Posts Tagged ‘Jurisdiction’
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.
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Tags:Fordham International Law Journal, Jurisdiction, Lawsuit, Supreme Court
Posted in Adjudicative Jurisdiction, assumed jurisdiction, Charron Estate, civil jurisdiction, Civil Litigation, civil procedure, forum non conveniens, International, international commercial litigation, international dispute resolution, international law, international litigation, jurisdiction, jurisdiction simpliciter, personal jurisdiction, subject-matter jurisdiction, Supreme Court of Canada, Tanya J. Monestier, Territorial Jurisdiction, Van Breda, Van Breda v. Village Resorts Ltd. | Leave a Comment »
February 26, 2013
Court of Appeal window (Photo credit: lancea)
The Court of Appeal for Ontario in Zhang v. Hua Hai Li Steel Pipe Co. Ltd., 2013 ONCA 103 (CanLII), has reaffirmed that jurisdiction simpliciter is established by presence-based jurisdiction and consent-based jurisdiction (delivery of a Statement of Defence and other merit-based steps constitute attornment):
[5] In our view, the appeal should be dismissed but for reasons different from those given by the motion judge.
[6] This is not a jurisdictional case. The respondents live and were served in Ontario and the Ontario courts accordingly have jurisdiction. It is also significant that before the respondents brought the motion challenging the jurisdiction of the court, the appellants filed a statement of defence and took other steps in connection with the action. Even if the appellants had not been served within Ontario, they have attorned to the jurisdiction.
[7] The forum non conveniens issue is not relevant.
[8] We see no merit in this appeal and it is therefore dismissed.
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Tags:Appeal, Canada, Court of Appeal, Court of Appeal for Ontario, Jurisdiction, Ontario
Posted in attornment, consent-based jurisdiction, International, international commercial litigation, international debt recovery, international dispute resolution, international law, jurisdiction, jurisdiction simpliciter, presence-based jurisdiction, Rules of Civil Procedure | Leave a Comment »
January 10, 2013
Elizabeth F. Judge (University of Ottawa – Faculty of Law (Common Law)) has posted “Curious Judge: Judicial Notice of Facts, Independent Judicial Research, and the Impact of the Internet”, Annual Review of Civil Litigation, pp. 325-350, Honourable Mr. Justice Todd L. Archibald Superior Court of Justice (Ontario) and the Late Honourable Mr. Justice Randall Scott Echlin, eds., 2012. The abstract reads:
Judicial notice allows uncontroversial facts to be established without evidentiary proof. The facts must either themselves be beyond dispute because they are “notorious” (that is, generally known within the community) or they must be able to be referenced in easily accessed sources whose accuracy is beyond dispute. Judicial notice is an especially vexing topic because it goes to the heart of the epistemological inquiry of the adversarial process and the nature of the judicial function. Judicial notice implicates the allocation of responsibilities for fact finding between the parties and the court, between the judge and the jury, between the court of first instance and the appellate bodies, and between the courts and the legislature; how fact finders engage in ordinary reasoning processes to decide what a fact is; the distinction between adjudicative and legislative facts and their respective roles; and due process concerns for one or both parties. The rules governing judicially noticed facts are especially sensitive because whenever a fact is judicially noticed it is not subject to the ordinary processes for testing evidence, such as oaths and cross examination, and thus the rules implicate concerns about fairness to the parties and accuracy. For a common law precedential system, these concerns are particularly acute.
Drawing on American and Commonwealth commentators, this article provides a detailed analysis of the general theory and policy of judicial notice and the role of judicial notice in the adversarial system. The article then turns to a discussion of the practice of independent judicial research and an examination of the impact of the internet on judicial notice. The article analyses the laws and policies governing judicial notice of facts and independent judicial research in Canada and the Supreme Court of Canada’s legal framework. It examines independent judicial research and, most pertinently for modern practices of judicial notice, appropriate uses of internet search tools and online sources in the context of judicial notice. It considers how the internet is affecting key aspects pertaining to the judicial notice of facts: first, what “notoriety” and “community” mean; and second, what counts as an authoritative reference. The paper concludes by addressing how the internet, including search engines and online content, may affect the traditional framework for judicial notice of facts.
A copy of the paper is available for download via SSRN here.
