Archive for the ‘choice of forum’ Category

Two Important Ontario Attornment Decisions

September 16, 2013

The first decision is from the Court of Appeal for Ontario in Van Damme v. Gelber2013 ONCA 388  (Ont. C.A.) per  Doherty, J.A. (Cronk and Lauwers JJ.A. concurring). In Van Damme, the plaintiff, a successful businessman and philanthropist obtained judgment in the Supreme Court of New York against the defendant, Nahum Gelber (“Gelber”), relating to Van Damme’s purchase of a painting from Gelber. The painting was being held in Ontario pursuant to an Ontario court order.  Van Damme successfully moved in the Ontario proceeding for an order of recognition and enforcement New York judgment in Ontario and a variation of the earlier Ontario order directing that the painting be released to him, with costs on a substantial indemnity basis. (more…)

The Perils of Drafting Ineffective Forum Selection Clauses

May 31, 2013

Today’s decision of the Court of Appeal for Ontario in 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA 354 addresses issues pertaining to jurisdiction simpliciter, the effect of forum selection clauses and forum non conveniens. (more…)

Here Today, Guatemala: HudBay Minerals withdraws forum non conveniens motion in Canadian international human rights case

February 26, 2013

Photo of Angelica Choc, Adolfo Ich Chamán’s widow. (Dec. 1, 2010) Original image via mimundo.org.

Jeff Gray at the Globe & Mail, reports on three pending cases involving HudBay Minerals Inc. ["HudBay"] brought by Mayan Q’eqchi’ individuals from Guatemala, who have alleged human rights abuses were committed against them by the subsidiaries of Canadian mining companies. The Guatemalan victims claim that security guards employed by HudBay’s subsidiary at a Guatemalan mine shot and killed one man, shot and beat another and gang-raped 11 women. According to the story, HudBay has withdrawn its motion to stay the action on forum non conveniens grounds, which plaintiffs’ counsel describes as a “breakthrough”:

[Plaintiffs' counsel] Mr. Klippenstein is pursuing a $55-million claim in Ontario Superior Court over clashes in 2009 between local Mayan people opposing the mine and security and police allegedly acting on behalf of HudBay’s former local subsidiary. HudBay, which sold its interest in the mine in 2011, denies the allegations, saying they are “without merit.”

HudBay had been preparing to argue that the case should be heard in Guatemala, not Canada, on jurisdictional grounds – an argument that Mr. Klippenstein was expected to counter by pointing to well-documented problems with the small Latin American country’s justice system.

But Mr. Klippenstein claims the company abruptly changed its strategy after hearing depositions from his clients, who flew to Toronto from Guatelmala in December.

The Globe & Mail article adds:

“Contrary to Mr. Klippenstein’s statement, HudBay’s voluntary decision to have the cases heard in the Ontario Superior Court was based on its desire to avoid the complications of trying the cases in Guatemala, particularly in terms of time and travel,” HudBay John Vincic, HudBay’s vice-president of investor relations and corporate communications, said in an e-mail.

“Our decision does not create precedent or change the law in any way. Based on the cross-examinations referred to by Mr. Klippenstein, HudBay is increasingly confident the cases are without merit and will be favourably resolved on the merits in Ontario.”

Recently, Madam Justice Carol J. Brown granted Amnesty International intervenor status in Choc v. Hudbay Minerals Inc. et al., 2013 ONSC 998 (CanLII). Carol J. Brown, J.  concludes:

[12]           I am satisfied that Amnesty has discharged its onus to establish that its presence can assist the court in determining certain of the issues in the motions, and in bringing to the attention of the court considerations of an international nature regarding the issues in play in these cases. I am satisfied that it can bring a perspective different from that of the parties, particularly given its expertise in the areas of international human rights abuse, international and transnational business accountability, and as a result of its involvement in and consultation with the UN Special Representative on the Issue of Human Rights and Transnational Corporations. Given that Amnesty International will not be involved in any of the evidentiary or factual aspects of the cases, I do not find that intervention by Amnesty will cause undue disruption or delay in the motions. Given that Amnesty will only be involved in providing a different view with respect to the legal considerations to be had in determining the issues in the motions, there will be no opportunity for it to use these motions as a “political platform” as argued by the defendants. While the actions involve private disputes, namely actions involving individuals and an international Corporation, with operations in the plaintiffs’ home state, the issues involved have international, transnational and public policy overlays which make them appropriate for intervention by Amnesty, which, I find, can make a useful legal contribution.

[13]           Considering the issues raised in the pleadings, the nature of the three cases, and the nature of the interventions sought to be made by Amnesty, I grant leave to Amnesty to intervene. The intervention will be limited strictly to making submissions with respect to the issues of law, and particularly international law, standards and norms concerning the existence or scope of the duty of care.

The timing of the withdrawal of HudBay’s forum non conveniens motion is intriguing; but it may also have something to do with focusing arguments around ‘reverse veil piercing’ raised in Chevron/Lago Agrio enforcement proceedings in Ontario and elsewhere. Nevertheless, the defendants’ Rule 21 motion to dismiss the claims against them as disclosing no reasonable cause of action will proceed on March 4 and 5, 2013.

Stay tuned.

PCA Tribunal ‘Benchslaps’ Ecuador in Ongoing Chevron-Lago Agrio Dispute

February 8, 2013

Slap-in-the-face-300x226

An interesting development in the Lago Agrio/Chevron litigation battle , which was the subject of my  Guest Post: Comments on the Lago Agrio Plaintiffs Enforcement Action in Canada at Ted Folkman’s Letters Blogatory.

Via the Juicio Crudo Blog (original in Spanish):

 An international arbitration court yesterday issued a ruling in which it concludes that the Republic of Ecuador has violated previous interim awards of the same court authorized under international law and a treaty between the United States and Ecuador to not attempt to prevent the execution of a sentence of 19,000 million against Chevron Corp. (NYSE: CVX). In previous decisions, the court warned that if the arbitration Chevron ended imposing “any loss arising from the implementation (of the judgment) would be losses for which (the Republic) would be responsible (with Chevron) under international law.”

Convened under the authority of the Bilateral Investment Treaty (BIT, according to its acronym in English) between the United States and Ecuador, and administered by the Permanent Court of Arbitration at The Hague, the tribunal found that Ecuador breached previous court rulings and ordered to explain why the Republic should not be ordered to pay compensation to Chevron for all damages resulting from attempts by plaintiffs to enforce a judgment arising out of an environmental lawsuit against the company in Lago Agrio, Ecuador. (more…)

Donald Earl Childress III, “Forum Conveniens: The Search for a Convenient Forum in Transnational Cases”

February 4, 2013

Donald Earl Childress III (Pepperdine University School of Law) has posted “Forum Conveniens: The Search for a Convenient Forum in Transnational Cases”, Virginia Journal of International Law, Vol. 53, No. 1, p. 157, 2012.  The abstract reads:

This Article examines the forum non conveniens doctrine as it is applied by federal courts and state courts in present-day transnational litigation. The Article also explores what happens when the doctrine is invoked in cases involving foreign sovereigns. The Article uncovers empirical evidence suggesting increased use of the forum non conveniens doctrine by courts. Unfortunately, this increased use does not come with clear standards for application. After considering the underlying rationales for the doctrine and whether they are effectuated by the current doctrine’s usage in transnational cases, the Article proposes a new series of rules and factors to be balanced by courts when asked to apply the doctrine.

 A PDF copy of the paper is available for download on SSRN here.


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