DAVE’S TECH TIPS

With worldwide spending on the blockchain totalling $2.7 billion USD in 2019 and expected to be $14.4 billion by 2023, it is inevitable that this level of commercial activity will give rise to disputes. The structure and nature of the blockchain is such that developers and others are seeking dispute resolution methods that are both built into and on the blockchain as well as more traditional dispute resolution methods. Who is building dispute resolution systems for the blockchain in addition to Kleros? Here is a sampling:

uuu ARAGON COURT (aragon.org/court)

Existing within the Aragon Network, this dispute resolution method has been created to settle disputes that arise from Aragon Smart Contracts. Potential jurors must deposit cryptocurrency tokens to be placed in the juror pool. Jurors must agree to abide by a Code of Conduct. Once chosen, a certain amount of tokens of the juror are locked until the dispute is settled. If the juror decides with the majority, they then earn further tokens for deciding in accordance with the “subjective truth.” Jurors who did not decide with the majority have their locked tokens slashed. On March 26, Aragon Court moved into a Precedence Campaign to test out the system. Once the precedence campaign is completed, it is expected that the Aragon Court will move into general public usage.

uuu RHUBARB (rhucoin.com/home.aspx)

Rhubarb has grown out of the operation of PeopleClaim, a large online dispute resolution provider that states they have resolved more than 60,000 claims. Per BusinessWire: “PeopleClaim allows anyone with a complaint or grievance — consumers, businesses, patients, employees — to file an online complaint about any kind of product or service issue or dispute, and then engage with the offender constructively in order to resolve the problem.” From this start in 2010, PeopleClaim now has a large following and has extended its knowledge in resolving disputes online to the blockchain. Because of this background, Rhubarb’s blockchain dispute resolution system reaches out to online dispute resolution processes outside of the blockchain. Similar to other systems, Rhubarb crowdsources jurors and provides incentives for jurors to vote “fairly.” uuu JURIS (medium.com/jurisproject)

Juris’ dispute resolution system can be incorporated into an agreement by adding Juris code to a smart contract. The contract can be frozen if a dispute arises. The parties are encouraged through a range of tools to settle their dispute; if not, the matter is submitted to a SNAP online jury for a quick but non-binding opinion on the case. The parties can resolve the case at this time or submit it for a ruling by a PANEL who can make a binding and worldwide enforceable decision under The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention.

uuu MATTERNUM (mattereum.com)

Matternum seeks to weave together the blockchain with real world assets. By registering assets on the blockchain, art and collectables (among other assets) can be traded, transferred, tracked, traced, and thereby authenticated, potentially reducing fraud. Matternum uses an off-chain method of arbitration rather than crowdsourced juries to resolve disputes.

uuu JAMS (jamsadr.com/smartcontracts) JUR (jur.io)

(eosalliance.io/dispute-resolutionarbitration)

(accordproject.org)

These are other organizations working on the issues involved in bringing dispute resolution to the blockchain.

ANDREW HINDI

In October of last year, the Minister of Indigenous Relations and Reconciliation, Scott Fraser, introduced the Declaration on the Rights of Indigenous Peoples Act (the “Act”) to the BC legislature as Bill 41. In the Minister’s stated view, the chief purpose of the legislation is to harmonize BC laws with the principles enunciated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which serve “as the framework for reconciliation.” Although receiving royal assent in November, the Act can hardly be considered a movement toward a true reconciliation.

A close and careful reading of the legislation clearly demonstrates its inadequacies as an instrument of change. Most glaringly, section 8 of the Act precludes the application of the BC Offence Act, such that a failure to comply with government obligations does not trigger penalty provisions as a provincial offence. Furthermore, section 4 of the Act contemplates the creation of an “action plan” to facilitate a transition to and recognition of its legislative objectives. Notwithstanding that the creation of an action plan is likely to require a significant amount of time (incurred in the consultation process with interested Indigenous groups), the Act provides little guidance on the implementation of Indigenous rights. More likely than not, the action plan will not be focussed on a timely recognition of these rights. Under section 1(4), the Act also preserves the “rights recognized and affirmed by section 35 of the Constitution Act, 1982.” This may serve somewhat problematic as a measure for Indigenous rights, as unlike the Act’s predecessor, federal Bill C-262, which had preserved only “existing Aboriginal or treaty rights of the Aboriginal peoples of Canada that are recognized and affirmed in section 35,” the more general language within the provincial legislation may be construed as importing certain Crown rights, such as the right to infringe Aboriginal rights.

