Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Archive for June, 2008

Damages (Contract or Tort) = Real and Substantial Connection

Posted by Seva on June 18, 2008

Irrespective of whether an action is in contract or in tort, damages suffered in the province prima facie indicate a real substantial connection between the province and the “facts on which a proceeding is based” (s. 10 of the ULCC’s CJPTA) This useful conclusion can be gathered from the decision of Mills J. of the SKQB in Big Sky Farms Inc. v. Agway Metals Inc., 2008 SKQB 53.

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A Multitude of Real and Substantial Connections

Posted by Seva on June 18, 2008

It’s not a novel point, but always nice to have an additional authority for the argument that jurisdiction simpliciter of a court does not necessarily exclude jurisdiction simpliciter of other courts. As Mr. Justice Ehrcke confirmedin Mountain West Studios Ltd. v. Dalderis, 2008 BCSC 697, “depending on the facts of a case, there may be a real and substantial connection with more than one jurisdiction.”

On the facts of the case before him, Ehrcke J. concluded that the fact that the defendant (resident of Alberta) worked for the plaintiff (resident of B.C.) in both B.C. and Alberta was sufficient to show a real and substantial connection to B.C. Although he did not expressly indicate if this fact pattern fell under one of the s. 10 CJPTA RaSC presumptions, it seems to be congruent with s. 10(e)(i): “the contractual obligations, to a substantial extent, were to be performed in British Columbia”.

Additionally, Ehrcke J. also relied on the recently discussed BCCA decision in Purple Echo for the proposition that the governing law and exclusive jurisdiction clauses pointing to B.C., although attacked by the defendant as being part of a superseded and thus unenforceable contract, “showed a good arguable case that [jurisdictional facts] can be established.”

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Roundup of Conflicts Papers

Posted by Seva on June 12, 2008

For the readers who don’t regularly read, I wanted to point out a post with a roundup of conflict of laws articles published in the past several months. While most papers focus on European law, the following are written on common law issues:

  • A. Rushworth, ‘Assertion of ownership by a foreign state over cultural objects removed from its jurisdiction‘ (2008) Lloyd’s Maritime and Commercial Law Quarterly 123 – 129.

Discusses the Queen’s Bench Division judgment in Iran v Barakat Galleries Ltd on preliminary issues in an action to recover antiquities taken without permission from Iran, examining whether the court had jurisdiction to enforce foreign law by returning property to a foreign sovereign.

This case was also previously discussed on this blawg.

  • J. Davies, ‘Breach of intellectual property warranties and jurisdiction‘ (2008) 19 Entertainment Law Review 111 – 113. Abstract:

Comments on the Chancery Division judgment in Crucial Music Corp (Formerly Onemusic Corp) v Klondyke Management AG (Formerly Point Classics AG) on whether to set aside service out of the jurisdiction in a dispute about warranties in a copyright licensing agreement for music. Considers the place of performance and the place where damage was sustained within the meaning of the Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1988 art.5.

  • Y. Amin & A. Rook, ‘Capacity to marry and marriages abroad’ (2008) 152 Solicitors Journal 8 – 10. Abstract:

Examines the Court of Appeal ruling in Westminster City Council v IC on whether: (1) the marriage of a British man with severe learning disabilities conducted over the telephone to a woman in Bangladesh, which was valid according to Sharia law was recognised as a valid marriage according to English law, where it was accepted by the parties that the man lacked the capacity to marry in accordance with English law; (2) the court’s inherent jurisdiction was usurped by the Mental Capacity Act 2005; and (3) the court could prevent the man leaving the jurisdiction to travel to Bangladesh.

  • W. Shi, ‘Review: Private International Law and the Internet (2007) by Dan Jerker B. Svantesson’ (2008) 13 Communications Law 64 – 65.
  • D. Rosettenstein, ‘Choice of law in international child support obligations: Hague or vague, and does it matter? – an American perspective’ (2008) 22 International Journal of Law, Policy and the Family 122 – 134. Abstract:

Discusses, from a US perspective, the choice of law rules under the draft Convention on the International Recovery of Child Support and other Forms of Family Maintenance. Considers the significance and value of these rules, and compares them to the regime applicable in US child support proceedings.

Additionally, I also note the following (yet) unpublished paper by Mr. Antonin Pribetic:

With respect to foreign immovables, Canadian courts have misapplied, and at times, ignored the lex situs rule and the in personam exception in the jurisdictional context. Part of the problem stems from a judicial preference to apply the lex situs rule as exclusively a choice of law rule, while allowing for the in personam exception as a corollary to the “real and substantial connection” test and the factors enumerated by the Ontario Court of Appeal in Muscutt v. Courcelles.


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Can a Plaintiff Be Reasonably Expected to Know Conflicts Rules?

Posted by Seva on June 11, 2008

In the context of the “unfairness to the plaintiff” factor from the Muscutt test for real and substantial connection, does reasonable expectation of the plaintiff include knowledge of the conflict of laws rules? As the decision of the Ontario Superior Court of Justice in Pavacic v. Nicely Estate implicitly indicates, the answer to this question is no. Apparently, reasonable knowledge is limited to “common sense” rather than “legal” expectations. Does this conclusion make sense, and should this conclusion be part of the jurisdiction simpliciter question at all?

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Contextual Natural Justice

Posted by Seva on June 3, 2008

When defending against recognition and enforcement of a foreign judgment, natural justice of the foreign procedure must be evaluated from based on the Canadian standard of fairness: Beals v. Saldanha. As the decision of the Nova Scotia Supreme Court in Arcadia International v Janmeja, 2008 NSSC 91 illustrates, natural justice must be evaluated not only as the procedural rules under which a proceedings are commenced or conducted, but also the factual matrix in which such rules are applied.

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