Real and substantial connection is an inherently imprecise concept; its existence determined based on the full factual matrix of a particular matter. While fine for regular litigation, where the judge has the inherent jurisdiction to make this determination, it appears somewhat deficient in administrative contexts, where the jurisdiction should be determined via a standard test capable of being applied by non-judicial personnel. It appears that the Copyright Board of Canada was up to this challenge, elucidating just such a test in its recent decision on webcasting tariffs (see also discussion of this decision on Michael Geist’s blog).
Posts Tagged ‘Jurisdiction’
Posted by Seva on October 31, 2008
Posted by Seva on March 12, 2008
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: