As a follow-up to my recent post on the Court of Appeal for Ontario decision in Wang v. Lin, I’m quoted in an article by Christopher Guly in the The Lawyers Weekly March 8-13 issue: “When family breakdown spans the globe, from China to Canada“.
Archive for the ‘conflict of laws’ Category
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.
“Ordinary Residence” and “Habitual Residence” are the applicable jurisdictional tests in family law disputes, Ontario appeal court rules
January 24, 2013The Court of Appeal for Ontario in Wang v. Lin, 2013 ONCA 33 (CanLII) has held that the presumptive factors in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), 2012 SCC 17, [2012] 1 S.C.R. 572 (S.C.C.) do not fit within the established statutory scheme for asserting jurisdiction in family law matters under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.); the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”); and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). Rather, “ordinary residence” and “habitual residence” (arguably, “presence-based jurisdiction”) are the applicable jurisdictional tests under the Divorce Act and the CLRA,respectively:
[46] Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Breda in the context of a tort case. The Supreme Court in Van Breda was clear that the list of presumptive factors it identified related to tort claims and issues associated with those claims, and that the list of presumptive connecting factors is not closed. At para. 91, the court directed that:
In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:
(a) Similarity of the connecting factor with the recognized connecting factors;
(b) Treatment of the connecting factor in the case law;
(c) Treatment of the connecting factor in statute law; and
(d) Treatment of the connecting factor in the private international law of other legal systems with shared commitment to order, fairness and comity.
[47] While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA, respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.
Related articles
- Canadian court to Iran: Pay hostages’ legal bill (news.nationalpost.com)
- Ontario decision declines to expand Van Breda presumptive connecting factors for jurisdiction simpliciter (thetrialwarrior.com)
Baumgartner on “Understanding the Obstacles to the Recognition and Enforcement of U.S. Judgments Abroad”
January 23, 2013Samuel 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.
Syncrude Canada Ltd. v. Highland Consulting Group: A Reply to Ted Folkman
January 21, 2013
My blawging colleague, Ted Folkman over at Letters Blogatory has an informative post about Syncrude Canada Ltd. v. Highland Consulting Group, Inc. (D. Md. 2013) a recent Maryland District Court decision dealing with service of process under the Hague Service Convention [“Syncrude”].
In Syncrude, the Plaintiff, Syncrude Canada Ltd. (“Syncrude” or “Plaintiff”) brought an action pursuant to the Maryland Uniform Foreign Money-Judgment Recognition Act, Maryland Code, Courts and Judicial Proceedings, §§ 10-701 et seq. (“the Recognition Act”) against Defendants The Highland Consulting Group Inc. (“HCG”), High Energy Consultants, Inc. (“HEC”), and The Highland Group International GmbH (“HGI”) (collectively “the Highland Defendants”).
On July 26, 2011, Syncrude filed a breach of contract action against the Highland Defendants in the Court of Queen’s Bench of Alberta, Case Number 1103 1134 (“Canadian Litigation”). The Highland Defendants were served via registered mail at their respective principal offices pursuant to the Alberta Rules of Court and the Alberta Business Corporation Act. Bittner signed the return receipts acknowledging service for both Maryland Defendants on August 2, 2011. Raz Walter signed a return receipt on behalf of Highland Group International GmbH on August 3, 2011. (more…)
Antonin I. Pribetic
