Table of Contents: - LSA - AED :: Accueillsa.mcgill.ca/pubdocs/files/privateinternationallaw/288... · Web viewNo bar exam, although big exam at the end of law school Traditional

Private International Law: N. American Litigation. Winter 2007, Patrick Glenn

TABLE OF CONTENTS1.0 LEGAL PROFESSIONS.......................................................................................................5

1.1.1 What is Private International Law......................................................................................................51.1.2 The legal profession.......................................................................................................................... 51.1.3 Legal ethics & lawyer mobility............................................................................................................6

1.1.3.1 Glenn Comments........................................................................................................................ 61.1.3.2 CBA, Québec & Ontario Codes of Ethics: professional incompatibility.......................................81.1.3.3 Disparity in ethical rules among U.S.A. states (S. Felleman)......................................................81.1.3.4 Modern malpractice suits against lawyers in U.S.A. (J. Dzienkowski)........................................81.1.3.5 U.S.A. sources of ethical rules & discipline (M. Bolocan)...........................................................81.1.3.6 Martin v. Gray (1990, S.C.C.).....................................................................................................81.1.3.7 Firms cautious with ethical rules (A. Margolis)............................................................................91.1.3.8 Law Society of Alberta v. Black et al. (1989, S.C.C.)..................................................................91.1.3.9 Lawyer Mobility (P. Glenn)........................................................................................................101.1.3.10 Mexican legal education and profession (S. Zamora)...........................................................10

2.0 COSTS & FEES.................................................................................................................102.1.1.1 Glenn Comments: cost rules, contingency fees, class action fees, security for fees................102.1.1.2 Fees limits and Torquemada rule.............................................................................................122.1.1.3 Re Solicitors (1972, finst Ontario).............................................................................................122.1.1.4 The American Rule (R. Marcus)...............................................................................................122.1.1.5 Client-Attorney Arbitration (J. Dzienkowski)..............................................................................13

3.0 COURT STRUCTURES.....................................................................................................133.1.1 General : Rationae Materiae (comments by Glenn)........................................................................133.1.2 Canadian Court Structure................................................................................................................14

3.1.2.1 Judicial Appointments (J. Ziegel)..............................................................................................143.1.2.2 A.G. Canada v. Law Society of B.C. (1982) extract..................................................................143.1.2.3 Québec North Shore Paper v. Canadian Pacific Ltd. (1976, S.C.C.)........................................143.1.2.4 Glenn Comments : Canada......................................................................................................15

3.1.3 U.S.A. Court Structure.....................................................................................................................153.1.3.1 Court System in the U.S.A. (L. Newman & D. Zaslowsky)........................................................153.1.3.2 Procedure in the U.S.A.............................................................................................................163.1.3.3 Erie Railroad Co. v. Tompkins (1938, US C.A.)........................................................................163.1.3.4 Glenn Comments: U.S.A. federal courts...................................................................................16

3.1.4 Mexican Court Structure.................................................................................................................. 173.1.4.1 Mexican Court System (S. Bayitch & J. Siqueiros)...................................................................173.1.4.2 Mexican writ of Amparo (H. Zamudio)......................................................................................173.1.4.3 Glenn comments: Mexico.........................................................................................................18

4.0 TERRITORIAL JURISD'N & FOREIGN JGMTS................................................................184.1 Domestic Jurisdiction.........................................................................................................................18

4.1.1 Territorial Jurisdiction in the U.S.A. and Canada.............................................................................184.1.1.1 Generalities : Canada...............................................................................................................184.1.1.2 Generalities : U.S.A..................................................................................................................194.1.1.3 Territorial jurisdiction from the perspective of the π: arguing for the forum...............................194.1.1.4 Territorial Jurisdiction from the perspective of the Δ: contesting foreign forum.........................204.1.1.5 Vile v. von Wendt (1979, Ontario, Dominion Law Reports).......................................................214.1.1.6 Moran v. Pyle National (Canada) Ltd (1973, S.C.C. from Saskatchewan.)...............................214.1.1.7 Hughes Communications Inc. v. Spar Aerospace Ltd. (2002, S.C.C. from Qué)......................214.1.1.8 Wabaso Ltd. v. National Drying Machinery Co. (1981, S.C.C. from Québec)...........................224.1.1.9 Tortel Communication Inc. .. v. Suntel Inc. (1994, finst Manitoba)............................................224.1.1.10 U.S.A. v. International Brotherhood of Teamsters (1996, N.Y. district court)........................23