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Tags:Canada, Civil procedure, Internet, Judges, Judicial Notice, Jurisdiction, Law, Social media
Posted in Civil Litigation, courts, Courts of Justice Act, evidence, internet, internet law, Judge, judging, judgments, judicial decision-making, judicial discretion, judicial notice, procedural rights, procedure, Procedure vs. Substance, social media | Leave a Comment »
December 19, 2012
Laura E. Little (Temple University – James E. Beasley School of Law) has published “Internet Defamation, Freedom of Expression, and the Lessons of Private International Law for the United States”, European Yearbook of Private International Law, Vol. 14, 2012. The abstract reads:
This article reviews current developments in U.S. conflict of laws doctrine pertaining to transnational internet defamation cases, including personal jurisdiction, choice of law, and recognition of judgments. To resolve personal jurisdiction and choice of law issues in internet defamation cases, U.S. courts have adapted rules from the non-internet context with relative ease. Reported cases tend to concern domestic internet disputes between U.S. entities, with few plaintiffs attracted to U.S. courts for the purpose of litigating cross-border defamation claims. Although the U.S. serves as a magnet jurisdiction for many types of litigation, two liability-defeating laws render the country inhospitable to defamation claims: (1) the U.S. Constitution’s First Amendment speech protections and (2) a statute affording immunity to internet “providers or users” for information “provided by another content provider.” Perhaps because of these provisions litigants are largely inspired to go elsewhere. The resulting libel tourism has prompted important U.S. developments pertaining to enforcement and recognition of foreign defamation judgments. Thus, for conflict of laws matters pertaining to internet defamation, it is judgments law that reflects the greatest activity and most profound change.
After reviewing personal jurisdiction and choice of law trends, this article describes legal developments pertaining to internet defamation judgments. The article critiques lawmakers’ adherence to First Amendment exceptionalism in regulating internet defamation judgments and identifies flaws reflected in state libel tourism statutes and the federal libel tourism statute, the SPEECH act of 2010.
Download the article via SSRN here.
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Tags:Conflict of Laws, Defamation, First Amendment to the United States Constitution, Freedom of speech, International law, Jurisdiction, United States
Posted in choice of forum, choice of law, conflict of laws, cyberlibel, defamation, Defamation Law, enforcement, First Amendment, foreign judgments, foreign plaintiffs, international law, internet, internet defamation, internet jurisdiction, internet law, libel, Libel Chill, Libel Tourism, libel tourist, personal jurisdiction, private international law, public policy, SPEECH Act | Leave a Comment »
September 28, 2012
Thiago B. Jardim Oliveira (University of Geneva – Department of Public International Law; Graduate Institute of International and Development Studies (HEI)) has posted a working paper entitled “The Authority of Domestic Courts in Adjudicating International Investment Disputes: Beyond the Distinction between Treaty and Contract Claims”. The abstract reads:
While it is widely acknowledged that international tribunals may, depending on their jurisdictional entitlements, entertain treaty claims as well as claims arising out of breaches of contract, the exercise of jurisdiction by domestic courts has generally been deemed to be limited to matters of national law. What is more, domestic adjudication has generally been considered without consequence for the outcome of a number of international proceedings. However, is deference to international dispute settlement mechanisms really compatible with dispute settlement clauses contained in investment treaties and contractual agreements that foresee a role to be played by domestic courts? The answer attempted by this paper is in the negative. On the one hand, the identity of a legal dispute within the jurisdiction of different forums is not dependent on the cause of action that might be invoked, nor is the distinction between contract claims and treaty claims one that necessarily justifies the existence of two wholly separate layers of legal obligations. This may be illustrated through an assessment of how international jurisdictional entitlements exist and interact with specific dispute settlement clauses contained in contracts and treaties. On the other hand, where a distinction based on the causes of action might exist, municipal courts that deal strictly with matters of domestic law ought not to be deprived of influence on the outcome of international proceedings. In this regard, an analysis of the consequences for international tribunals of adjudication by municipal courts over derivative claims and investment disputes in general will be of avail.
Download a copy of the working paper at SSRN here.
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Tags:International law, Jurisdiction, Law, Public international law
Posted in International, international arbitration, international dispute resolution, international investment, international law, International trade, jurisdiction, public international law | Leave a Comment »
Antonin I. Pribetic
