Recent publications
Exchange-Traded Confusion: How Industry Practices Undermine Product Comparisons in Exchange Traded Funds, 15(2) Va. L. & Bus. Rev. 125 (2021)
Dr. Ryan Clements
Despite their incredible popularity and importance to modern capital markets, exchange traded funds (ETFs) are extremely difficult to compare side-by-side. Investors who successfully navigate the initial challenges of product choice overload, and opaque index construction methodology, soon encounter a wide array of discretionary operational, management, marketing, and financial practices of ETF sponsors that combine to undermine simple product and performance comparisons. This dilemma is compounded by disclosure effectiveness challenges given investor cognitive...
Misaligned Incentives in Markets: Envisioning Finance That Benefits All of Society, (forthcoming) DePaul Business & Commercial Law Journal (2021)
Dr. Ryan Clements
The modern financial system is plagued by misaligned incentives that allow some firms to extract distributive profits, and direct wealth transfers in their favor, without producing anything of value, or improving society with enhanced employment or socially useful innovation. Many modern financial products and activities serve no underlying economic or productive purpose. The system is creating market intermediaries of astounding size, power, profitability, and economic and regulatory policy influence. Some financial firms expressly profit from heightened interconnection...
Book Review, “The Code of Capital: How The Law Creates Wealth and Inequality” , 36 Banking & Finance Law Review 323 (2021)
Dr. Ryan Clements
Global financial inequality was increasing before COVID-19 unleashed market and economic chaos. The pandemic has widened the wealth gap, exposing financial disparity in even the world’s most prosperous countries. While the COVID-19 crisis has expanded the fortunes of some, millions around the world face the unrelenting reality of poverty. While it’s difficult to deny the influence of ideology on the growing wealth divide, in some countries (particularly the United States) there might be another critical factor to consider – the law. In The Code of Capital – How The Law...
Building Alberta's Financial Sector, 14:3 University of Calgary, School of Public Policy, SPP Research Papers (June 2021)
Jack Mintz, L. Daniel Wilson and Bryce Tingle, QC
A discussion of the policy initiatives that might be pursued by the Government of Alberta to facilitate the growth of Alberta's Financial Sector
Are ETFs Making Some Asset Managers Too Interconnected to Fail? 22(4) U. PA. J. BUS. LAW. 772 (2020)
Dr. Ryan Clements
Exchange Traded Funds (ETF) are likely the most successful financial products since the 2008 global financial crisis (GFC). Despite numerous benefits, ETF’s success could be making some asset managers “too interconnected to fail.” Interconnection is a core element of systemic risk, and it played a material role in the transmission of economic shocks in the GFC. This article is the first, in a growing body of literature on ETFs, to provide a comprehensive inquiry into their systemic importance through the lens of interconnectivity. The article provides three unique...
New Funds, Familiar Fears: Are Exchange Traded Funds Making Markets Less Stable? Part I Liquidity Illusions, 20 HOU. BUS. & TAX L. J. 15 (2020).
Dr. Ryan Clements
Since the 2008 global financial crisis, exchange traded funds (ETF) have exploded in popularity. An ETF is an investment product that tracks an underlying index or basket of assets, like securities, bonds or commodities, but unlike mutual funds it trades like a stock. Many view ETFs as superior to mutual funds since they give average investors low-cost instant diversification in a product that can be bought or sold throughout the trading day, with a single click of the mouse, on a national stock exchange like the NYSE. ETFs will likely house a sizeable share of American...
New Funds, Familiar Fears: Are Exchange Traded Funds Making Markets Less Stable? Part II Interaction Risks, 21(1) HOU. BUS. & TAX. L.J. 1 (2020).
Dr. Ryan Clements
Exchange Traded Funds (ETFs) – tradeable investments that provide a return linked to an underlying index or basket of assets – are likely the most successful financial product since the 2008 crisis. Over the last decade they’ve experienced remarkable growth. Yet these products may also be making the financial system less stable and, like Wall Street innovations of the past, connecting banks and main street with dangerous implications. This final article – of a two-part study on ETF risks – posits that these products may be introducing two “interaction risks” into financial...
