Simon Archer | Osgoode Hall Law School (original) (raw)
Papers by Simon Archer
A discussion of the events and factors behind the establishment of pre-funded health benefit plan... more A discussion of the events and factors behind the establishment of pre-funded health benefit plans in Canada with reference to the experience of voluntary employee benefit associations in the United States and the auto sector restructuring in North America during 2008-2009. It is argued that "employee life and health trusts" are used in effect to defease legacy cost liabilities of employers and only likely to be used in the context of restructuring of a workplace or industry. their structure is compared to other target benefit programs currently being proposed in Canada and elsewhere. The key issues in their negotiation and administration are summarized.
A review of certain themes in the literature discussing football (soccer) in contemporary law and... more A review of certain themes in the literature discussing football (soccer) in contemporary law and society, with emphasis on commodification and juridification and reference to the 2014 World Cup. Drawing on a variety of literatures it is proposed that to better understand legal dimensions of football, it is useful to review globalization theories rooted in social, economic, and cultural conditions, and contrasts the recent rapid development of literature on football in the social sciences with a narrower treatment in legal literatures. It is speculated that an anxiety informs the treatment of social performances like football as “merely games” in contrast to "more serious" problems in law, politics or economics, and some dimensions of this anxiety are explored.
SSRN Electronic Journal, 2008
The authors discuss the decision of the Supreme Court of Canada to approve a plan of arrangement ... more The authors discuss the decision of the Supreme Court of Canada to approve a plan of arrangement privatizing BCE Inc. over the objections of bondholders. Summarizing the arguments for "shareholder primacy" and debenture covenants delimiting contractual rights against boards and management, they argue that an expanded conception of relational contract theory is useful in analyzing the competing claims in the BCE deal and litigation. This approach requires that broader contextual factors are necessary to consider in the functioning of the corporation, especially by after-the-fact decision-makers.
We were last here at the University of São Paulo 12 years ago, just after Lula had come to power:... more We were last here at the University of São Paulo 12 years ago, just after Lula had come to power: today he is the world's most prominent political prisoner. That sentence alone sums up what we mean by labour law and illiberal democracy. On the eve of one of the most important elections in about 20 years, we are back and want to offer some comparisons and observations about the labour movement labour law and labour politics in Canada, and the Americas, south and north, more generally. Today in Canada, but also US, UK, France, Brazil and other advanced countries, the labour movement and progressive movement face the dilemma sometimes called " illiberal democracy ". What we mean by this term is a jurisdiction in which autocratic rulers get elected by the general population – including by the mass of workers. And we also mean those rulers who are really, in our view, proxies for the oligarchic wealth that often supports these elected rulers in coming to power, and who act against those workers interests. That, at least, is our perception of events. In Canada and the global north, two aspects of illiberal democracy are, we think, directly connected: the decline of worker power over their affairs, mainly through decline of union presence, and the rise of a workers politics of resentment exploited by far-right politics and parties. The famous Northern examples are of course Trump and Brexit and Le Pen, but there are many other examples: AfD in Germany, Five Star in Italy, governments in Hungary, Turkey and just this week, in my home Province, we have been working on fighting the new Premier (state governor) in Ontario, one who is a duplicate of Trump, and who many rank and file members voted for: one of his first acts was to legislate away worker right to strike for certain academic workers from my alma mater, and second act was to reduce the number of local election positions to reduce progressive candidates for elections in Toronto, Ontario's capital, which, as with many cities, is a locus of left-leaning political views. We are becoming familiar with what illiberal democracy looks like – something on the spectrum of a neoliberal democracy and autocracy. At the most recent meeting of the Law and Society association, one of the major topics was the nature of 21 st century autocratic governments: how they are formed, how they differ from 20 th century forms, and their " microphysics of power. " Sometimes the results of these inquiries are surprising. For example: modern autocratic governments are, largely, elected, and elected more than once. Illiberal democracy indeed.
Forthcoming Annual Review of Insolvency Law (2018). A discussion of the remedy of "deemed trusts"... more Forthcoming Annual Review of Insolvency Law (2018).
A discussion of the remedy of "deemed trusts" in Canadian pension statutes and jurisprudence, with particular consideration of insolvency proceedings. The argument is made that courts find ways to avoid applying trust law in insolvency proceedings particularly where it unsettles expectations of other creditors.
Capitalism without opposition is left to its own devices,which do not include self-restraint. 1
A review of Elizabeth Shilton's Empty Promises (2016).
