Archive for the ‘United Kingdom’ Category
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…)
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Tags:Canada, Court of Appeal, Insolvency Act 1986, New South Wales Supreme Court, Supreme Court of Canada, Supreme Court of the United Kingdom, United States Bankruptcy Court
Posted in assumed jurisdiction, Beals v. Saldanha, comity, conflict of laws, consent-based jurisdiction, impeachment defences, in personam jurisdiction, judgments, presence-based jurisdiction, private international law, real and substantial connection, subject-matter jurisdiction, Supreme Court of Canada, Supreme Court of the United Kingdom, UK Supreme Court, UKSC, United Kingdom, Van Breda, Van Breda v. Village Resorts Ltd. | 1 Comment »
September 28, 2012
Lili Levi (University of Miami – School of Law) has published “The Problem of Trans-National Libel”, American Journal of Comparative Law, Vol. LX, No. 2, Spring 2012/ University of Miami Legal Studies Research Paper No. 2012-25. Here’s the abstract:
Forum shopping in trans-national libel cases “libel tourism” has a chilling effect on journalism) academic scholarship) and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legislatively. In 2070) the United States passed the SPEECH Act) which prohibits recognition and enforcement of libel judgments from jurisdictions applying law less speech-protective than the First Amendment. In Britain) consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. This Article questions the extent to which the SPEECH Act and the Draft Defamation Bill will accomplish their stated aims. The SPEECH Act provides little protection for hard-hitting investigative and accountability journalism by professional news organizations with global assets. The proposed British bill has important substantive limits. Moreover) even if Parliament approves reform legislation discouraging libel tourism) such actions may shift to other claimant-friendly jurisdictions. Global harmonization of libel law is neither realistic nor desirable. Instead this Article proposes a two-fold approach. On the legal front, it supports the liberalizations of Britain’s proposed libel reform legislation and calls for foreign courts) when assessing the significance of contacts to the forum in cases affecting the United States) to consider seriously the importance of extensive First Amendment protections for political speech to the American concept of democracy. In addition) the Article calls for voluntary initiatives such as: 1) new approaches to help defend trans-national defamation claims when they are brought; and 2) measures to reduce the number of trans-national libel cases by improving the way in which the press does its job. The defense measures explored include the development of community-funded (rather than media-supported) libel defense funds; the formation of pro bono libel review consortia; and alternative approaches to increasing the availability of libel insurance. The recommended press-improvement measures include expanded access to documents, as well as the enhancement of accountability measures such as best-practices education, journalistic self-criticism, and updated codes of conduct.
A copy of the article is available for download via SSRN here.
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Tags:Britain, Defamation, Government, Law, Libel tourism, Philippine, United Nations Human Rights Committee, United States
Posted in cyberlaw, cyberlibel, cyberspace, defamation, Defamation Act 2011, Defamation Law, First Amendment, free speech, Freedom of expression, freedom of speech, internet, internet defamation, internet jurisdiction, internet law, Internet Service Providers, libel, Libel Tourism, libel tourist, SPEECH Act, Transnational, Transnational Law, transnational litigation, United Kingdom, United States | Leave a Comment »
July 12, 2012
The Convention between Canada and the United Kingdom For The Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, 1984, [the "Convention"] [1] [2] applies to judgments rendered by the Federal Court of Canada and all reciprocating common law provinces and territories. In Ontario, the Convention is called the Reciprocal Enforcement of Judgments (U.K.) Act, RSO 1990, c R.6 ["REJUKA"] which is the only bi-lateral enforcement convention to which Ontario is a party. REJUKA does not apply to the following types of orders or judgments:
(a) orders for the periodic payment of maintenance;
(b) the recovery of taxes, duties or charges of a like nature or the recovery of a fine or penalty;
(c) judgments given on appeal from decisions of tribunals other than courts;
(d) judgments which determine
(i) the status or legal capacity of natural persons;
(ii) custody or guardianship of infants;
(iii) matrimonial matters;
(iv) succession to or the administration of the estates of deceased persons;
(v) bankruptcy, insolvency or the winding up of companies or other legal persons;
(vi) the management of the affairs of a person not capable of managing his own affairs.
REJUKA provides for a “simple and rapid” procedure for registration of the UK judgment, without having to commence a civil action on the original debt. Article IV sets out the various grounds for refusal or setting aside registration of the UK judgment. Article V deals with establishing jurisdiction of the UK court in granting the original UK judgment.
