Archive for the ‘private international law’ Category

Ted Folkman on “Two Modes of Comity”

June 7, 2013

Ted Folkman (Murphy & King, P.C., author of Letters Blogatory) has posted “Two Modes of Comity”, University of Pennsylvania Journal of International Law, p. 101, 2013. Here’s the abstract:

Some have suggested that US courts should not deny recognition and enforcement to foreign judgments on grounds of fraud or a denial of due process in the particular foreign proceeding, as long as the foreign judiciary is systematically adequate. This paper, based on remarks given at the University of Pennsylvania Journal of International Law’s Fall 2012 Symposium, evaluates that suggestion by considering the various kinds of comity that US courts accord to one another, in particular, the comity required by the Full Faith and Credit Clause and the comity a federal court gives to a state court in habeas corpus cases. It outlines the ways in which each of these two models of comity can be a model for US treatment of foreign court judgments, and it considers recent decisions in which US courts have shown a tendency to use a more deferential model of comity when considering whether to recognize foreign judgments.

Download a copy of the paper via SSRN here.

The Lawyers Weekly article discusses Ont. C.A. decision in Wang v. Lin

March 6, 2013

As a follow-up to my recent post on the Court of Appeal for Ontario decision in Wang v. Lin, I’m quoted in an article by Christopher Guly in the The Lawyers Weekly March 8-13 issue: “When family breakdown spans the globe, from China to Canada“.

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.

“Ordinary Residence” and “Habitual Residence” are the applicable jurisdictional tests in family law disputes, Ontario appeal court rules

January 24, 2013

The Court of Appeal for Ontario in Wang v. Lin, 2013 ONCA 33 (CanLII) has held that the presumptive factors in  Club Resorts Ltd. v. Van Breda2012 SCC 17 (CanLII), 2012 SCC 17, [2012] 1 S.C.R. 572 (S.C.C.) do not fit within the established statutory scheme for asserting jurisdiction in family law matters under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.); the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”); and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). Rather, “ordinary residence” and “habitual residence” (arguably, “presence-based jurisdiction”) are the applicable jurisdictional tests under the Divorce Act and the CLRA,respectively:

[46] Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Breda in the context of a tort case. The Supreme Court in Van Breda was clear that the list of presumptive factors it identified related to tort claims and issues associated with those claims, and that the list of presumptive connecting factors is not closed. At para. 91, the court directed that:

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 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 shared commitment to order, fairness and comity.

[47] While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA, respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.


Two New Scholarly Papers on the CISG

January 23, 2013

The following scholarly papers on the United Nations Convention on Contracts for the International Sale of Goods (CISG) may be of interest.

The first article is by Jan M. Smits (Maastricht University Faculty of Law – Maastricht European Private Law Institute (M-EPLI); University of Helsinki – Center of Excellence in Foundations of European Law and Polity) entitled “Problems of Uniform Sales Law – Why the CISG May Not Promote International Trade”, Maastricht Faculty of Law Working Paper No. 2013/1.  The abstract reads:

The United Nations Convention on Contracts for the International Sale of Goods (CISG) is the prime example of unification of private law at the global level. With over 75 contracting States that make up for an increasing number of the world’s largest economies, the CISG is usually seen as a big success. However, this assessment is largely based on how States perceive the advantages of the CISG. This contribution asks how other actors involved in the legal process (such as commercial parties, attorneys, in house-lawyers and courts) perceive the CISG. To this end, three persistent problems of the CISG are identified: its problematic uniform application by national and arbitral courts, its regular exclusion by parties, and its incompleteness. This calls for recognition that the establishment of a global uniform law is not the only possible way in which international trade can be promoted. It would be equally important to allow parties to make the national jurisdiction of their choice applicable to the contract. The value of the CISG then lies primarily in providing commercial parties with a common frame of reference, allowing them to compare the solutions of the CISG with various national jurisdictions and to act upon this.

The second article is by my colleague, Peter Mazzacano (Osgoode Hall Law School – York University) has published “The Treatment of CISG Article 79 in German Courts: Halting the Homeward Trend”, Nordic Journal of Commercial Law, Issue 2, 2012.  The abstract reads:

This article analyzes the treatment of CISG Article 79 by the German courts. Indeed, as one of the most prolific adjudicators of CISG jurisprudence, there now exists a critical mass of case law on Article 79 in Germany. The focus on a specific CISG provision by a specific jurisdiction wields invaluable information about the treatment of Article 79 by that signatory state. It finds that German courts have played a preeminent role in the interpretation of Article 79. In particular, German courts have generally eschewed the “homeward trend” that has plagued a number of other signatory states. This is an important development towards a conceptual goal of functional uniformity to which the CISG aspires. It also demonstrates that a specific CISG article — Article 79 — can stand alone as an autonomous international principle, without being charged with competing domestic principles. Article 79 has thus evolved — at least in Germany — into an autonomous international norm. This development suggests that Article 79 is capable of creating relative uniformity within the context of the CISG’s goal for a sales law that is truly transnational in design.

 Download a copy of  the Smits paper at SSRN here.

Download a copy of the Mazzacano paper at SSRN here.

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