Archive for the ‘anti-suit injunctions’ Category

International Litigation Articles in the Latest Issue of The Advocates’ Quarterly

October 2, 2012

The latest issue of The Advocates’ Quarterly Vol. 40, Number 2 (September 2012) (Canada Law Book -print or online subscription required)  has some articles of  interest to international litigators:

  • Matthew E. Castel, Anti-Foreign Suit Injunctions in Common Law Canada and Quebec Revisited (195)
  • Nicholas Pengelley, ‘‘We All Have Too Much Invested to Stop’’: Enforcing Chevron in Canada (213)
  • Ken MacDonald, The Hague Convention Stymies Actions Against Foreign Corporations: Khan Resources Inc. v. Atomredmetzoloto JSC (303)

S.I. Strong, “Navigating the Borders Between International Commercial Arbitration and U.S. Federal Courts: A Jurisprudential GPS”

June 6, 2012

S.I. Strong (University of Missouri School of Law) has posted “Navigating the Borders Between International Commercial Arbitration and U.S. Federal Courts: A Jurisprudential GPS”, Journal of Dispute Resolution (forthcoming)/University of Missouri School of Law Legal Studies Research Paper No. 2012-12. Here is the abstract:

To the uninitiated, international commercial arbitration may seem as if it “isn’t all that different” from domestic arbitration or litigation. However, the truth of the matter is that international commercial arbitration is an extremely challenging area of law, full of traps for inexperienced parties.

This is particularly true with respect to the parties’ ability to seek relief from U.S. federal courts. While some advocates may believe that a visit to the judge is the best and fastest way to get results in certain types of procedural disputes, that tactic is often inappropriate in international arbitral proceedings, where the tribunal’s jurisdiction and powers are frequently in tension with the jurisdiction and power of various national courts (since there may be multiple courts that could potentially become involved with a particular matter).

Quite simply, this area of practice is unlike any other, and the only way to avoid making expensive and time-consuming errors is to gain an overview of the process from a specialist’s perspective. This Article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this Article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole.

Written especially for busy lawyers, this Article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique challenges that arise in this complex area of law. Experienced counsel will also find the discussion helpful, not only as a means of explaining the process to clients and junior colleagues but also as a tactical tool to help consider various options in situations where a U.S. federal court may become (or has become) involved in an international arbitral proceeding.

Download a pdf copy of the article at SSRN here.

Ryan M. Vassar, “Litigation Parallelisms: A Comment on Parallel Proceedings and Anti-Suit Injunctions Spanning the Parallels and Meridians”

May 24, 2011
South Texas College of Law

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Ryan M. Vassar, Student-at-law (South Texas College of Law) has posted “Litigation Parallelisms: A Comment on Parallel Proceedings and Anti-Suit Injunctions Spanning the Parallels and Meridians”. Here’s the abstract:

The globalization of trade and commerce carries with it the difficult task of resolving disputes involving parties transacting business across state and national borders. When transactions occur over jurisdictional boundaries and a dispute arises between the parties, which yields litigation in multiple locations, what factors should a court consider in determining whether it is proper to grant a request to enjoin one of the parties from proceeding with litigation in the foreign forum?

This comment discusses the current trends in the law regarding parallel proceedings and anti-suit injunctions between intra-national and international jurisdictional lines. Specifically, this comment discusses (1) cases within the Sixth and Ninth Circuit courts where parallel proceedings and anti-suit injunctions were at issue, (2) whether these courts have elected to follow the majority or minority of jurisdictions in the application of the standards required to grant an anti-suit injunction, and (3) how those courts applied these standards.

You may download a copy of the article from SSRN here.

UPDATE: Court of Appeal sets aside foreign arbitral enforcement judgment in Znamensky v. Donaldson

April 29, 2010
This is an update on the recent Ontario foreign arbitral award enforcement proceedings in Znamensky Selekcionno-Gibridny Center LLC v. Donaldson International Livestock Ltd., 2009 CanLII 51197 (ON S.C.);  See my backgrounder here.

In reasons released today and as I predicted, the Court of Appeal for Ontario has taken a fresh look at the arguments relating to issue estoppel and change of arbitral venue as they related to the underlying alleged death threats which apparently pre-empted Donaldson from participating in the arbitration in Russia.

