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Friday April 15th, 2011

Energy Security and Climate Change: A Canada-US Common Approach? – Panel Four: A New Wavelength? Carbon Tax, Cap & Trade, and Market Adaptation


Cyndee Todgham Cherniak, Counsel, McMillan LLP, Toronto, ON


Jonathan H. Adler, Professor & Director, Center for Business Law and Regulation, School of Law, Case Western Reserve University, Cleveland, OH

Michal C. Moore, Professor, School of Public Policy, University of Calgary, Calgary, AB

Friday April 15, 2011, 9:00 a.m.-9:00 p.m.

Sponsored by the Canada-United States Law Institute at Case Western Reserve University School of Law and The University of Western Ontario Faculty of Law

The Henry T. King, Jr. Annual Conference has served as the premier forum for addressing the issues confronting the Canada-U.S. relationship. For nearly three decades, the annual conference has united members of the respective governments, corporate leaders, legal practitioners, scholars, and the media in one forum to address issues from security and trade, to energy and the environment. Along the way, the event has fostered the development of longstanding professional linkages and personal friendships on each side of the border.

This year’s conference will address the Canada-US energy relationship. It is the only event that will:

Examine the relationship from a bi-national perspective;
Provide a comprehensive review of all sectors;
Examine policy implications at the federal, state, and provincial levels;
Discuss funding initiatives that will assist companies in securing the capital needed to develop these projects.

Additional Information About Our Guest…

Cyndee Todgham Cherniak is counsel in the International Trade Law and the Tax Law Groups in the firm’s Toronto office. Her practice includes: international law, including World Trade Organization (WTO) and Regional Trade Agreements (RTA) analysis, interpretations, and opinions, government relations strategies, and dispute settlement, North American Free Trade Agreement (NAFTA) verifications, value for duty, tariff classification, import and export controls and sanctions, bilateral restraint agreements, bilateral investment treaties, textile references, international protection of intellectual property rights, anti-dumping and countervailing duties, safeguard actions, government procurement, investor-state disputes, the Foreign Extraterritorial Measures Act , border and national security, food and product safety, anti-corruption and anti-bribery, and compliance programs/codes of conduct. Cyndee also has expertise in commodity tax (i.e., goods and services tax (GST), Ontario retail sales tax, Ontario employer health tax, Ontario land transfer tax, excise tax, gasoline and fuel taxes, and customs duties. Cyndee is known as an international lawyer who works closely with other lawyers, in-house counsel, international financial institutions, trade associations, non-governmental organizations and governments.

As a leading lawyer in international trade, Cyndee Todgham Cherniak is frequently contacted by top media organizations to share her views and insights on hot button trade issues. She has been a featured guest on several different radio and television shows such as Midday Markets and Headline on BNN – Business News Network, Today on China Radio International (CRI), The Rutherford Report on Corus Radio, The Agenda with Steve Paikin and iChannel’s @issue. Cyndee has been featured, quoted and/or has acted as a contributor to several articles in a variety of national newspapers including The Globe and Mail , National Post and The Vancouver Sun, and has been published as an author or contributor in numerous publications and e-zines, such as Law Times, Canadian Lawyer, Lawyers Weekly, Canadian Business, Embassy Magazine, The Hill Times and National Magazine. Cyndee is known for her expertise in the area of free trade agreements, regional trade agreements and preferential trading arrangements (collectively, PTAs).

She is an adjunct professor at Case Western Reserve University School of Law and teaches a course on NAFTA and bilateral trading arrangements (Spring 2008 and Spring 2007). Cyndee has reviewed over 100 RTAs as a consultant to the Asian Development Bank, has written an extensive report on all aspects of RTAs and has conducted workshops for developing countries on the negotiation of free trade agreements. Cyndee was invited by the House of Commons, International Trade Committee to participate as a witness on the Canada-EFTA Free trade Agreement (March 11, 2008). Cyndee provides advice to domestic and multinational corporations about maximizing opportunities by taking advantage of the benefits under existing RTAs, analyzing market access obstacles or restrictions in foreign jurisdiction and government lobbying to remove or minimize such obstacles in RTA negotiations, RTA compliance, RTA due diligence, drafting agreements to take advantage of RTA benefits. Cyndee also advises companies on structuring transactions and drafting to protect investor rights under bilateral investment treaties (BITs) and Foreign Investment Protection and Promotion Agreements (FIPAs). Further Cyndee advises governments about all aspects of RTA negotiations, including transparency and implementation of RTA rights and obligations and procedural fairness. Cyndee’s expertise at reviewing RTAs, enables her to act as an arbitrator, and provide advice to corporations and governments concerning negotiation matters and post-agreement compliance, interpretation and dispute settlement.

Cyndee was the author of the 2007-2008 & 2008 – 2009 Niagara Moot problems. The 2007-2008 problem focused on the use of the national security exception in the NAFTA , General Agreement on Tariffs and Trade, 1994 and the General Agreement on Trade in Services. The problem also focused on the Western Hemisphere Travel Initiative, the APHIS fees and a hypothetical issue under the energy provisions of the NAFTA.