Corporate Governance
"Two Stories About Shareholders" (2021) 58:1 Osgoode Hall Law Journal 57
Bryce Tingle, QC
Corporate law contains two contradictory stories about the role of shareholders. In one, the shareholders are a useful countervailing force against the self-interested behaviour of corporate agents. In the other, shareholders lack the motivation, information, and proper incentives to contribute to the good governance of business corporations. Both stories are true on occasion, but is one more true than the other? Currently, developments in corporate and securities law are predicated on the idea that shareholders are, generally, a positive force in corporate governance...
Reversing the Decline of Canadian Public Markets, 14:3 University of Calgary, School of Public Policy, SPP Research Papers (April 2021)
Bryce Tingle, QC and Dr. J. Ari Pandes
The public markets in Canada and the United States are booming right now, so why do so few companies want to join them? Public companies grow faster, innovate more, provide better jobs and access cheaper capital. If they don’t go public, companies must eventually sell themselves to larger competitors, resulting in economic concentration and, maybe, the loss of entire sectors to foreign buyers. Since the 1990s, fewer companies in Canada, the U.S. and U.K. have chosen to go public. This has occurred even as the economic rewards of going public have increased...
"Do Corporate Fiduciary Duties Matter?" (2019) 4:4 Annals of Corporate Governance 272
Bryce Tingle, QC and Dr. Eldon Spackman
The duty of corporate fiduciaries to act in the best interests of the firm lies at the heart of most stories about corporate law. It has occupied the center of what is probably the longest and most extensive debate in corporate law: whether the duties should be owed to shareholders alone or to other constituencies impacted by corporate decisions. Alterations to the character of fiduciary duties are regularly proposed by reformers as a way to reduce various harms, from plant closures to pollution. The character of the duty has been blamed for failures...
"What Is Corporate Governance? Can We Measure It? Can Investment Fiduciaries Rely on It?" (2018) 43:2 Queen's Law Journal
Bryce Tingle, QC
Ranking or evaluating corporate governance has become a big business. Trillions of dollars of investment capital is now allocated with reference to third-party commercial scoring of firms’ corporate governance arrangements. Media outlets rank companies with the best governance, and proxy advisors score governance arrangements and use them to make voting recommendations. But what, exactly, is being measured? And do the resulting measurements tell investors anything useful about what is going on inside the corporation? When the empirical research is examined, there appears to...
"What Do We Really Know About Corporate Governance? A Review of the Empirical Research Since 2000" (2017) 59 Canadian Bus. L. J. 292
Bryce Tingle, QC
Corporate governance is currently understood by most legal actors to lie at the heart of corporate law. In addition to the explosion in academic interest in governance over the past three decades, it has increasingly been seen as a way to address a wide array of economic and social problems. In order for corporate governance to do the work assigned it, however, it must take the form of “best practices” that are generalizable across a wide variety of firms and circumstances. These best practices have been subject to extensive empirical research since the 1990s. This article...
"Framed! The Failure of Traditional Agency Cost Explanations for Executive Pay Practices" (2017) 54:4 Alberta Law Review 899
Bryce Tingle, QC
This is the second paper in a series exploring the empirical evidence arising from the increasing use of certain executive compensation best practices. The first paper, “How Good are our “Best Practices” When it Comes to Executive Compensation?,” summarizes research finding that these best practices are responsible for most of the growth in executive compensation and lead to sub-optimal corporate performance. It also suggests that the best practices currently in wide-spread use contradict practices that are often very helpful to directors in setting appropriate incentives...
Bankruptcy and Insolvency
"A Generalized Duty of Good Faith in Insolvency Proceedings: Effective or Meaningless?" (2020) 64:1 Can. Bus. L.J. 98
Jassmine Girgis
On November 1, 2019, Section 152 of the Budget Implementation Act, 2019, No. 1 (Bill C-97), came into force, implementing a generalized duty of good faith in the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act. The amendments dictate that, “[a]ny interested person in any proceedings under [each] Act shall act in good faith with respect to [either] proceeding[…]”. The amendments also give courts the power, upon the application of any interested person, to make any order they consider appropriate in the circumstances if an interested person fails to...
“Corporate Restructuring, the Evolution of Corporate Assets and the Public Interest” (International Insolvency Review, January 2013).
Jassmine Girgis
In Canada, the public interest has always been a significant consideration in the restructuring of insolvent corporations. And with the introduction of new proceedings under Canada's restructuring statute, liquidating proceedings, an important consideration is whether these proceedings are in the public interest. Unfortunately, although the Supreme Court in Century Services traced the history of the CCAA and spoke of its remedial purpose, it did not discuss liquidating CCAAs or how they can be reconciled with the public interest purpose of the legislation, which leaves...
