussing trade in dairy products, rules of origin for auto parts, investor-state dispute settlement and patent rules for “biologic” pharmaceutical products. (October 6, 2015) Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade participated in the Canada-European Union Trade Agreement (CETA) negotiations, including on intellectual property and pharmaceutical patent issues, advised on several NAFTA Chapter 11 Investor-State Arbitrations and led the Province’s legal team for the insolvency / restructuring of GM and Chrysler. Mr. Warner has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate.

Mark Warner authors a blog for Huffington Post Canada about the issues involved in Canada negotiating and signing on to the Trans-Pacific Partnership Agreement (TPP) during the Canadian election. (August 20, 2015)

Mark Warner authors an opinion piece for iPolitics about the issues involved in Canada negotiating and signing on to the Trans-Pacific Partnership Agreement (TPP) during the Canadian election. (August 16, 2015)

Mark Warner has been invited to become a Fellow of the American Bar Foundation. The Fellows is an honorary organization of attorneys, judges, law faculty, and legal scholars who have been elected by their peers to become members of The Fellows. Selection as a Fellow of the American Bar Foundation is recognition of a lawyer whose career has demonstrated extraordinary leadership in the profession, service to society, and commitment to the ideals and objectives of the American Bar Association. Membership in The Fellows is limited to less than one percent of lawyers licensed to practice in each jurisdiction of the United States and to a small percentage of international lawyers. Past Fellows include: Justice Ginsburg, Justice Breyer, Attorney General Eric Holder, Hillary Clinton, Kenneth Feinberg and Scott Turow.

Mark Warner will be participate in York University’s Osgoode Hall Law School Conference on November 6 and 7, 2014 that will look at corruption in business, finance, government and enforcement. “Understanding and Taming Public and Private Corruption in the 21st Century” will bring together top Canadian and international legal, political and media experts to explore what makes these sectors vulnerable to corruption, the systems that undermine anti-corruption intentions, and the failures of transparency and accountability efforts. Key themes that will be explored at the conference include: · Corruption in undermining international economic development; · Corruption as a facilitator of organized crime; · Corrupt interactions between business and government; · Corruption within government institutions; · The UN Convention against Corruption (UNCAC); · The Foreign Corrupt Practices Acts and their extra-terrestrial reach; · The adequacy of whistle-blowing legislation, policies and practices.

Mark Warner will be participating in the Canadian Competition Bureau Innovation And Antitrust Workshop in Ottawa on November 4th. The workshop will feature speakers from business, academia and government, both domestic and international, to discuss the role of innovation across various industries, explore the relationship between competition and innovation, and examine how innovation should best be assessed by competition agencies. Follow live tweets from @MAAWLAW on Twitter on #CBinnov8.