Cyndee advises clients on WTO dispute settlement, NAFTA disputes settlement (including bi-national panel reviews and investor-to-state dispute settlement). Cyndee has assisted a respected trade practitioner in advice to Canadian stakeholders in connection with WTO cases including, Canada – Certain Measures Concerning Periodicals , Canada – Certain Measures Concerning the Automobile Industry , Canada – Patent Protection of Pharmaceutical Products , United States – Treating Export Restraints as Subsidies , United States – Preliminary Determinations with Respect to Certain Softwood Lumber from Canada , and United States – Continued Dumping and Subsidy Offset Act of 2000 . Cyndee has participated as part of a team, which provided advice to stakeholders or the Government of Canada in respect of Chapter 11 of the NAFTA cases, including Re: Ethyl Corporation, United Postal Services, and Tembec Corp.

Cyndee provides advice on doing business in Canada to companies in emerging markets, such as China, India, Brazil and Mexico. She represented the Government of China, Chinese Associations and/or exporters in the three of the first four anti-dumping and countervailing duty cases against China (outdoor barbeques, carbon steel and stainless steel fasteners and copper pipe fittings) and the first China specific safeguard case initiated by Canada against outdoor barbeques from China. She also participated in the successful representation of a coalition of importers, retailers and distributors in a China-specific safeguard case that was filed but never initiated against residential furniture from China. In addition, she represented the Government of China, Chinese Associations and exporters in the recent global safeguard case against the import of bicycles and bicycle frames.

Cyndee has represented the China Chamber of Commerce for Foodstuffs, Native Produce and Animal By-Products in the anti-dumping cases against garlic from China. Cyndee also represented a major user of grain corn in the anti-dumping and countervailing duty case in Canada against U.S. grain corn. Cyndee represented an importer of bicycles in an expiry review regarding the AD Order against bicycles from China and Chinese Taipei. Cyndee further represented a Canadian domestic steel producer in anti-dumping cases from numerous countries.

Cyndee also provides advice to Canadian companies doing business in China and/or with Chinese companies. She places an emphasis on risk management while assisting clients in pursuing opportunities in China to reduce their exposure to global threats and to protect company assets. She has provided advice to both large and small companies about the protection and enforcement of intellectual property rights in China. She assists clients in undertaking due diligence prior to entering into business relationships in China (including business partners, joint ventures, customers, suppliers and acquisitions), and provides advice on intellectual property rights protection, tariff classification and all aspects of customs law, including Canada’s purchaser in Canada rules, royalties, calculation of value for duty and other customs issues. Cyndee has assisted companies in negotiating joint venture agreements, licensing agreements and asset sharing agreements with Chinese counter-parts. She has also counseled clients concerning the Administrative Monetary Penalty System (AMPS).

Jonathan H. Adler is Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law, where he teaches courses in environmental, administrative, and constitutional law.

Professor Adler is the author or editor of four books on environmental policy and over a dozen book chapters. His articles have appeared in publications ranging from the Harvard Environmental Law Review and Supreme Court Economic Review to The Wall Street Journal and The Washington Post. Professor Adler is a contributing editor to National Review Online and a regular contributor to the popular legal blog, “The Volokh Conspiracy.” A 2007 study identified Professor Adler as the most cited legal academic in environmental law under age 40, and his recent article, “Money or Nothing: The Adverse Environmental Consequences of Uncompensated Law Use Controls,” published in the Boston College Law Review, was selected as one of the ten best articles in land use and environmental law in 2008.

In 2004, Professor Adler received the Paul M. Bator Award, given annually by the Federalist Society for Law and Policy Studies to an academic under 40 for excellence in teaching, scholarship, and commitment to students. In 2007, the Case Western Reserve University Law Alumni Association awarded Professor Adler their annual “Distinguished Teacher Award.” Professor Adler serves on the advisory board of the NFIB Legal Foundation, the academic advisory board of the Cato Supreme Court Review, and the Environmental Law Reporter and ELI Press Advisory Board of the Environmental Law Institute. A regular commentator on environmental and legal issues, he has appeared on numerous radio and television programs, ranging from the PBS “Newshour with Jim Lehrer” and NPR’s “Talk of the Nation” to the Fox News Channel’s “O’Reilly Factor” and “Entertainment Tonight.”

Prior to joining the faculty at Case Western, Professor Adler clerked for the Honorable David B. Sentelle on the U.S. Court of Appeals for the District of Columbia Circuit. From 1991 to 2000, Professor Adler worked at the Competitive Enterprise Institute, a free market research and advocacy group in Washington, D.C., where he directed CEI’s environmental studies program. He holds a B.A. magna cum laude from Yale University and a J.D. summa cum laude from the George Mason University School of Law.

Michal Moore is Professor of Energy Economics, and holds a Senior Fellowship at the School for Public Policy and the Institute for Sustainable Energy, Environment and Economy at the University of Calgary.

He is a research fellow at the Cornell Center for a Sustainable Environment and specializes in research on cross-border regulatory issues affecting the energy industry.

He lectures in microeconomics and energy policy at both universities. He formerly served as Chief Economist at the National Renewable Energy Laboratory in Golden, Colorado and is a former regulator in the energy industry in California.

A native Californian, he was born in 1947 and maintains a home in rural Mendocino County and in Calgary, Alberta. He holds a current private pilot’s license and is a former SCCA-trained driver. He is an active mountaineer and writes and illustrates children’s stories.”