Tax
“Taxation and the Cross Border Trade in Services: Rethinking Non-Discrimination Obligations” (Spring 2018) 21 Florida Tax Review No. 2 at 605
Dr. Catherine Brown
This Article examines the conflict between tax and trade law principles in the tax treatment of a non-resident service provider. It explores that conflict through non-discrimination obligations found in the General Agreement on Trade in Services (GATS), regional trade agreements, bilateral trade agreements, and tax treaties. The interplay between these agreements has the potential to frustrate trade law objectives because States may impose discriminatory tax measures on non-resident service providers. Tax treaties can play an important role in providing a minimum...
Non-Discrimination and Trade in Services: The Role of Tax Treaties (Singapore: Springer, 2017).
Dr. Catherine Brown
This book argues that the proliferation of global trade and the increasing power of free trade arrangements leave income taxes as one of the few remaining measures that can potentially be used for protectionist purposes. It analyzes the interaction between the non-discrimination principles in tax treaties and trade-related agreements including multilateral (WTO), regional (NAFTA, AANZTA) and bilateral free trade agreements. The absence of a non-discrimination obligation with respect to tax measures that apply to non-resident service providers and to non-resident services...
Fintech
Regulating Fintech in Canada and the United States: Comparison, Challenges and Opportunities, in K. Thomas Liaw ed. THE ROUTLEDGE HANDBOOK OF FINTECH
(London: Routledge, 2021).
Dr. Ryan Clements
The rise of FinTech has attracted increased attention from investors, entrepreneurs, existing financial-sector participants, and regulators. FinTech has many potential benefits, and it could transform banking, lending, payments, investing and other financial services through the internet, smartphones, artificial intelligence, blockchain and cryptocurrencies, and many other current and future digital technologies. Such benefits include lower costs, an enhanced scope of products and services, and the...
Fintech Regulation in Canada, in Claudia Sandei, Marco Cian eds. RESEARCH HANDBOOK ON THE LAW OF FINTECH (2020, Wolters Kluwer Italia).
Dr. Ryan Clements
New technologies have now forcefully entered the financial dynamics, reshaping, and sometimes subverting, traditional relational schemes and proposing new forms of business, new strategies and new challenges: cryptocurrencies, robo-consulting, mobile-payments, crowdfunding and many others are already deeply widespread realities in the financial economy, based on the radical innovations offered by blockchain technologies, artificial intelligence and machine learning. The impact of these innovations is also extraordinary on the national and European regulatory system, which...
Financial Inclusion in British Columbia: Evaluating the Role of Fintech, Expert Panel on Basic Income Report, Government of British Columbia
(December 2020)
Dr. Ryan Clements
Financial technology (fintech) can help to mitigate the problem of financial exclusion in British Columbia. Individuals who participate in the traditional banking and financial system experience a variety of social and economic benefits. Yet several factors like personal hardship, financial illiteracy, high product costs, perceived eligibility, informational gaps, a lack of credit history and legal documents, bank resistance, and customer feelings of distrust and disrespect contribute to the exclusion of many from traditional financial products and...
Evaluating The Costs and Benefits Of A Smart Contract Blockchain Framework For Credit Default Swaps, 10 WM & MARY BUS. L. REV 369 (2019).
Dr. Ryan Clements
Despite wide speculation about its use-value, there are very few large-scale Blockchain implementations, particularly in sophisticated financial applications and mature markets. The extent of Blockchain’s disruptive potential in these domains is uncertain. This Article considers Blockchain’s use-value for credit default swap contract execution, fulfillment, and post-trade processing by using, as an assessment base, a series of derivative industry whitepapers, academic and technological evaluative studies, and commentary relating to current market undertakings. In summary...
Regulating Fintech in Canada and the United States: Comparison, Challenges and Opportunities, 12:23 University of Calgary School of Public Policy
SPP Research Papers (August 2019).
Dr. Ryan Clements
The rise of fintech has attracted increased attention from investors, entrepreneurs, existing financial-sector participants and regulators. Fintech has many potential benefits and it could transform banking, lending, payments, investing and other financial services through the internet, smartphones, artificial intelligence, blockchain and cryptocurrencies, and many other current and future digital technologies. Such benefits include lower costs, an enhanced scope of products and services, and the possibility of reaching and offering...
