Les sanctions d'une règle de droit législative incompatible avec la Charte canadienne des droits et libertés: le reading in, le reading down, l'interprétation large, l'interprétation atténuée, etc.!

Cet article a précédemment été publié par la Revue du Barreau.

The effects of custodial vs non-custodial sanctions on reoffending : Lessons from a systematic review. 'Los efectos de las penas privativas vs no privativas de libertad en la reincidencia : lecciones de una revisi??n sistem??tica'

Resumen tomado de la publicaci??n

A 'Kimberley protest': diamond mining, export sanctions, and poverty in Awatia, Ghana

The temporary suspension of diamond exports in Ghana in 2006 and 2007 is arguably the most significant move to address mounting criticisms of the Kimberley Process Certification Scheme (KPCS), an international initiative aimed at stemming the flow of rough diamonds used to finance wars. The ban, which took effect in November 2006, was much praised, particularly in civil society circles, where it continues to be seen as a genuine effort to prevent the smuggling of ‘conflict diamonds’. At the time, Ghana was accused of harbouring stones originating from rebel-held territories in neighbouring Côte d’Ivoire. No evidence was found in support of the case that it was a repository for ‘conflict diamonds’, however, and exports resumed early in March 2007. This article examines the context for the accusations of Ghana’s implication in the smuggling of illicit diamonds, and draws on recent fieldwork to explain how the suspension has affected Akwatia, the country’s main diamondiferous area. The actions taken raise important questions about how suspected violators – particularly smaller diamond-producing nations – of the KPCS should be handled, and underscore how global compacts can have a host of negative repercussions at the village level.

Wickedness, Governance and Collective Sanctions: : Can Corruption be Tamed?

Tackling a problem requires mostly, an ability to read it, conceptualize it, represent it, define it, and then applying the necessary mechanisms to solve it. This may sound self-evident except when the problem to be tackled happens to be “complex, “ “ill-structured,” and/or “wicked.” Corruption is one of those kinds of problems. Both in its global and national manifestations it is ill-structured. Where it is structural in nature, endemic and pervasive, it is perhaps even wicked. Qualities of the kind impose modest expectations regarding possibilities of any definitive solution to this insidious phenomenon. If so, it may not suffice to address the problem of corruption using existing categories of law and/or good governance, which overlook the “long-term memory” of the collective and cultural specific dimensions of the subject. Such socio-historical conditions require focusing on the interactive and self-reproducing networks of corruption and attempting to ‘subvert’ that phenomenon’s entire matrix. Concepts such as collective responsibility, collective punishment and sanctions are introduced as relevant categories in the structural, as well as behavioral, subversion of some of the most prevalent aspects of corruption. These concepts may help in the evolving of a new perspective on corruption fighting strategies.

Informal sanctions and conditional cooperation: : A natural experiment on voluntary contributions to a public good.

In a natural experiment, this paper studies the impact of an informal sanctioning mechanism on individuals’ voluntary contribution to a public good. Cross-country skiers’ actual cash contributions in two ski resorts, one with and one without an informal sanctioning system, are used. I find the contributing share to be higher in the informal sanctioning system (79 percent) than in the non-sanctioning system (36 percent). Previous studies in one-shot public good situations have found an increasing conditional contribution (CC) function, i.e. the relationship between expected average contributions of other group members and the individual’s own contribution. In contrast, the present results suggest that the CC-function in the non-sanctioning system is non-increasing at high perceived levels of others’ contribution. This relationship deserves further testing in lab.

Corruption, governance and collective sanctions: : can a wicked problem be tamed?

Tackling a problem requires mostly, an ability to read it, conceptualize it, represent it, define it, and then applying the necessary mechanisms to solve it. This may sound self-evident except when the problem to be tackled happens to be “complex, “ “ill-structured,” and/or “wicked.” Corruption is one of those kinds of problems. Both in its global and national manifestations it is ill-structured. Where it is structural in nature, endemic and pervasive, it is perhaps even wicked. Qualities of the kind impose modest expectations regarding possibilities of any definitive solution to this insidious phenomenon. If so, it may not suffice to address the problem of corruption using existing categories of law and/or good governance, which overlook the “long-term memory” of the collective and cultural specific dimensions of the subject. Such socio-historical conditions require focusing on the interactive and self-reproducing networks of corruption and attempting to ‘subvert’ that phenomenon’s entire matrix. Concepts such as collective responsibility, collective punishment and sanctions are introduced as relevant categories in the structural, as well as behavioral, subversion of some of the most prevalent aspects of corruption. These concepts may help in the evolving of a new perspective on corruption fighting strategies.

Sanctions and public enforcement of insider trading laws in Europe

The recent financial crisis triggered an increasing demand for financial regulation to counteract the potential negative economic effects of the evermore complex operations and instruments available on financial markets. As a result, insider trading regulation counts amongst the relatively recent but particularly active regulation battles in Europe and overseas. Claims for more transparency and equitable securities markets proliferate, ranging from concerns about investor protection to global market stability. The internationalization of the world’s securities market has challenged traditional notions of regulation and enforcement. Considering that insider trading is currently forbidden all over Europe, this study follows a law and economics approach in identifying how this prohibition should be enforced. More precisely, the study investigates first whether criminal law is necessary under all circumstances to enforce insider trading; second, if it should be introduced at EU level. This study provides evidence of law and economics theoretical logic underlying the legal mechanisms that guide sanctioning and public enforcement of the insider trading prohibition by identifying optimal forms, natures and types of sanctions that effectively induce insider trading deterrence. The analysis further aims to reveal the economic rationality that drives the potential need for harmonization of criminal enforcement of insider trading laws within the European environment by proceeding to a comparative analysis of the current legislations of height selected Member States. This work also assesses the European Union’s most recent initiative through a critical analysis of the proposal for a Directive on criminal sanctions for Market Abuse. Based on the conclusions drawn from its close analysis, the study takes on the challenge of analyzing whether or not the actual European public enforcement of the laws prohibiting insider trading is coherent with the theoretical law and economics recommendations, and how these enforcement practices could be improved.

The Impact of United States Sanctions on the Myanmar Garment Industry

The United States imposed trade sanctions against the military regime in Myanmar in July 2003. The import ban damaged the garment industry in particular. This industry exported nearly half of its products to the United States, and more than eighty percent of United States imports from Myanmar had been clothes. The garment industry was probably the main target of the sanctions. Nevertheless, the impact on the garment industry and its workers has not been accurately evaluated or closely examined. The purpose of this paper is to evaluate the impact of the sanctions and to further understand the present situation. This is done using several sources of information, including the author's field and questionnaire surveys. This paper also describes the process of selection and polarization underway in the garment industry, an industry that now has more severe competition fueled by the sanctions. Through such a process, the impact was inflicted disproportionately on small and medium-sized domestic firms and their workers.