Archive for the ‘choice of law’ Category

The Perils of Drafting Ineffective Forum Selection Clauses

May 31, 2013

Today’s decision of the Court of Appeal for Ontario in 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA 354 addresses issues pertaining to jurisdiction simpliciter, the effect of forum selection clauses and forum non conveniens. (more…)

Donald Earl Childress III, “Forum Conveniens: The Search for a Convenient Forum in Transnational Cases”

February 4, 2013

Donald Earl Childress III (Pepperdine University School of Law) has posted “Forum Conveniens: The Search for a Convenient Forum in Transnational Cases”, Virginia Journal of International Law, Vol. 53, No. 1, p. 157, 2012.  The abstract reads:

This Article examines the forum non conveniens doctrine as it is applied by federal courts and state courts in present-day transnational litigation. The Article also explores what happens when the doctrine is invoked in cases involving foreign sovereigns. The Article uncovers empirical evidence suggesting increased use of the forum non conveniens doctrine by courts. Unfortunately, this increased use does not come with clear standards for application. After considering the underlying rationales for the doctrine and whether they are effectuated by the current doctrine’s usage in transnational cases, the Article proposes a new series of rules and factors to be balanced by courts when asked to apply the doctrine.

 A PDF copy of the paper is available for download on SSRN here.

Laura E. Little, “Internet Defamation, Freedom of Expression, and the Lessons of Private International Law for the United States”

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.

Laura E. Little on “Internet Choice of Law Governance”

June 11, 2012

Laura E. Little (Temple University – James E. Beasley School of Law) has posted  “Internet Choice of Law Governance”, China Private International Law Forum, 2012/Temple University Legal Studies Research Paper Series No. 2012-20.  The abstract reads:

As society and legal institutions have become more accustomed to internet communications and transactions, some legal thinkers urge that existing approaches to governance developed outside the internet context are well suited for resolving internet choice of law issues. In this essay, Professor Little argues against this position, observing that internet disputes continue to pose unique choice of law problems and to call for special focus on developing appropriate governance rules. Professor Little finds evidence of this need for special focus in several phenomena, including: (1) the continuing tendency of courts to pursue unilateral decision-making despite multi-jurisdictional interests or global effects of internet disputes; and (2) the legal and cultural clashes that arise in disputes implicating freedom of expression. The internet plays a crucial role in developing new cultural and creative forms, such as fan fiction, mashups, scanlations, and various forms of humor. This raises the stakes of identifying appropriate regulatory forms for internet communication. Special study of internet choice of law problems has the potential to provide the United States with insight into other countries’ methods of crediting human dignity in regulating hate speech and defamation as well as to create greater understanding among nations.

Download a pdf copy of the paper via SSRN here.

Supreme Court of Canada Further Modifies Jurisdictional Test in Tort Actions

April 18, 2012

As I recently noted, the Supreme Court of Canada has released its judgments in an important conflict of laws trilogy. Here are the links to today’s SCC judgments:

1.  Club Resorts Ltd. v. Van Breda, 2012 SCC  17

2. Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18

3. Breeden v. Black, 2012 SCC 19

 The bottom-line is that the Van Breda test has been further modified as follows:

[90]                          To recap, in a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

(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; and

(d)      a contract connected with the dispute was made in the province.

(b)  Identifying New Presumptive Connecting Factors

[91]                          As I mentioned above, the list of presumptive connecting factors is not closed.  Over time, courts may identify new factors which also presumptively entitle a court to assume jurisdiction.  In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors.  Relevant considerations include:

(a)      Similarity of the connecting factor with the recognized presumptive connecting factors;

(b)      Treatment of the connecting factor in the case law;

(c)      Treatment of the connecting factor in statute law; and

(d)      Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.

 [100]                     To recap, to meet the common law real and substantial connection test, the party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum.  In these reasons, I have listed some presumptive connecting factors for tort claims.  This list is not exhaustive, however, and courts may, over time, identify additional presumptive factors.  The presumption of jurisdiction that arises where a recognized presumptive connecting factor — whether listed or new — exists is not irrebuttable.  The burden of rebutting it rests on the party challenging the assumption of jurisdiction.  If the court concludes that it lacks jurisdiction because none of the presumptive connecting factors exist or because the presumption of jurisdiction that flows from one of those factors has been rebutted, it must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine, which I need not address in these reasons.  If jurisdiction is established, the claim may proceed, subject to the court’s discretion to stay the proceedings on the basis of the doctrine of forum non conveniens.

With respect to the “New” Van Breda test as applied to defamation actions, in Breeden c. Black, the Supreme Court reaffirmed the presumptive factor of the republication of the alleged libel in Ontario:

[20]                          The issue of the assumption of jurisdiction is easily resolved in this case based on a presumptive connecting factor — the alleged commission of the tort of defamation in Ontario.  It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party.  In this case, publication occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers.  It is also well established that every repetition or republication of a defamatory statement constitutes a new publication.  The original author of the statement may be held liable for the republication where it was authorized by the author or where the republication is the natural and probable result of the original publication (R. E. Brown,The Law of Defamation in Canada (1987), vol. 1, at pp. 253-54).  In my view, the republication in the three newspapers of statements contained in press releases issued by the appellants clearly falls within the scope of this rule.  In the circumstances, the appellants have not displaced the presumption of jurisdiction that results from this connecting factor.

Finally, in  Éditions Écosociété Inc. v. Banro Corp., the Supreme Court while declining to decide the issue, suggests that “one possible alternative to the lex loci delicti as the choice of law rule in defamation cases may be the place of most substantial harm to reputation.”  Whether applying the lex loci delicti rule or the locus of the most substantial harm to reputation  the applicable law was that of Ontario and this factor favoured Ontario in the forum non conveniens analysis, as did the factor of juridical advantage.

I intend to provide more detailed analysis of these significant Supreme Court of Canada private international law decisions, time permitting this week.

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