Archive for the ‘forum of necessity’ Category

Tanya J. Monestier, “Jurisdiction and the Enforcement of Foreign Judgments”

January 16, 2014

Tanya J. Monestier (Roger Williams University School of Law) has published “Jurisdiction and the Enforcement of Foreign Judgments”, The Advocates’ Quarterly, Vol. 42, p. 107, 2013/ Roger Williams Univ. Legal Studies Paper No. 143. Here’s the abstract:

In April 2012, the Supreme Court of Canada released its decision in what has become the pivotal case on personal jurisdiction in Canada, Van Breda v. Club Resorts Ltd. In Van Breda, the Court laid out a new framework for, and defined more precisely the content of, the “real and substantial connection” test that governs the assertion of jurisdiction over ex juris defendants. Specifically, the Court created four presumptive connecting factors that courts are to use in jurisdictional determinations. The presumptive connecting factors approach to jurisdiction was intended to increase certainty and predictability in jurisdictional determinations.

One issue that was alluded to, but ultimately left unanswered, by the Supreme Court in Van Breda was what effect the new presumptive factors framework for the real and substantial connection test had on the enforcement of judgments. Since the Supreme Court’s seminal decision in Morguard Investments Ltd. v. De Savoye in 1990, it is well established law that the real and substantial connection test for jurisdiction simpliciter is intended to be “correlated” with the real and substantial connection test used as a predicate for enforcing foreign judgments. Does this mean that courts are now supposed to use the new Van Breda framework for jurisdiction simpliciter in the judgment enforcement context? This article argues that the real and substantial connection framework established by the Court in Van Breda for jurisdiction simpliciter should not be exported outside of the particular context in which it was developed. The Van Breda approach to jurisdiction simpliciter, although seemingly straightforward, is actually a blunt tool for assessing jurisdiction – and any concerns with its application would only be magnified if applied to the enforcement of foreign judgments.

A copy of the article is available at SSRN here.

SCOTUS rejects extraterritorial application of ATS in Kiobel v. Royal Dutch Petroleum Co.

April 17, 2013

The U.S. Supreme Court today released a significant decision on personal jurisdiction in Kiobel v. Royal Dutch Petroleum Co. (No. 10–1491, slip opinion: link). (backgrounder here and here).

The Court unanimously denied the appeal. (more…)

Here Today, Guatemala: HudBay Minerals withdraws forum non conveniens motion in Canadian international human rights case

February 26, 2013

Photo of Angelica Choc, Adolfo Ich Chamán’s widow. (Dec. 1, 2010) Original image via

Jeff Gray at the Globe & Mail, reports on three pending cases involving HudBay Minerals Inc. [“HudBay”] brought by Mayan Q’eqchi’ individuals from Guatemala, who have alleged human rights abuses were committed against them by the subsidiaries of Canadian mining companies. The Guatemalan victims claim that security guards employed by HudBay’s subsidiary at a Guatemalan mine shot and killed one man, shot and beat another and gang-raped 11 women. According to the story, HudBay has withdrawn its motion to stay the action on forum non conveniens grounds, which plaintiffs’ counsel describes as a “breakthrough”:

[Plaintiffs’ counsel] Mr. Klippenstein is pursuing a $55-million claim in Ontario Superior Court over clashes in 2009 between local Mayan people opposing the mine and security and police allegedly acting on behalf of HudBay’s former local subsidiary. HudBay, which sold its interest in the mine in 2011, denies the allegations, saying they are “without merit.”

HudBay had been preparing to argue that the case should be heard in Guatemala, not Canada, on jurisdictional grounds – an argument that Mr. Klippenstein was expected to counter by pointing to well-documented problems with the small Latin American country’s justice system.

But Mr. Klippenstein claims the company abruptly changed its strategy after hearing depositions from his clients, who flew to Toronto from Guatelmala in December.

The Globe & Mail article adds:

“Contrary to Mr. Klippenstein’s statement, HudBay’s voluntary decision to have the cases heard in the Ontario Superior Court was based on its desire to avoid the complications of trying the cases in Guatemala, particularly in terms of time and travel,” HudBay John Vincic, HudBay’s vice-president of investor relations and corporate communications, said in an e-mail.

“Our decision does not create precedent or change the law in any way. Based on the cross-examinations referred to by Mr. Klippenstein, HudBay is increasingly confident the cases are without merit and will be favourably resolved on the merits in Ontario.”