The relative ease of enforcing UK judgments under REJUKA is highlighted in the Court of Appeal for Ontario decision in Tarlo Lyons v. Gauthier, 2012 ONCA 39 (CanLII) (S.C.C. application for leave to appeal denied, (34723) , July 12, 2012). The appeal panel’s brief endorsement reads: (more…)
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Tags:Appeal, Canada, Court of Appeal, Court of Appeal for Ontario, Default judgment, Natural justice, Ontario, Ontario Court of Appeal
Posted in international litigation, private international law, conflict of laws, recognition, enforcement, recognition and enforcement, international debt recovery, United Kingdom, English law, international law, England and Wales, natural justice, international commercial litigation, England and Wales High Court | 1 Comment »
September 21, 2011
New York: E. T. Paull Music Co., 1897.
“Mandatory professional indemnity insurance & a mandatory insurer: A global perspective“, an article by Jennifer Ip (LAWPRO unit director and counsel (Litigation)) and Nora Rock, (LAWPRO corporate/policy writer), in the current issue of LAWPRO Magazine, is required reading for Canadian international law practitioners. The authors provide a comprehensive review of the recent malpractice crisis in the UK and a summary of professional errors & omissions insurance coverage in various jurisdictions.
The LAWPRO magazine also includes a Table summarizing Professional Indemnity Insurance Requirements Around The World. [available here (pdf)]
While many common-law jurisdictions (e.g. United Kingdom, Australia, Hong Kong and Singapore) and most continental European civil law jurisdictions have mandatory professional indemnity insurance coverage requirements, some do not.
The most glaring exception is the United States:
Oregon is currently the only state that requires lawyers to carry liability insurance.
Oregon lawyers must purchase their primary insurance through the Oregon bar’s Professional Liability Fund.19 In an article for Law Practice TODAY, the newsletter of the Law Practice Management section of the American Bar Association, law practice management expert, Ed Poll praised the Oregon program for its affordable premiums and universal coverage, noting that the premiums paid by Oregon lawyers “are much less than the nationwide average [voluntary] payment for malpractice insurance,” and that universal coverage in Oregon means that “[t]he playing field between large and small firms is at least manageable. And the public is truly protected.”20 Jeff Crawford of the Oregon bar’s Professional Liability Fund confirmed that the base premium for the current insurance year is $3,500 (for coverage of $300,000 per claim and $300,000 in the aggregate, plus a defence costs allowance of $50,000), a premium amount that, he notes, “if you consider inflation, has remained quite stable over the past several years.”
The upshot is that a “Google search” of a foreign lawyer’s website, law blog or asking for a “Twitter recommendation” is simply not good enough and the shortest path to a “negligent referral” claim. Due diligence requires that you not only evaluate the foreign lawyer’s credentials diligently (including local bar association status, disciplinary records, etc.), you must also request confirmation from the foreign lawyer whether he or she carries voluntary E&O insurance with sufficient minimum limits.
Forewarned is forearmed.
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Tags:Business, cross-border litigation, errors & omissions insurance, Hong Kong, Insurance, Law Practice Management, LawPro, lawyer malpractice, negligent referral, Oregon, professional indemnity insurance, professional liability, Professional liability insurance, professional negligence, United States
Posted in England and Wales, international arbitration, international commercial arbitration, international law, international litigation, United Kingdom, United States | Leave a Comment »
June 13, 2011
Fergal F. Davis (ARC Laureate Fellowship: Anti-terror laws & the democratic challenge; University of New South Wales (UNSW)) has posted “Lord Neuberger and the Diceyean Bushel” . The abstract reads:
On 6 April 2011, Lord Neuberger, the Master of the Rolls, delivered the second Lord Alexander of Weedon Lecture. In it he revisited the awkward tension which exists between the “notion of supremacy of the democratically elected legislature and the rule of law”. While the topic approached is one of controversy, the learned Master of the Rolls adopted a position which is essentially orthodox – namely that Parliament remains supreme despite membership of the European Union, the existence of the European Court of Human Rights at Strasbourg and the Human Rights Act, 1998 (HRA). To describe Lord Neuberger’s position as orthodox is not intended to be a criticism. His suspicion of judicial supremacy is welcome and equally agreeable is his statement against judicial passivism. However, two problems emerge: firstly, the contention that Parliament remains supreme is difficult to sustain once it is subjected to anything beyond the most formal level of analysis; secondly, and more importantly, by returning to the orthodox Diceyean perspective he risks stifling potentially significant constitutional innovation contained within the HRA. This article will argue that the orthodox position advanced by Lord Neuberger needs to be set aside and a position equally respectful of the democratic legitimacy of Parliament, but more conscious of the role of the courts in contentious areas, should be adopted.
The article is available for download on SSRN here.
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Tags:David Neuberger Baron Neuberger of Abbotsbury, European Court of Human Rights, European Union, Human Rights Act 1998, Lord Neuberger, Master of the Rolls, Robert Alexander Baron Alexander of Weedon, Strasbourg
Posted in democracy, Parliament, Parliamentary Sovereignty, Rule of Law, United Kingdom | 1 Comment »
Antonin I. Pribetic
