Archive for the ‘Mocambique Rule’ Category

Ontario Court of Appeal declines to stay execution of foreign judgment pending appeal

April 7, 2011

The Court of Appeal for Ontario in Tiernan v. Dietrich, 2011 ONCA 263 has declined to stay execution of a foreign judgment pending appeal. The matter involves an action to enforce a judgment obtained in Michigan against the defendant, a former Michigan attorney. (more…)

Perry Herzfeld on "Fraudulent alienation of foreign immovables and the Mocambique rule in the Western Australian Court of Appeal"

January 20, 2010
International litigators and conflict of laws scholars may be interested in a recent blog post by Perry Herzfeld over at Conflictoflaws.net entitled: “Fraudulent alienation of foreign immovables and the Moçambique rule in the Western Australian Court of Appeal”. Here is a brief excerpt:

“Singh v Singh (2009) 253 ALR 575; [2009] WASCA 53, in the Western Australian Court of Appeal, was a dispute between two brothers, both resident in Western Australia. One, the plaintiff, claimed that the alienation by the other, the defendant, of real estate in Malaysia was made with the intent to defraud creditors, within the meaning of s 89(1) of the Property Law Act 1969 (WA). (That section is the modern equivalent in Western Australia of the Elizabethan statute 13 Eliz c 5, which has been reproduced in all Australian states and the Commonwealth.)…”

 

For additional analysis on the Mocambique Rule, see my previous post here.

Perry Herzfeld on Mareva orders over foreign land in the Supreme Court of Victoria (via conflictoflaws.net)

September 18, 2009
Perry Herzfeld on conflictoflaws.net discusses the recent Supreme Court of Victoria decision in Talacko v Talacko [2009] VSC 349, involving a Mareva-type order, restraining the defendants from disposing of properties in the Czech Republic, Slovakia and Germany in  pending prroceedings before the Austrialian court. Here is a brief excerpt:
 
“…The plaintiffs sought Mareva-type orders against Jan Talacko and his sons, restraining them from disposing of the properties and directing them to take steps to withdraw any documents which had been filed to register the gifts of the properties. Kyrou J’s judgment contains a useful summary of the considerations relevant to making Mareva orders over foreign land (at [35]):

(a) Provided that the defendant is subject to this Court’s jurisdiction, this Court has power to make a Mareva order in respect of foreign assets and there is no rule of practice against granting such an injunction.
 
(b) Whether the assets were in the jurisdiction at the time the proceeding was commenced, or indeed have ever been within the jurisdiction, does not affect whether the court has jurisdiction to make a Mareva order or its practice in relation to such orders. However, it may be relevant to the exercise of the discretion.

(c) It has been said that the discretion to make a Mareva order in respect of foreign assets should be exercised with considerable circumspection and care. The suggestion in one Australian case that the jurisdiction should only be exercised in ‘exceptional cases’, which appears to broadly reflect the English position, has not been followed consistently in the Australian cases dealing with the exercise of discretion. With respect, I do not accept that the discretion can only be exercised in exceptional cases. …

(d) The discretion will be exercised more readily after judgment.

His Honour noted (at [36]) that these ‘principles have, in broad terms, also been applied in relation to mandatory injunctions requiring parties to do acts with an overseas element’. It is worth noting that his Honour also observed that the claim against Jan Talacko fell outside the Mocambique rule, being based on breach of terms of settlement arising from allegations of breach of contract, trust and fiduciary duty…”.

See also, my article: Staking Claims Against Foreign Defendants in Canada: Choice of Law and Jurisdiction Issues Arising from the in Personam Exception to the Mocambique Rule for Foreign Immovables (2009) 35 Adv. Q. 230 (the downloadable SSRN version is a pre-publication draft, but the published version is available on Quicklaw).

Staking Claims Against Foreign Defendants in Canada-Advocates’ Quarterly article

August 26, 2009
For blog readers with an interest in conflict of laws, I have another article on SSRN entitled: Staking Claims Against Foreign Defendants in Canada: Choice of Law and Jurisdiction Issues Arising from the in Personam Exception to the Mocambique Rule for Foreign Immovables (2009) 35 Adv. Q. 230 (the downloadable version is a pre-publication draft, but the published version is available on Quicklaw).

Here is the abstract:

Canadian courts have struggled in distinguishing between in personam jurisdiction and subject-matter jurisdiction (and specifically the Mocambique rule). In particular, they appear to overlook the two-fold jurisdictional requirement that in order to proceed in a given case they must have both types of jurisdiction – in personam and subject-matter – and that when jurisdictional challenges arise due to the fact that the dispute deals with foreign immovables Canadian courts, influenced by the post-Morguard focus on in personam jurisdiction, are dealing with the foreign land question under the rubric of in personam jurisdiction, not under the traditional heading of subject-matter jurisdiction. Part of the problem stems from a judicial preference to apply the Mocambique rule as exclusively a legal rule, while allowing for the in personam exception as a corollary to the “real and substantial connection” test and the Muscutt factors. Professor McLeod’s four pre-requisites for the in personam exception from his seminal text “The Conflict of Laws” remain a relevant doctrinal basis for establishing jurisdiction simpliciter over foreign defendants in claims involving foreign immovables. While Professor McLeod was writing about the four pre-requisites for the in personam exception in 1983, his doctrinal approach remains relevant for determining subject-matter jurisdiction over claims involving foreign immovables.

However, since Professor McLeod’s first pre-requisite only addresses presence-based and consent-based jurisdiction, the court’s have sometimes resorted to the Muscutt factors to assume jurisdiction over property-based claims, which offend the Mocambique rule. The Muscutt factors for assuming jurisdiction should be limited to traditional non-property claims in lieu of service-based or consent-based jurisdiction. The process of characterization is ultimately discretionary. However, the determination of jurisdiction simpliciter is not.

Part I introduces the key components of judicial jurisdiction in the context of Canadian private international law. Part II provides an overview of the nature and scope of the in personam exception. Part III considers the utility of the real and substantial connection test by analyzing the in personam exception through the prism of recent Canadian case law where jurisdictional challenges raised relating to claims involving foreign real property led to divergent results. In Part IV, I conclude by proposing a three-factored test for jurisdiction simpliciter, which integrates the in personam exception in respect of foreign immovables


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