Recently, Madam Justice Carol J. Brown granted Amnesty International intervenor status in Choc v. Hudbay Minerals Inc. et al., 2013 ONSC 998 (CanLII). Carol J. Brown, J.  concludes:

[12]           I am satisfied that Amnesty has discharged its onus to establish that its presence can assist the court in determining certain of the issues in the motions, and in bringing to the attention of the court considerations of an international nature regarding the issues in play in these cases. I am satisfied that it can bring a perspective different from that of the parties, particularly given its expertise in the areas of international human rights abuse, international and transnational business accountability, and as a result of its involvement in and consultation with the UN Special Representative on the Issue of Human Rights and Transnational Corporations. Given that Amnesty International will not be involved in any of the evidentiary or factual aspects of the cases, I do not find that intervention by Amnesty will cause undue disruption or delay in the motions. Given that Amnesty will only be involved in providing a different view with respect to the legal considerations to be had in determining the issues in the motions, there will be no opportunity for it to use these motions as a “political platform” as argued by the defendants. While the actions involve private disputes, namely actions involving individuals and an international Corporation, with operations in the plaintiffs’ home state, the issues involved have international, transnational and public policy overlays which make them appropriate for intervention by Amnesty, which, I find, can make a useful legal contribution.

[13]           Considering the issues raised in the pleadings, the nature of the three cases, and the nature of the interventions sought to be made by Amnesty, I grant leave to Amnesty to intervene. The intervention will be limited strictly to making submissions with respect to the issues of law, and particularly international law, standards and norms concerning the existence or scope of the duty of care.

The timing of the withdrawal of HudBay’s forum non conveniens motion is intriguing; but it may also have something to do with focusing arguments around ‘reverse veil piercing’ raised in Chevron/Lago Agrio enforcement proceedings in Ontario and elsewhere. Nevertheless, the defendants’ Rule 21 motion to dismiss the claims against them as disclosing no reasonable cause of action will proceed on March 4 and 5, 2013.

Stay tuned.

Chilenye Nwapi, “Litigating extraterritorial corporate crimes in Canadian courts”

September 26, 2012

Chilenye Nwapi  (D. Phil. Candidate, University of British Columbia, Faculty of Graduate Studies (Law)) has published a doctoral thesis entitled: Litigating extraterritorial corporate crimes in Canadian courts [PDF] (September 2012). The abstract reads:

This study investigates whether and how Canadian courts may assume jurisdiction (both criminal and civil) over extraterritorial crimes/wrongs committed by Canadian corporations operating overseas. It examines the current state of international law to see whether there is any international legal rule prohibiting a state from assuming jurisdiction over conduct occurring outside its territory. It finds that no such positive rule is in existence, whether in customary international law or in treaty law, and that the only concern is the likelihood of diplomatic protests by states which believe that the jurisdiction sought to be assumed is a threat to their territorial integrity. It argues that although the type of jurisdiction envisaged in this study is not widespread among states, the absence of widespread state practice is not tantamount to prohibition, at least in principle. The study then looks at the Canadian domestic jurisdictional bases, both criminal and civil. On the criminal front, it finds that the real and substantial link test has enough flexibility to reach the extraterritorial conduct of Canadian corporations and that the expansion of the substantive bases of corporate criminal liability that occurred in Canada in 2003 bolstered the criminal jurisdiction of Canadian courts over extraterritorial corporate crimes. On the civil front, it finds that Canadian courts may assume extraterritorial jurisdiction under three distinct theories: the real and substantial connection test, necessity jurisdiction and the recently enacted Torture Victims Protection Act. It examines the bases for declining jurisdiction under the doctrine of forum non conveniens and calls for a reformulation of the doctrine to require a Canadian court to decline jurisdiction only when it finds that it is a “clearly inappropriate” forum, in contrast to the current rule that requires the existence of a “clearly more appropriate alternative” forum. The question of choosing the applicable law in tort cases is also interrogated. A call is made for the adoption of a rule that considers the nature of the conduct in litigation as an important element in the determination of the applicable law. On the whole, this study concludes that Canada holds prospects for transnational litigation.




My New Article in the Canadian International Lawyer

October 21, 2011

I have published a new article in the latest issue of the Canadian Bar Association’s Canadian International Lawyer journal entitled, “Adjudicating International Human Rights Claims in Canada”, (2011), 8(3) Cdn. Int. Lawyer 117-133. Here is the abstract:

This article addresses the issue of the privatization of justice and whether a social contract model is appropriate in disputes affecting the public interest, if one accepts the premise that international human rights claims fall under the rubric of “public order” or public interest. The article then explores the implications of promoting a social contract model for advancing and adjudicating international human rights claims in Canada against corporate and state actors, both from the perspective of litigation and arbitration. It concludes with an overview of recent federal legislative reforms relating to state-sponsored terrorism and international human rights standards.

A pdf copy of the article is available for download here.

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