A discussion of the events and factors behind the establishment of pre-funded health benefit plan... more A discussion of the events and factors behind the establishment of pre-funded health benefit plans in Canada with reference to the experience of voluntary employee benefit associations in the United States and the auto sector restructuring in North America during 2008-2009. It is argued that "employee life and health trusts" are used in effect to defease legacy cost liabilities of employers and only likely to be used in the context of restructuring of a workplace or industry. Their structure is compared to other target benefit programs currently being proposed in Canada and elsewhere. The key issues in their negotiation and administration are summarized.
The authors discuss the decision of the Supreme Court of Canada to approve a plan of arrangement ... more The authors discuss the decision of the Supreme Court of Canada to approve a plan of arrangement privatizing BCE Inc. over the objections of bondholders. Summarizing the arguments for "shareholder primacy" and debenture covenants delimiting contractual rights against boards and management, they argue that an expanded conception of relational contract theory is useful in analyzing the competing claims in the BCE deal and litigation. This approach requires that broader contextual factors are necessary to consider in the functioning of the corporation, especially by after-the-fact decision-makers.
A. DEVELOPMENT'S BAD MEDICINE I nternational financial institutions (IFIs), and their treatment a... more A. DEVELOPMENT'S BAD MEDICINE I nternational financial institutions (IFIs), and their treatment at law, epitomise current biases in the law-and-development paradigm. IFIs promote market based development by influencing macroeconomic policy, financial sector policy and privatisation. Lately, governance initiatives and the Rule of Law (ROL) have been promoted as key preconditions to attaining development goals. 1 This paper examines how IFIs themselves are not subject to the (broadly-conceived) ROL, and specifically, to liability vis-à-vis third party victims of IFI negligence. Activism, and occasionally litigation, attempting to make these institutions 'accountable' to the ROL are exposing basic problems and limitations of international law and IFI responsibility in an era of globalisation and the weak state. Our conclusions are that the lack of legal liability is an important aspect of the governance agenda and development policies of IFIs. This study arose out of work we completed for an international Non-Governmental Organisation (NGO) researching specific legal claims that could be incorporated as part of a larger reparations campaign. The NGO and members of the broader coalition were attempting to hold the World Bank (WB) accountable for alleged negligence during the construction of a hydroelectric dam project in Guatemala. We concluded that the technical legal innovations required to hold IFIs accountable for third party injuries and to subject IFIs to the ROL we expect from our institutions are easily conceived. However, in a depressingly familiar pattern, the political will
The Canadian Federal Government has proposed a new private-sector retirement savings scheme to ad... more The Canadian Federal Government has proposed a new private-sector retirement savings scheme to address the widely-recognized under-saving of Canadian employees for retirement. The proposed scheme emphasizes voluntariness in a choice architecture associated with the " nudge " approach to regulation often associated with Cass Sunstein and Richard Thaler. The scheme is critiqued from a public policy perspective and compared to an alternative policy option, expanding a publically-administered occupational retirement savings scheme, the Canada Pension Plan. The author argues that despite evidence that expanding the Canada Pension Plan would be more efficient at achieving policy objectives, the Federal Government has promoted the private-sector scheme instead. The author speculates that reasons for this decision are not strongly rooted in economic or legal arguments, but instead in a political anxiety over mandatory public programs. The author concludes that if experience in other jurisdictions is any indication, the proposed scheme will not meet the stated policy objectives.
A discussion of the events and factors behind the establishment of pre-funded health benefit plan... more A discussion of the events and factors behind the establishment of pre-funded health benefit plans in Canada with reference to the experience of voluntary employee benefit associations in the United States and the auto sector restructuring in North America during 2008-2009. It is argued that "employee life and health trusts" are used in effect to defease legacy cost liabilities of employers and only likely to be used in the context of restructuring of a workplace or industry. their structure is compared to other target benefit programs currently being proposed in Canada and elsewhere. The key issues in their negotiation and administration are summarized.
A review of certain themes in the literature discussing football (soccer) in contemporary law and... more A review of certain themes in the literature discussing football (soccer) in contemporary law and society, with emphasis on commodification and juridification and reference to the 2014 World Cup. Drawing on a variety of literatures it is proposed that to better understand legal dimensions of football, it is useful to review globalization theories rooted in social, economic, and cultural conditions, and contrasts the recent rapid development of literature on football in the social sciences with a narrower treatment in legal literatures. It is speculated that an anxiety informs the treatment of social performances like football as “merely games” in contrast to "more serious" problems in law, politics or economics, and some dimensions of this anxiety are explored.