Lastly, it should be noted that many of the provisions of the Act contain general and ambiguous language, as is usual for declarations in international law. The direct adoption of this language by a Canadian jurisdiction is unlikely to cause effective change in the existing scheme of Aboriginal rights under section 35. Section 35 has been phrased as broadly as possible, providing no restrictions as to the content of Aboriginal rights, yet has been severely restricted in scope within the Canadian jurisprudence. Indeed, Canadian courts are unlikely to apply a much broader interpretive approach to the general language under the Act. It is only a matter of time before courts correspond many of the existing internal limitations on section 35 rights to the rights under the Act (in addition to the seemingly existing limitation provision within Article 46(1)).

Earlier this year, there was a debate at the Peter A. Allard School of Law featuring notable speakers Dr. Gordon Christie, an Indigenous proponent and law professor at UBC and Thomas Isaac, Chair of the Aboriginal Law Group at Cassels Brock & Blackwell. Although the need for a renewed perspective on reconciliation was largely a point of contention among the speakers, they agreed that the Act is largely insufficient as an instrument of change. In Isaac’s view, nearly all issues respecting Indigenous rights are a product of the fact that industries contemplate their objectives over decades, Indigenous peoples contemplate their objectives over generations, while governments merely think over 4-year cycles.

It remains to be seen in what respect the government will develop an action plan to implement Indigenous rights and the manner in which courts will engage with the rights under the Act. Nevertheless, in consideration of the long-standing legacy between BC, Canada and their Indigenous peoples, one must be careful to expect significant change brought upon as quickly and swiftly as the passing of a single piece of legislation.

Andrew is a third-year student at the Peter A. Allard School of Law with interests in Aboriginal and commercial litigation. LinkedIn

A basic tenet of the adversary system, and therefore Trial Practice 101, is that true justice requires ardently protected positions, the clash of proofs, and a passive, neutral jurist who presides over it all as the parties (or their champions) exert themselves in all-but-bloodless combat. Coming from this school of thought, many lawyers encounter Alternative Dispute Resolution (“ADR”) only after they come to question the wisdom of the adversary system... then seek to learn the softer arts of negotiation and compromise. Courthouse Libraries BC (“CLBC”) has many primers (plus more advanced teachings) to guide this growth. Starting with books you can access online anywhere through CLBC’s Remote Access Subscriptions Database, consider Mediation for Civil Litigators, from Irwin and available through the deLibris platform link once you’ve logged in to the CLBC website. The handbook provides grounding and practical tips for successful negotiation and the mediation process — and it’s written with reformed trial warriors in mind.

From the CLBC’s print collection, consider checking out the 2020 edition of the British book Foskett on Compromise for some high grid analysis. The treatise includes content on the compromise of arbitrations, appeals, and compromises achieved through all forms of ADR. Foskett discusses the proper role of legal advisers (whether barrister, solicitor or other appropriate representative) in the process of compromise, including consideration of skills, responsibilities, obligations, and liabilities. For BC family practitioners and civil litigators alike, there’s a great chapter on interest-based negotiation (as opposed to position-based advocacy) in The Family Dispute Resolution Handbook, 6th Ed., which is available digitally in all of CLBC’s branches through Lexis Advance.

At the onset of the COVID-19 pandemic, we made the difficult decision to stop shipping our print updates while continuing to publish online copies of our scheduled books. We are happy to report that we will now return to printing updates starting on July 1, 2020 and continue to ship new orders. If you are a current subscriber to any of our upcoming releases, we will notify you via email with further information. We appreciate your patience during these challenging times and look forward to getting your updates shipped out as soon as possible.

In other publications news, we are excited to announce the third edition of Injunctions: BC Law and Practice — currently available in online format and scheduled for print release on August 24, 2020. This edition is essential for every lawyer presenting or defending an application for injunction in the BC Superior Courts or the Federal Court. Also upcoming is the update to William Buholzer’s classic guide to BC local government laws, Local Government: A British Columbia Legal Handbook, available in online-format July 17, 2020 and in print on August 12, 2020.

To see all our publications, please visit: cle.bc.ca/publications.