Essentially, the per curiam opinion per Gillese, Rouleau and Watt JJ.A., allowed the appeal and set aside the judgment of Pitt, J., based upon two errors of law. First, the doctrine of issue estoppel did not preclude the application judge from considering the alleged death threat. The Sentence from the Prior Appeal Decision:”[i]n my view, the time to have requested the trial of the issue concerning the death threats was when the parties were before the motion judge” was held not to be dispositive:

“The Sentence was made in response to a request by the appellant that this court order a trial of the issue.The court refused, explaining that it was not appropriate to grant the request because the appellant had not requested that relief in the proceedings before Gans J.”

The Court points to the first sentence of para. 30 of the Prior Appeal Decision  which leaves the door open for Donaldson:

“Should [the respondent] take steps to enforce its arbitral awards against [the appellant] in the Ontario courts, then it would seem to me that [the appellant] should be free to resist the enforcement of those awards on whatever basis it chooses, subject to the ruling of the presiding judge. [Emphasis added.]

[14] Nor do we accept that issue estoppel flows from the statements made by Gans J. in the injunction motion. Justice Gans observations on the issue of the alleged death threats were made in the context of an interim interlocutory proceeding seeking to prevent the ICAC arbitration from proceeding. In our view, those remarks do not bind the judge deciding the enforcement proceedings.

[15] In any event, it appears that Gans J.’s finding on this issue rests on a misapprehension of the evidence. The respondent had not, as Gans J. appears to have understood, offered to change the venue of the arbitration hearing to a neutral location. Rather, as the respondent confirmed to this court, the offer was to allow that part of the arbitration involving testimony by the appellant’s witnesses to be heard in a neutral location. The balance of the arbitration would have taken place in Moscow. Thus, the offer could not amount to a complete answer to the appellant’s concerns because the appellant would still have had to go to Russia for all aspects of the arbitration except for the giving of its testimony.

Second, even if the preconditions to the operation of issue estoppel were established, the application judge failed to exercise the court’s residual discretion taking into account the entirety of the circumstances, including weighing the factors for and against the exercise of the residual discretion: citing, Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.R. 460 at para’s 33, 66 and 80. 
The Court of Appeal concludes:
“…It was an error to fail to consider this residual discretion. In the circumstances of this case where the issue of the alleged death threats has never been decided on the merits and where that undecided issue goes to the heart of the appellant’s ability to participate in the arbitration the application of issue estoppel would have worked an injustice”

Accordingly, the enforcement application was remitted for a fresh determination to be made in accordance with the panel’s reasons. with costs of the appeal and thrown away below in favour of the appellant fixed at $25,000 and $20,000, respectively, to be set off against outstanding costs order in favour of the respondent.

H/T to Allan L. Herman, co-counsel for the appellant, Donaldson International Livestock Ltd. for alerting me to this decision.

My article published in Transnational Dispute Management (TDM), Vol. 7, No. 1 (April 2010)

April 19, 2010
My article “Recent Private International Law Developments Before the Supreme Court of Canada ” has been published in Transnational Dispute Management (TDM), Vol. 7, No. 1 (April 2010).  The TDM issue table of contents is available here (subscription required).

Here is the abstract:

A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd’s Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta’s Limitations Act, governs when a party seeks the recognition and enforcement in Alberta of a foreign arbitral award).

The Teck Cominco v. Lloyd’s Underwriters decision – released by the Supreme Court of Canada on February 20, 2009 – provides clarity on the statutory codification of the forum non conveniens doctrine vis-a-vis parallel proceedings. However, it does so without reference to the alternative remedy of an anti-suit injunction, which the author considers by providing a comparative analysis of the differing jurisprudential approaches to jurisdiction and forum non conveniens following Morguard in Canada and Sinochem in the United States.

Although declining to hear the Drabinsky v. King appeal, the granting of leave in Yugraneft v. Rexx Management Corporation on February 26, 2009 offers cautious optimism for a definitive ruling by Canada’s highest court on the issue of the applicability of provincial limitation periods to the recognition and enforcement of foreign arbitral awards. Hopefully, the Supreme Court of Canada will address the vexing problem of the lack of harmonization or unification between federal and/or inter-provincial statutory regimes under the law of limitations respecting foreign judgments and foreign arbitral awards. Until then, a party seeking recognition and enforcement of a foreign arbitral award is cautioned to commence an application to enforce the final arbitral award within the applicable provincial limitation period.


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