SSRN Electronic Journal, 2008
The authors discuss the decision of the Supreme Court of Canada to approve a plan of arrangement ... more The authors discuss the decision of the Supreme Court of Canada to approve a plan of arrangement privatizing BCE Inc. over the objections of bondholders. Summarizing the arguments for "shareholder primacy" and debenture covenants delimiting contractual rights against boards and management, they argue that an expanded conception of relational contract theory is useful in analyzing the competing claims in the BCE deal and litigation. This approach requires that broader contextual factors are necessary to consider in the functioning of the corporation, especially by after-the-fact decision-makers.
We were last here at the University of São Paulo 12 years ago, just after Lula had come to power:... more We were last here at the University of São Paulo 12 years ago, just after Lula had come to power: today he is the world's most prominent political prisoner. That sentence alone sums up what we mean by labour law and illiberal democracy. On the eve of one of the most important elections in about 20 years, we are back and want to offer some comparisons and observations about the labour movement labour law and labour politics in Canada, and the Americas, south and north, more generally. Today in Canada, but also US, UK, France, Brazil and other advanced countries, the labour movement and progressive movement face the dilemma sometimes called " illiberal democracy ". What we mean by this term is a jurisdiction in which autocratic rulers get elected by the general population – including by the mass of workers. And we also mean those rulers who are really, in our view, proxies for the oligarchic wealth that often supports these elected rulers in coming to power, and who act against those workers interests. That, at least, is our perception of events. In Canada and the global north, two aspects of illiberal democracy are, we think, directly connected: the decline of worker power over their affairs, mainly through decline of union presence, and the rise of a workers politics of resentment exploited by far-right politics and parties. The famous Northern examples are of course Trump and Brexit and Le Pen, but there are many other examples: AfD in Germany, Five Star in Italy, governments in Hungary, Turkey and just this week, in my home Province, we have been working on fighting the new Premier (state governor) in Ontario, one who is a duplicate of Trump, and who many rank and file members voted for: one of his first acts was to legislate away worker right to strike for certain academic workers from my alma mater, and second act was to reduce the number of local election positions to reduce progressive candidates for elections in Toronto, Ontario's capital, which, as with many cities, is a locus of left-leaning political views. We are becoming familiar with what illiberal democracy looks like – something on the spectrum of a neoliberal democracy and autocracy. At the most recent meeting of the Law and Society association, one of the major topics was the nature of 21 st century autocratic governments: how they are formed, how they differ from 20 th century forms, and their " microphysics of power. " Sometimes the results of these inquiries are surprising. For example: modern autocratic governments are, largely, elected, and elected more than once. Illiberal democracy indeed.
Forthcoming Annual Review of Insolvency Law (2018). A discussion of the remedy of "deemed trusts"... more Forthcoming Annual Review of Insolvency Law (2018).
A discussion of the remedy of "deemed trusts" in Canadian pension statutes and jurisprudence, with particular consideration of insolvency proceedings. The argument is made that courts find ways to avoid applying trust law in insolvency proceedings particularly where it unsettles expectations of other creditors.
Capitalism without opposition is left to its own devices,which do not include self-restraint. 1
A review of Elizabeth Shilton's Empty Promises (2016).
A discussion of the events and factors behind the establishment of pre-funded health benefit plan... more A discussion of the events and factors behind the establishment of pre-funded health benefit plans in Canada with reference to the experience of voluntary employee benefit associations in the United States and the auto sector restructuring in North America during 2008-2009. It is argued that "employee life and health trusts" are used in effect to defease legacy cost liabilities of employers and only likely to be used in the context of restructuring of a workplace or industry. Their structure is compared to other target benefit programs currently being proposed in Canada and elsewhere. The key issues in their negotiation and administration are summarized.
The authors discuss the decision of the Supreme Court of Canada to approve a plan of arrangement ... more The authors discuss the decision of the Supreme Court of Canada to approve a plan of arrangement privatizing BCE Inc. over the objections of bondholders. Summarizing the arguments for "shareholder primacy" and debenture covenants delimiting contractual rights against boards and management, they argue that an expanded conception of relational contract theory is useful in analyzing the competing claims in the BCE deal and litigation. This approach requires that broader contextual factors are necessary to consider in the functioning of the corporation, especially by after-the-fact decision-makers.
