Archive for the ‘civil procedure’ Category
May 10, 2013
Tanya J. Monestier (Roger Williams University School of Law) has published “(Still) a ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada”, Fordham International Law Journal, Vol. 36, p. 397, 2013/Roger Williams Univ. Legal Studies Paper No. 136. The abstract reads:
In April 2012, the Supreme Court of Canada released the most important decision on personal jurisdiction in over twenty years. The Van Breda decision was intended to clarify, once and for all, the application of the “real and substantial connection” test to ex juris defendants. The Supreme Court in Van Breda adopted an approach to the real and substantial connection test that relied on the plaintiff fitting himself within one of four presumptive factors in order to establish jurisdiction: (a) The defendant is domiciled or resident in the province; (b) The defendant carries on business in the province; (c) The tort was committed in the province; (d) A contract connected with the dispute was made in the province. The Court also left open the possibility of creating additional presumptive factors in the future. The presumptive factors approach was intended to re-orient the jurisdictional test toward objective factual connections between the forum and the cause of action and to establish a simple and predictable framework for courts to use in making jurisdictional determinations. In this Article, I comprehensively examine the new presumptive factors approach to jurisdiction adopted by the Supreme Court in Van Breda with a view to exposing its shortcomings. I argue that this approach to jurisdiction – while simple and predictable on its face – will actually complicate jurisdictional determinations for the foreseeable future. Litigants will try to find creative ways to fit themselves within one of these four factors. And courts will spend years unpacking and defining the contours of the four presumptive factors. I also argue that the Court in Van Breda failed to provide meaningful guidance on how all pieces of the jurisdictional puzzle fit together. Among the outstanding questions: How does the real and substantial connection test work in non-tort cases? How do the traditional jurisdictional bases of consent and presence fit into the jurisdictional mix? Can the forum of necessity doctrine be reconciled with the real and substantial connection test? How does the test apply to the enforcement of foreign judgments? The Court simply left these hard questions until later. In short, while the Court in Van Breda was on the right track, it got derailed – which may ultimately mean another twenty years until the outstanding jurisdictional issues are sorted out.
Download a copy of the article at SSRN here.
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Tags:Fordham International Law Journal, Jurisdiction, Lawsuit, Supreme Court
Posted in international litigation, Supreme Court of Canada, forum non conveniens, jurisdiction, International, civil procedure, personal jurisdiction, jurisdiction simpliciter, Tanya J. Monestier, international law, international dispute resolution, Van Breda, assumed jurisdiction, Charron Estate, civil jurisdiction, Civil Litigation, subject-matter jurisdiction, Adjudicative Jurisdiction, Territorial Jurisdiction, Van Breda v. Village Resorts Ltd., international commercial litigation | Leave a Comment »
March 11, 2013
Balancing a guitar & hula hoop at the Pike Place market in Seattle (Photo credit: Wikipedia)
The recent BC Supreme Court decision in Ruloff Capital Corporation v. Hula, 2013 BCSC 322 (CanLII) poses the following question on forum non conveniens and parallel proceedings:
[65] Does a finding that one party can acquire representation in another jurisdiction, coupled with the fact that the other jurisdiction, for reasons not articulated, has accepted jurisdiction over the parties, trump the objective in Teck to ensure the action is tried in the jurisdiction that has the closest connection to it? (more…)
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Tags:California, California Superior Court, CanLII, Fasken Martineau, Hulavision, NBCUniversal, Supreme Court, Supreme Court of Canada
Posted in British Columbia Supreme Court, Burden of Proof, Civil Litigation, civil procedure, CJPTA, Court Jurisdiction and Proceedings Transfer Act, forum non conveniens, jurisdiction, jurisdiction simpliciter | Leave a Comment »
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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Tags:Civil procedure, Conflict of Laws, Forum non conveniens, International law, Pepperdine University School of Law, State court (United States)
Posted in choice of forum, choice of law, civil procedure, conflict of laws, forum non conveniens, forum selection, forum selection clause, Forum Shopping, private international law, public international law, Transnational, Transnational Law, transnational litigation | Leave a Comment »
February 1, 2013
[38] I have no hesitation in concluding that an award of full indemnity costs is required in the circumstances of this case. I find that the plaintiffs’ conduct, in faking a judgment of this court, constitutes a scurrilous and fraudulent attack on the administration of justice. The plaintiffs’ actions amount to a contemptuous and reckless disregard for the judicial process and were calculated to obstruct or interfere with the due course of justice in these proceedings. The plaintiffs’ behaviour was “reprehensible, scandalous and outrageous.” Such reckless attacks on the administration of justice clearly constitute conduct requiring chastisement and deterrence.
