Archive for the ‘impeachment defences’ Category

My New Paper: “Recognition and Enforcement of Foreign Judgments in Canada”

January 16, 2014

I’ll be speaking at the upcoming Ontario Bar Association Institute 2014, “Internationalizing Commercial Contracts” program and have prepared a paper entitled “Recognition and Enforcement of Foreign Judgments in Canada”. Here’s the abstract:

This paper provides an overview of the governing conflict of laws principles for the recognition or enforcement of foreign judgments, including an analysis of the recent Court of Appeal for Ontario decision in Yaiguaje et al. v. Chevron Corporation et al. and its implications for the recognition and enforcement of foreign judgments, generally. The issue of state immunity as an obstacle to foreign judgment enforcement is also considered.

A copy of the paper is available on SSRN here.

The Gloaming of International Human Rights in Canada?

November 1, 2012

I prevously blogged about  Bill C-10 (short title: Safe Streets and Communities Act), an omnibus criminal law statute, which received Royal Assent on March 13, 2012 —which includes the “Justice for Victims of Terrorism Act and to amend the State Immunity Act” ["JVTA"] —creating a specific cause of action for victims of terrorism, enabling them to sue for loss or damage as a result of actions punishable under the Criminal Code. This part also amends the State Immunity Act (“SIA”) lifting state immunity of foreign states that sponsor terrorism or terrorist activity, but does nothing to improve the prospects for access to justice to Canadian victims of torture and war crimes.

Recently, the Quebec Court of Appeal in Islamic Republic of Iran c. Hashemi, 2012 QCCA 1449 (CanLII) upheld state immunity for torture of Canadian citizens abroad. See my previous post here.

Today, the Supreme Court of Canada denied an application for leave to appeal in Association canadienne contre l’impunité v. Anvil Mining Limited (Québec C.A., January 24, 2012) (34733). The Canadian Centre for International Justice (CCIJ) issued a press release describing the Court’s decision denying leave as the “end of any judicial relief in Canada for victims of the Kilwa massacre”. The CCIJ adds: (more…)

SHN Grundstuecksverwaltungsgesellschaft MBH & Co. Seniorenresidenz Hoppegarten-Neuenhagen KG v. Hanne

October 30, 2012

I briefly blogged about the Alberta Court of Appeal decision in  Grundstuecksverwaltungsgesellschaft MBH v. Hanne last year, mostly because I found the style of cause amusingly long.

If you think that’s a tongue-twister, check out the subsequent decision in SHN Grundstuecksverwaltungsgesellschaft MBH & Co. Seniorenresidenz Hoppegarten-Neuenhagen KG v. Hanne, 2012 ABQB 624 (CanLII).

Incidentally, Madam Justice Erb of the Alberta Queen’s Bench ultimately rejected the defendant, Dr. Hanne’s impeachment defences of fraud, natural justice and public policy and held that the German judgment was enforceable in Alberta:

“In this summary trial, the Plaintiff SHN Grundstuecksverwaltungsgesellschaft MBH & Co. Seniorenresidenz Hoppegarten-Neuenhagen KG, also known as SHN Grundstücksverwaltungsgesellschaft MBH & Co. Seniorenresidenz Hoppegarten-Neuenhagen KG (“SHN”) seeks an Order for recognition and enforcement in Alberta of a judgment issued by the Berlin Regional Court of Germany against the Defendant Dr. Juergen Hanne, also known as Dr. Jürgen Hanne (“Dr. Hanne”).

[98]           I find that this action is appropriate for summary trial; viva voce evidence was not required for the proper hearing of the issues and the test for enforcement of foreign judgments in Alberta has been satisfied and the defences raised by Dr. Hanne are without merit.

Disposition

[99]           Accordingly, there will be an Order recognizing and enforcing the German judgment in Alberta in the total amount of the Canadian equivalent of —1,056,800.25 and interest thereon which includes:

(i) Judgment of the German Regional Court, dated November 11, 2002, for —1,022,583.70 plus interest;

(ii) the order for costs of the German Regional Court, dated November 29, 2002 (and the subsequent order for correction dated January 13, 2003) in the amount of  —21,582.25 and interest thereon; and

(iii) Costs Decision of the German Appeal Court, dated September 26, 2006, for —12, 634.30 and interest thereon.”

[100]      If the parties cannot agree with respect to the calculation of interest, they may seek an order within 30 days. Costs may be spoken to if necessary.

 And now…for a musical interlude….Tongue Tied by GroupLove:

UK Supreme Court Rejects Supreme Court of Canada’s Jurisdictional Test for Enforcing Foreign Judgments

October 30, 2012

The UK Supreme Court has rejected outright the Supreme Court of Canada’s “real and substantial connection” test for recognition and enforcement of foreign default judgments.

The UK decision in Rubin v. Eurofinance [2012] UKSC 46 arises from two appeals:  Rubin v Eurofinance SA (“Rubin”) and New Cap Reinsurance Corpn Ltd v Grant (“New Cap”), both dealing with the issue of whether an order or judgment of a foreign court (on these appeals the United States Bankruptcy Court for the Southern District of New York, and the New South Wales Supreme Court) in proceedings to adjust or set aside prior transactions, e.g, preferences or transactions at an undervalue (“avoidance proceedings”), will be recognised and enforced in England.

The appeals also address whether enforcement may be effected through the international assistance provisions of the UNCITRAL Model Law (implemented by the CrossBorder Insolvency Regulations 2006 (SI 2006/1030)  (“CBIR”)), which applies generally, or the assistance provisions of section 426 of the Insolvency Act 1986, which applies to a limited number of countries, including Australia.  (more…)

Guest Post at Letters Blogatory: Lago Agrio Plaintiffs Enforcement Action in Canada

June 5, 2012
Chevron Corporation

Chevron Corporation (Photo credit: Wikipedia)

For those interested in the Chevron/Ecuador case, I have written a guest post over at Letters Blogatory on the recent enforcement action filed by the Lago Agrio plaintiffs in Ontario:  Guest Post: Comments on the Lago Agrio Plaintiffs Enforcement Action in Canada.

Thanks again to Ted Folkman at Letters Blogatory for inviting me to guest blog on this important case.

 

 


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