A. DEVELOPMENT'S BAD MEDICINE I nternational financial institutions (IFIs), and their treatment a... more A. DEVELOPMENT'S BAD MEDICINE I nternational financial institutions (IFIs), and their treatment at law, epitomise current biases in the law-and-development paradigm. IFIs promote market based development by influencing macroeconomic policy, financial sector policy and privatisation. Lately, governance initiatives and the Rule of Law (ROL) have been promoted as key preconditions to attaining development goals. 1 This paper examines how IFIs themselves are not subject to the (broadly-conceived) ROL, and specifically, to liability vis-à-vis third party victims of IFI negligence. Activism, and occasionally litigation, attempting to make these institutions 'accountable' to the ROL are exposing basic problems and limitations of international law and IFI responsibility in an era of globalisation and the weak state. Our conclusions are that the lack of legal liability is an important aspect of the governance agenda and development policies of IFIs. This study arose out of work we completed for an international Non-Governmental Organisation (NGO) researching specific legal claims that could be incorporated as part of a larger reparations campaign. The NGO and members of the broader coalition were attempting to hold the World Bank (WB) accountable for alleged negligence during the construction of a hydroelectric dam project in Guatemala. We concluded that the technical legal innovations required to hold IFIs accountable for third party injuries and to subject IFIs to the ROL we expect from our institutions are easily conceived. However, in a depressingly familiar pattern, the political will
The Canadian Federal Government has proposed a new private-sector retirement savings scheme to ad... more The Canadian Federal Government has proposed a new private-sector retirement savings scheme to address the widely-recognized under-saving of Canadian employees for retirement. The proposed scheme emphasizes voluntariness in a choice architecture associated with the " nudge " approach to regulation often associated with Cass Sunstein and Richard Thaler. The scheme is critiqued from a public policy perspective and compared to an alternative policy option, expanding a publically-administered occupational retirement savings scheme, the Canada Pension Plan. The author argues that despite evidence that expanding the Canada Pension Plan would be more efficient at achieving policy objectives, the Federal Government has promoted the private-sector scheme instead. The author speculates that reasons for this decision are not strongly rooted in economic or legal arguments, but instead in a political anxiety over mandatory public programs. The author concludes that if experience in other jurisdictions is any indication, the proposed scheme will not meet the stated policy objectives.
Bringing claims against corporate actors domiciled or headquartered in one jurisdiction for alleg... more Bringing claims against corporate actors domiciled or headquartered in one jurisdiction for alleged wrongful conduct in another jurisdiction face well-recognized, long-standing barriers of access to justice. In this module, you will join a pop-up, plaintiff-side litigation boutique for one week and participate in a modified case development method, through which you will identify the primary legal and administrative barriers of access to justice in transnational litigation, and identify and critique the legal strategies or innovations of the past 25 years, with special attention paid to extraterritorial or universal jurisdiction, innovation in (primarily tort) law, and 'soft law' methods of seeking transnational corporate accountability for wrongful conduct. We will examine several aspects of five case studies in some detail, including environmental claims, extraction industry claims, and supply chain claims, as well as emerging areas, such as transnational insolvency and a transnational securities litigation class proceeding. We will discuss the importance of procedural frameworks, strategic questions in framing transnational litigation, including relationship to wider social and political movements and goals, and the corresponding critique of juridification of political conflict. We will identify relevant legal barriers and litigation strategies within wider context and the key actors and resources used in different forms of transnational litigation, including the emergency of litigation financing and insurance and plaintiff-side litigation brokers.
It is often hoped and assumed that union stewardship of pension investments will produce tangible... more It is often hoped and assumed that union stewardship of pension investments will produce tangible and enduring benefits for workers and their communities while minimizing the negative effects of what are now global and intensely competitive capital markets. At the core of this book is a desire to question the proposition that workers and their organizations can exert meaningful control over pension funds in the context of current financial markets.
The Contradictions of Pension Fund Capitalism is an engaging and readable text that will be of specific interest to members of the labor movement, pension activists, pension trustees, fund administrators, environmental activists, and employers/managers, as well as academics involved in pension or labor research. The contents and arguments of the book are applicable across the United States, Canada, the United Kingdom, Australia, New Zealand, and Ireland, because these countries experience a similar macroeconomic context and face a similar pension landscape.
This extended introductory essay examines the work of Harry Arthurs in historical and comparative... more This extended introductory essay examines the work of Harry Arthurs in historical and comparative context, ranging from early and lasting engagement with labour relations and industrial citizenship through the tension between administrative and court adjudication, the development of legal pluralist approaches to labour law, the emergence of globalization and its discourses, the long-term decline in labour's power and presence in labour markets, and the re-conceptualization of labour law as law of economic subordination and resistance. The essay places Arthurs work in the context of Canadian and international developments in law and political economy, as well as intellectual traditions of which Arthurs was a significant contributor.
Application of economic sociology of law to visual representations and legal tests
A presentation on the evolving role of fiduciary duty