Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Archive for March, 2008

Final? Check! Jurisdiction? Presumed! Enforcement? Not in Small Claims Court!

Posted by Seva on March 31, 2008

Surfing for conflict of laws news, I came across a recent decision of the Nova Scotia Supreme Court in Direct Cash ATM Processing Partnership v. Eastside Billiards and Lounge Ltd., 2008 NSSC 77. Although not groundbreaking, I found the decision interesting with respect its discussion of conditions for enforcing foreign judgments at common law and the appropriate venue for such enforcement.

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Forum non Conveniens en Français

Posted by Seva on March 27, 2008

There is a very interesting post today at about a French court declining jurisdiction to transfer the proceedings to U.S. court, which in turn almost deferred the proceedings to a French court.

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The Yin and Yen of Respect for International Law

Posted by Seva on March 26, 2008

Due to a dearth of recent Canadian conflict of laws decisions, I find myself paying more and more attention to U.S. cases, especially the differences between the U.S. and Canadian approaches to this subject. Having only yesterday discussed the difference in approaches to forum non conveniens, the decision of the U.S. Supreme Court in Medellín v. Texas (NYT article here), released today, provided me with a chance to consider a diametrically opposed path taken by the two legal systems with respect to domestic enforceability of international law.

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What Do Chicken Legs Have to Do with Forum Non Conveniens or Beware of Delaware!

Posted by Seva on March 24, 2008

What do chicken legs have to do with forum non conveniens? Not much, except that they led me to learn that Delaware forum non conveniens rules appear to be fundamentally different from our own. The case of Certain Underwriters at Lloyds … v. Tyson, 2008 WL 660485 (Del. Super. March 7, 2008) dealt with the defendant insured’s motion to dismiss or stay the plaintiff underwriter’s Delaware declaratory action to deny coverage, as its own claim for coverage was proceeding in Mississippi. The main subject matter of the claim was “damages totaling $113,529,815 [arising out of hurricane Katrina] … allegedly lost in the global chicken leg quarter markets [and] … property loss or damage to hatcheries, equipment, and disposal of dead chickens.”

Tyson’s motion was based on two forum non conveniens arguments: (1) Delaware action should be stayed because both actions were contemporaneously filed and thus the plaintiff cannot rely on the first to file rule; and (2) if Delaware action was filed first, then it should be dismissed or stayed as imposing an “undue hardship” on Tyson. The court dismissed both arguments, finding that the Delaware action was filed first and that forum non conveniens factors favoured the plaintiff.

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WSJ on Jurisdiction

Posted by Seva on March 20, 2008

As many people know, many plaintiffs favour certain US jurisdictions for launching personal injury suits, even if the underlying events happened quite far away (recall for example the classic Privy Council case of SNIA v. Lee Kui Jak). The underlying justification for this is that these jurisdictions are perceived as plaintiff friendly, with juries often awarding plaintiffs exorbitant awards, particularly for pain in suffering. Addressing this trend, the Wall Street Journal has published an editorial assailing the practice. I found the piece itself quite interesting, at least for its “layman” approach to jurisdiction, and especially in the light of this critical comment on it.

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Renvoi Doesn’t Help Get Artefacts Back

Posted by Seva on March 19, 2008

There is an interesting article by Derek Fincham J.D., currently a Ph.D. student at the University of Aberdeen in Scotland on a recently failed attempt to use the doctrine of renvoi to facilitate return of illegally taken artefact to the source country.

In short, a fragment of an ancient relief was taken from Iran between 1932 and 1974, at which point it was purchased by an unwitting French collector at a New York auction. In 2005, she attempted to sell the relief at Christie’s in London, at which point Iranian government got involved, filed a claim alleging title to the relief, and obtained an interlocutory injunction restraining the sale. Having conceded that under English and French law the relief was movable property to which lex situs (i.e. French law) applied, Iran’s chief argument was that English court should apply renvoi. Not only did it argue that the English court should apply the French conflict of law rules, but also that such rules, or more particularly the public policy behind them, would cause a French court to apply Iranian patrimony laws and thus order the return of the relief. Unfortunately, Iran could cite no precedents to bolster its position. In fact, it faced problems from the perspective of both legal systems, English and French.

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Muscutt in Alberta

Posted by Seva on March 19, 2008

As a follow-up to the post on the ONCA affirming the eight real and substantial connection factors elucidated in Muscutt, it appears that those principles are also the law in Alberta. At least this seems to follow from Royal and Sun Alliance Insurance Co. of Canada v. Wainoco Oil & Gas Co. 2004 ABQB 643, aff’d on other grounds 2005 ABCA 198, and a recent decision of Rooke J. in Wheeler v. 1000128 Alberta Ltd., 2008 ABQB 70:

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The Two Sides of Extraterritoriality

Posted by Seva on March 18, 2008

To those who have studied R. v. Hape in detail, the decision of Blanchard J. in Canadian Security Intelligence Service Act (Canada) (Re), 2008 FC 301 will probably not come as a big surprise. However, seeing as at the time I did not pay much attention to Hape due to its criminal law context, I found the CSISA decisin to quite interesting and, my opnion, very controversial in its conclusion regarding application of the Charter to extra-territorial state actions. In CSISA, Blanchard J. dealt with two issues: (1) the power of the court to issue extraterritorial information collection warrants; and (2) application of the Charter and the Criminal Code to CSIS investigative activities conducted off Canadian soil.

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