Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Posts Tagged ‘conflict of laws’

Roundup of Conflicts Papers

Posted by Seva on June 12, 2008

For the readers who don’t regularly read www.conflictoflaws.net, 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.

Enjoy!

Posted in General, international law | Tagged: , | 1 Comment »

Forum non Conveniens en Français

Posted by Seva on March 27, 2008

There is a very interesting post today at conflictoflaws.net 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.

Posted in forum non conveniens | Tagged: , | Leave a Comment »

Are We All Just Wasting Time?

Posted by Seva on March 12, 2008

This morning, I woke up to a very interesting comment left by professor John Swan, counsel with the Toronto firm of Aird & Berlis LLP and an adjunct professor at Osgoode Hall Law School.

Since the existence of the doctrine of renvoi is (i) necessarily entailed by the struc-ture of conflicts analysis and (ii) logically insoluble, one has to consider the pos-sibility that the entire structure of conflicts is founded on a fundamental misap-prehension of what is required to deal with cases of geographically complex facts, i.e., all cases that would be regarded as coming within the rubric of “Conflicts”.

After teaching the subject for over 25 years, I have come firmly to the conclusion that it simply should not exist but should instead disappear (i) with respect to issues of jurisdiction and the recognition and enforcement of foreign judgments into questions of constitutional law within Canada and international law outside it, and (ii) with respect to all issues of contracts, torts, etc., into simple issues of those areas. See Swan, “The Canadian Constitution, Federalism and the Conflict of Laws” (1985), 63 Canadian Bar Review 272, “Choice of Law in Contracts” (1991), 19 Canadian Business Law Journal 213, and “Federalism and the Conflict of Laws: The Curious Position of the Supreme Court of Canada” (1995), 46 University of South Carolina Law Review 923.

I admit that this is a perspective that I have not been exposed to before, not in the curriculum of the conflict of laws course that I took or my conversations with professors or practitioners. However, the idea is intriguing to me. Is the whole area of conflict of laws merely a byproduct of some overzelous lawyers or judges who had to create a whole new area of law instead of realizing that the questions they faced could be resolved within the existing frameworks, or is it that the discrete nature of this area of law has outlived its usefulness? In other words, in the days of pragmatic and functional approach to law, rather than the strict formal approached espoused in the 19th century, is our current legal system sufficiently flexible to absorb conflicts into existing legal dogmas?

Even more importantly (in my mind), I have the following two questions about Prof. Swan’s conclusions:

Read the rest of this entry »

Posted in choice of law, foreign judgments, General, jurisdiction simpliciter | Tagged: , , , | 1 Comment »

 
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