Mark Warner: 2015 Year in Review – Personal Reflections on a Year of Innovation, Competition, Trade and Compliance
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!
