Archive for the ‘subject-matter jurisdiction’ Category

Ontario appeal court allows appeal, lifts stay in Yaiguaje v. Chevron Corp.

December 17, 2013

Chevron Corporation

The Court of Appeal for Ontario has just released its judgment in Yaiguaje v. Chevron Corporation, 2013 ONCA 758; (“Yaiguaje“) a significant conflict of laws decision which will have major repercussions beyond cross-border and international litigation.

For a backgrounder, see Alejandro Manevich’s guest post: Lago Agrio comes to Ontario: Chevron and the $19B judgment and also my guest posts: The Motions to Dismiss inYaiguaje, and Comments on the Lago Agrio Plaintiffs Enforcement Action in Canada over at Ted Folkman’s Letters Blogatory.

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Why Lawyers Should Always Read the Footnotes in Judgments

June 12, 2013

The decision of Justice Newbould in Re Ghana Gold Corporation2013 ONSC 3284 (Ont. SCJ) ["Ghana Gold"] is an important reminder to always the read the footnotes in judgments. (more…)

Tanya J. Monestier, “(Still) a ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada”

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.

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…)

The Supreme Court of Canada Conflict of Laws Trilogy: Part II

April 23, 2012

This is the second of a two-part series of posts on the recent Canadian conflict of laws trilogy in Club Resorts Ltd. v. Van Breda, 2012 SCC  17 (“Van Breda”); Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 (“Banro”) and Breeden v. Black, 2012 SCC 19. (“Black”).

In Part II,  I discuss the implications of the Banro and Black decisions from the perspective of internet defamation, choice of law and forum shopping/libel tourism. (more…)


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