Academics studying effects of Covid-19 pandemic on law

Quebec law faculties, having decided to offer courses remotely next fall in light of health and safety concerns stemming from Covid-19, are now also ramping up research efforts to assess the impact pandemics may have on law and the practice of law.

Public safety measures that have been introduced following the onset of pandemics such as Covid-19, SARS, and H1N1 have shaken up several areas of established domestic and international legal order, pointed out law professor Louise Langevin who is leading a team of 15 law professors at the Université Laval that will examine a wide gamut of legal issues that affect public and private spheres in the wake of  pandemics.

“The pandemic and social confinement is affecting all areas of law,” remarked Langevin, an expert in women’s rights. “The relationship that citizens have with law is changing. Think of remote justice. The courts, courthouses and judges lagged in terms of modernization, and in the space of less than four weeks we now have remote hearings, something that was unthinkable and impossible just a short while ago.”

The think tank will examine how the justice system has integrated and “accommodated” the use of technology, conduct research on how lawyers, judges and citizens dealt with remote justice and modernization of the justice system, and assess how remote notarial deeds and technology is changing how notaries work. The observatory also intends to analyze the legal protection of vulnerable persons under the pandemic, and whether scientific know-how should inform regulatory government decisions trying to cope with such health crisis. Public and private notions of responsibility will also be under the microscope as well as whether executive power has changed the notion of democracy and redefined federal-provincial jurisdiction and competences.

“The Quebec government adopted many decrees to limit non-essential travel during the Covid-19 pandemic and determine what stores could be open but it also appears that many restrictions were imposed without decrees, which begs questions about the rule of law,” noted Langevin. “Why did the government decide that hair salons should be closed while Quebec’s cannabis stores were deemed to be essential? What is an essential service? Who decided, on what basis? We are in a democracy and so all of these questions about the rule of law must be examined.”

The think tank wants its work to be as “accessible as possible,” added Langevin. In that vein, it is creating a web page and will eventually publish blogs, videos and research conducted by professors and students alike. It also intends to use videoconferencing applications to host conferences

The Université de Montréal’s faculty of law, besides having several professors conducting research on the legal implications posed by the pandemic, has as of May 19th offered an online course examining the rule of law during the pandemic. Offered by ten law professors, the remote course is tackling issues such as the partial suspension of the courts, the uneven application of health rules during the pandemic, and the accelerated transfer of powers of the State to technological firms such as Zoom who have literally become an essential service overnight.

“It is the role of professors to better understand what is happening in a situation like this,” said Pierre Trudel, a law professor specializing in public law. “There is less time to be retrospective but on the other hand it allows us to see in real time the issues at play and how we should be dealing with it. It is as if it is we’re in a living laboratory.”

Trudel is one of the law professors taking part in the online course and is looking at the implications behind digital contact tracing applications to prevent the spread of coronavirus, a strategy Trudel warns come with a host of significant privacy concerns. Apple and Google recently released a smartphone app to notify people automatically if they might have been exposed to the coronavirus. So too has Montreal-based Mila, the Quebec Artificial Intelligence Institute formed as part of the Pan-Canadian AI Strategy. But these apps, said Trudel, have implications for fundamental rights and freedoms and risk being used for purposes other than originally designed. “Very often this kind of technology stems from a very good idea but is then used for means that can be harmful,” said Trudel.

At McGill University Faculty of Law, four law professors received Covid-9 research grants. A cohort of three law professors, including Lara Khoury and Alana Klein, will analyze the discretionary powers of Canadian federal, provincial, and municipal governments during the COVID-19 pandemic, and assess the available accountability mechanisms in relation to emergency public health decision-making. Another will assess workers’ social protections while Fabien Gélinas will examine the likely effects of the COVID-19 pandemic on the field of investment law.

In fact, Lucas Clover Alcolea, a doctoral candidate at McGill University under Gélinas’ supervision, has already published an academic article outlining the “serious” challenges spurred by the Covid-19 pandemic on the “esoteric world” of international investment law. Alcolea believes it will be inevitable that the pandemic will lead to litigation, even though disputes related to health emergencies are far less frequent than disputes related to civil or financial emergencies.

There are several possible claims which could be brought by investors against states due to measures they took to impede the progress of Covid-19 which could amount to wrongful acts under international investment agreements. Expropriation claims, which is defined as “the act of taking away money or property, especially for public use without payment to the owner, or for personal use illegally,”  are likely to be the most difficult claims to establish, given the temporary nature of the measures taken by the government, asserts Alcolea.

Claims dealing with “fair and equitable treatment,” the most frequently invoked standard in investment disputes, and the standard of “full protection and security,” which is any act or measure which deprives an investor’s investment of protection and full security that constitutes unfair and inequitable treatment, will  likely to be easier to prove, according to Alcolea.

The likelihood of establishing such claims however depends on the nature of the government response to the Covid19 crisis not just in the form of imposing restrictions on businesses, but also the nature and extent of support provided to businesses and citizens, concluded Alcolea.

“One of the problems with investments is that there are a lot of different opinions on virtually any issue,” said Alcolea. “So much depends on who is actually going to be in a particular panel. And it just isn’t possible to say in advance how the issues will be decided because there’s so much that depends on individual points of view.”

This story was originally published in The Lawyer’s Daily.

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