Assessing The Evolution of Cryptocurrency: Demand Factors, Latent Value and Regulatory Developments, 8 MICH. BUS. & ENTREPRENEURIAL L. REV. 73 (2018)
Dr. Ryan Clements
The purpose of this Comment is to analyze the roots of this fervor— including that which drove Bitcoin’s initial demand surge—and investigate whether cryptocurrency can survive a market bubble that experienced a significant correction in 2018.
Entrepreneurialism
"The Equity Incentive Canadian Startups Need (Hint: It Is Not Stock Options)" (2020) 71 UNB Law Journal 156
Bryce Tingle, QC
Growth companies contribute disproportionately to Canada’s job creation, economic development and innovation. Most growth companies can match neither the salaries nor the security of more established competitors for executive talent. This makes their only advantage — the growth prospects of their equity — a particularly important part of their compensation arrangements. Canadian growth companies (and Canadian businesses generally) make less use of equity incentives than their American peers and the kind of incentive they use almost exclusively, stock options, are strongly...
Start-Up and Growth Companies, A Guide to Legal and Business Practice (3rd edition LexisNexisCanada (2018))
Bryce Tingle, QC
This unique publication was written for legal, business and finance professionals who service clients in the start-up and growth company sector. More than just the relevant legal principles, the text positions the legal considerations within the business and social context of the start-up company, offering helpful advice that caters to the unique considerations of a young but fast growing enterprise. Author Bryce Tingle is singularly qualified to write this book, with his extensive experience in this area of the law as an academic and member of multiple founder teams...
Business Law
Annotated Alberta Business Corporations Act, 2021 Edition (LexisNexis Canada)
Bryce Tingle, QC and J. Paul D. Barbeau
The definitive annotated guide to Alberta’s Business Corporations Act, featuring expert commentary from recognized industry leaders, Bryce Tingle and Paul Barbeau. This guide is a valuable resource for anyone dealing with corporate and securities law in the Province of Alberta.
"The Contested Grounds of Economic Order" (2019) 45 Queen’s Law Journal 193 (Book Review)
Dr. Fenner Stewart
Regulation and Inequality at Work: Isolation and Inequality Beyond the Regulation of Labour is Vanisha Sukdeo's first book. It presents an unnerving account of workers' rights today. The suggested culprits for this are state retrenchment and the "virtual sweatshops' at the center of today's economic order...
"Dominium and The Empire of Laws" (2019) 36 Windsor Yearbook of Access to Justice 36
Dr. Fenner Stewart
Civic republicanism endorses a freedom ideology that can support the corporate social responsibility movement [CSR] in some of the challenges it faces. This article is a call for CSR to embrace this normative guidance as a superior alternative to mainstream liberalism. Part I is the introduction. Part II discusses the institutional changes that gave rise to CSR’s present incarnation. Part III builds upon this discussion, explaining how corporate risk management strategies pose a threat to CSR’s persuasive authority today. It then considers CSR’s options for enhancing...
“The Oppression Remedy: Clarifying Part II of the BCE Test” (2019) 96 Canadian Bar Review 484.
Jassmine Girgis
Claiming oppression is easy. Only the low bar of unfairness must be overcome. It seems to arise from any unwelcome conduct in a (usually) closely-held corporation. It can be appended to any corporate misconduct claim. Broad statutory language governs the remedy, making it facially applicable to a broad range of conduct. In addition, the remedy is fact-based, being granted when a party satisfies the court that the corporation or its directors acted in a way that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, any security holder...
Energy Markets
"Developing a Canadian Clean Hydrogen Economy: Maximising the Export Potential" (2021) 2 Oil, Gas and Energy Law Journal
Dr. Rudiger Tscherning
This article examines the feasibility of developing a Canadian "hydrogen economy", involving, in the first instance, the production of hydrogen for domestic application in key energy-intensive sectors. In developing the legal and policy framework for hydrogen, decision makers and industry must also recognise Canada's longer-term export potential to supply a growing global demand in "clean hydrogen". Emerging hydrogen markets in the USA, the European Union, as well as in Japan and South Korea are all strategically located within a competitive distance advantage from...