[39] I find that the defendants are entitled to full indemnity costs, payable by the plaintiffs D’Souza and D’Gama forthwith. Costs are awarded as follows:
Woldanskas $14,974.60
Linton/Jagielski $10,659.35
Gills $14, 617.97
inclusive of disbursements and HST.
[40] The plaintiffs are prohibited from taking any fresh step in these proceedings until these costs have been paid in full.
Master Dash Order
[41] There is a subsidiary issue involving an order of Master Dash on April 26, 2011, obtained without notice, granting leave to the plaintiffs to register a certificate of pending litigation against the Property (the CPL order). No CPL has been registered as yet.
[42] The plaintiffs have refused or been unable to produce the original of Master Dash’s order. The court record apparently contains no original order or endorsed motion record.
[43] It appears that the CPL order of Master Dash may also be a fake.
[44] In any event, it was obtained without notice. The noting in default of the Gills was improper and constituted sharp practice.
[45] In the circumstances, my order shall issue setting aside the CPL order of Master Dash dated April 26, 2011.
Read the decision of Penny J. in John Joseph AKA John D’Souza and Peter D’Gama v. Ritchie James Linton, et al. 2013 ONSC 70 here.
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Tags:Defendant, Law, Lawsuit, Plaintiff
Posted in Civil Litigation, civil procedure, fair trial, fraud, fundamental justice, Judge, judging, judgments, Ontario, Ontario Rules of Civil Procedure, paralegal | 2 Comments »
January 23, 2013
Samuel P. Baumgartner (University of Akron – School of Law) has posted “Understanding the Obstacles to the Recognition and Enforcement of U.S. Judgments Abroad”, New York University Journal of International Law and Politics (JILP), Vol. 44, 2013/U of Akron Legal Studies Research Paper No. 13-01. Here’s the abstract:
Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to adopt federal legislation on the question of recognizing and enforcing foreign judgments in the United States. And at the Hague Conference of Private International Law, the project – begun in the 1990s and later shelved – to enter into a world-wide convention on the recognition of foreign judgments, has just been put on the agenda for further study.
In this Article, I focus on the major obstacles U.S. judgment holders have encountered abroad as a matter of foreign recognition doctrine and to analyze the reasons underlying those obstacles. This should help lawmakers and treaty negotiators better understand what sorts of problems U.S. judgments holders are likely to encounter and why. I propose that we distinguish those obstacles on the basis both of the purpose they are meant to serve and of the way in which they have developed. Thus, I submit that the doctrinal obstacles identified pursue three distinct purposes: the protection of the sovereignty of the recognition state; the protection of other public interests of the recognition state; and the protection of the party against whom the U.S. judgment is to be used from what the recognition state views as substandard legal norms or procedural treatment. I further suggest that we separate the doctrinal obstacles encountered by U.S. judgments holders abroad into two categories on the basis of how they have developed. The first category consists of doctrines that were set in place some time ago and that apply to all judgments from jurisdictions with which the relevant country does not have a recognition treaty, including the United States. The second category consists of slight changes to existing recognition doctrine that some foreign jurisdictions have adopted specifically in reaction to litigation in the United States. This second category has come about, I argue, through the operation of four factors: power politics, domestic legal and procedural culture, the preferences of groups and individuals inside and outside the state apparatus, and relevant information asymmetries.
A copy of the paper is available for download at SSRN here.
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Posted in civil procedure, comparative law, conflict of laws, international law, international litigation, judgments, recognition, recognition and enforcement, Transnational, Transnational Law, transnational litigation | Leave a Comment »
Antonin I. Pribetic
