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News and discussion on implementing risk management

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Competition

New guidance for risk committees

A new publication by the Risk Coalition (a group of organizations in the UK that includes their Institute of Directors, a couple of risk management associations, and the organizations for internal and external auditors) merits our attention. Raising the Bar: Principles-based guidance for board risk committees and risk functions in the UK Financial Services Sector has some interesting content. For example, it says:

 

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Provincial payer quashes attempted drug evergreening strategy

When patents expire on a patented drug product, paving the way for generic competition, the patentee is faced with the challenge of how to replace the revenues that were achieved with the patented product. Ideally, the company’s innovation during the patented product’s life cycle will have led to new products poised to grow as the old patented product’s revenues decline. Often, however, the company’s strategy is to pursue a “product switch,” in which the patented product is replaced with a new product that provides little or no therapeutic improvement but for which no generic competition is imminent.

 

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Copyright or trademark protection? Sometimes, it’s both

In general parlance the terms “copyright”, “trademark”, and “patent” are often incorrectly interchanged, much to the chagrin of IP practitioners. While all three types of IP are very different, they are inextricably linked in many cases.

 

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How effective is risk management today?

If you want to know how effective risk management is, you should ask the customer and not the provider.

 

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What will 2020 risk & compliance benchmarks look like?

It’s that time of year again when risk and compliance professionals from around the world contribute to an industry-defining resource – the annual Definitive Risk & Compliance Benchmark Report.

 

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Competition Tribunal confirms business justification is the paramount consideration in an abuse of dominance case

Competition law

On October 17, 2019, the Competition Tribunal (Tribunal) rendered its decision in CT-2016-015 Commissioner of Competition v. Vancouver Airport Authority (Decision) [PDF], dismissing the Commissioner of Competition’s (Commissioner) application.

 

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When it rains, it pours – Supreme Court of Canada allows umbrella purchaser claims

Umbrella purchasers are persons who purchased a product that was neither manufactured nor supplied by the cartel members.

 

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Competition Bureau reinforces its focus on non-notifiable transactions

In a recent news release, the Competition Bureau made official its intention to increase the resources it devotes to the identification and review of non-notifiable merger transactions.

 

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KPMG studies ERM and gets some things right but misses the key point

There’s some good material in KPMG’s Enterprise Risk Management Benchmarking Study, subtitled Evolving to an active, integrated and agile approach amidst change and disruption.

 

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Alberta Court of Appeal confirms super-priority status of restructuring charges

There were conflicting decisions from Nova Scotia (Rosedale) and Alberta (Canada North) on whether it was possible for CCAA and BIA created super-priority claims to rank senior to the Crown’s deemed trust claims under the fiscal statutes.

 

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Listing in the REIN: Cruel and unusual punishment under the Charter?

Does the automatic listing in the Register of enterprises ineligible for public contracts (REIN) constitute cruel and unusual punishment within the meaning of section 12 of the Canadian Charter of Rights and Freedoms?

 

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Court highlights value of first-settling defendant co-operation in “ice breaker” settlements

In a recent decision from the Ontario Superior Court of Justice, Di Filippo and Caron v. Bank of Nova Scotia et al, 2019 ONSC 3282 (Di Filippo), Justice Belobaba approved an “ice breaker” settlement in a price-fixing class action despite the “token” settlement amount — which represented less than 6% of the settlement paid by the same defendants in parallel proceedings in the U.S. — on the basis of the “inestimable value” of the first-settling defendants’ agreement to co-operate with class counsel.

 

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Risk and the lemonade stand: how it matters in the simplest settings

This is a ‘risk management’ challenge. What are the parents’ objectives and how would you go about assessing whether the likelihood of achieving them is acceptable and, if not, what actions to take?

 

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Post-filing suppliers do not implicitly benefit from any priority on the proceeds of sales of assets in CCAA proceedings

The Québec Court of Appeal confirmed that unpaid post-filing suppliers, which had neither sought a court-ordered charge to secure their post-filing claims nor availed themselves of their right to stop supplying goods or services to the debtor, cannot claim an implicit priority on the proceeds of sales of assets in proceedings under the Companies’ Creditors Arrangement Act proceedings.

 

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When does “good faith” limit a company’s choices?

In 2014, the Supreme Court released its ground-breaking decision to recognize a common law duty of good faith in the performance of contracts in Bhasin v Hrynew.

 

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