Mineral Mining in Africa: Legal and Fiscal Regimes (London, UK: Routledge, 2020)
Dr. Evaristus Oshionebo
Africa is endowed with commercially viable quantities of several minerals and metals, and, more than ever before, African countries wish to harness their mineral resources for their economic development. The African mining sector has witnessed a revolution in terms of new mining codes and amendments to extant mining codes, which are designed to achieve a multitude of objectives, including the assertion of greater control over exploitation of mineral resources; optimization of resource royalties and taxes; promotion of equity participation in mining projects...
“Regulation of Low Carbon Energy Sources in North America”, in World Handbook on Energy Law (Tina Hunter, ed., Routledge, 2020).
Kristen van de Biezenbos
The Routledge Handbook of Energy Law provides a definitive global survey of the discipline of Energy Law, capturing the essential and relevant issues in Energy today. Each chapter is written by a leading expert, and provides a contemporary overview of a significant area within the field.The book is divided into six geographical regions based on continents, with a separate section on Russia, an energy powerhouse that straddles both Europe and Asia. ach section contains highly topical chapters from authors who address a number of core themes in Energy Law and Regulation...
"The Rebirth of Social License" (2019) 14:2 McGill Journal of Sustainable Development Law 153
Kristen van de Biezenbos
Canada’s energy industry and the agencies that regulate it are suffering a crisis of legitimacy. Both are battered by shifting public opinion, opposition from powerful NGOs, a troubled history with many communities and Indigenous groups, and the actions of political parties that consider opposition to oil and gas projects to be central to their platforms. In such an environment, the concept of social licence to operate, or simply social licence, seems more important than ever to the energy industry. This Article argues, however, that it is not the ability or...
"Corporate Risk and Climate Impacts to Critical Energy Infrastructure in Canada" (2019) 42:2 Dalhousie Law Journal 427
Dr. Rudiger Tscherning
Recent climate events such as Hurrican Harvey in Texas foreshadow the dangers that could result from critical energy infrastructure failure in Canada due to physical impacts caused by climate change. This article examines the types of climate impacts that could affect critical energy infrastructure in Canada. The article argues that these impacts translate into three types of corporate risk to the owners and operators of the critical asset: economic risks to the infrastructure asset; management and operational risks to the corporation; and risks arising from corporate...
“Plugging the Holes – New Canadian and US Regulations to Reduce Upstream Methane Emissions" (2019) 11:4 J. World Energy Law Bus. 294
Allan Ingelson
In the USA and Canada where most of global shale oil and gas development has occurred, due to concerns about climate change the national governments have adopted new regulations to further significantly reduce national methane emissions from the upstream oil and gas industry. The 2016 US Environmental Protection Agency emissions standards and 2018 Canadian methane regulations build on decades old oil and gas conservation schemes to further reduce the volume of methane that is released from facility equipment leaks and venting. In Canada, venting methane at new oil and gas...
"Mismanagement of Nigeria's Oil Revenues: Is the Nigeria Sovereign Investment Authority the Panacea?" (2017) 10 J. World Energy Law Bus. 329-34
Dr. Evaristus Oshionebo
Although Nigeria is blessed with abundant reserves of oil and gas, Nigeria has persistently suffered economic hardship as a result of the gross mismanagement of her oil revenues. In an attempt to reverse this trend, the government of Nigeria established a Sovereign Wealth Fund, the Nigeria Sovereign Investment Authority (NSIA), in 2011. The NSIA has three objectives: saving of excess revenues accruing from oil exploitation, fiscal stabilization in times of economic stress and development of social infrastructure. This article assesses the NSIA on the basis of some of...
"Sovereign Wealth Funds in Developing Countries: A Case Study of the Ghana Petroleum Funds" (2017) 36(1) J. Energy Nat. Resour. Law 33-59
Dr. Evaristus Oshionebo
The Petroleum Revenue Management Act, 2011 established the Ghana Petroleum Funds (GPF) for the purposes of investing and saving petroleum revenues. This article argues that, while the Act provides clear legal and governance frameworks for the GPF, the effectiveness of the GPF could be hindered by certain flaws inherent in the Act. The Act does not sufficiently empower some of the oversight mechanisms that are vital for the efficient management of any sovereign wealth fund. Moreover, the Act appears to place needlessly broad discretionary powers on the Minister of...