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4.1.1.11 Asahi Metal Industry Co. v. Superior Court of California (1987, U.S. Supreme Court).........234.1.1.12 Colorado's very "long arms" (O. Whiting).............................................................................244.1.1.13 Piper Aircraft Co. v. Reyo (1981, U.S. Supreme Court)........................................................244.1.1.14 Amchem Products Inc. v. British Columbia (1993, S.C.C.)...................................................24

4.1.2 Territorial Jurisdiction in Mexico......................................................................................................244.1.2.1 Mexico: recognition of jgmts & territorial jurisdiction (Bayitch & Siqueiros)...............................244.1.2.2 More on territorial jurisdiction in Mexico (J. Herget & J. Camil).................................................254.1.2.3 Jurisdiction over parties in Mexico (S. Zamora)........................................................................254.1.2.4 Glenn comments on Mexico.....................................................................................................25

4.2 Recognition of Foreign Judgments...................................................................................................254.2.1 Foreign Judgments in Canada.........................................................................................................25

4.2.1.1 Glenn comments on CmL Canada............................................................................................254.2.1.2 Glenn Comments on Québec (from classmate notes)..............................................................264.2.1.3 De Savoye v. Morguard Investments Ltd. (1990, S.C.C.).........................................................284.2.1.4 Hunt v. Lac d'Amiante du Québec Ltée (1993, S.C.C.).............................................................29

4.2.2 Foreign Judgments in the U.S.A......................................................................................................294.2.2.1 Glenn Comments (from classmate notes)................................................................................294.2.2.2 Enforcement of foreign jgmts in the U.S.A. (R. Brand).............................................................29

4.2.3 Foreign Judgments in Mexico..........................................................................................................304.2.3.1 Glenn comments (from classmate notes).................................................................................304.2.3.2 Enforcement of Foreign Judgments in Mexico (M. Lubrano & H. Mueller)................................304.2.3.3 Enforcement of Judgments in Mexico (S. Zamora)...................................................................30

4.3 Class Actions: Jurisdiction & Choice of Law....................................................................................304.3.1.1 Recognition of foreign class-action jgmts in U.S.A. & Canada (C. Jones & A. Baxter).............304.3.1.2 National Class Actions in the U.S.A. (J. Feldman)....................................................................314.3.1.3 Successful class actions (from "Appellate Spotlight," November 2006)....................................314.3.1.4 Glenn Comments...................................................................................................................... 31

5.0 PRE-JUDGMENT REMEDIES...........................................................................................335.1.1.1 Pre-Judgment Remedies in Federal Canada (Glenn)...............................................................335.1.1.2 Anton Piller KG v. Manufacturing Processes Ltd. (1975, HL)...................................................335.1.1.3 Anton Piller v. ordinary measures in pre-trial discovery (A. Rock)............................................335.1.1.4 Attachment of domestic assets belonging to foreign parties: U.S.A. (G. Berman)....................345.1.1.5 Grupo Mexicano de Desarrollo v. Alliance Bond Fund Inc. (1999, U.S.A. Supreme Court)......345.1.1.6 Attachment of Assets in Mexico (S. Zamora)............................................................................345.1.1.7 Glenn comments: Anton Piller, Attachment & Mareva Injunctions............................................35

6.0 PLEADING & DISCOVERY...............................................................................................356.1.1 Civil Procedures of the U.S.A., Canada and Mexico.......................................................................36

6.1.1.1 Allan et. al. v. New Mount Sinai Hospital et. al. (1981, Ontario C.A.)........................................366.1.1.2 Allarco Broadcasting Ltd. et. al. v. Duke et. al. (1981, B.C. finst)..............................................366.1.1.3 Soke Farm Equipment v. New Holland of Canada Ltd. (1990, Sask. C.A.)..............................366.1.1.4 Rule 8 of U.S.A. Federal Rules of Civil Procedure (FRCP)......................................................366.1.1.5 Notice versus Fact Pleading (R. Miller).....................................................................................366.1.1.6 Nagel v. Pocono Medical Center (1996, U.S.A. district court)..................................................376.1.1.7 Rule 26 of FRCP (U.S.A.).........................................................................................................376.1.1.8 Mexican Civil Procedure (Herget & Camil)...............................................................................376.1.1.9 Glenn Comments...................................................................................................................... 37

6.1.2 Harmonization of the civil procedures for trans-national litigation....................................................386.1.2.1 International judicial assistance................................................................................................38

7.0 THE ROLE OF FOREIGN LAW.........................................................................................397.1.1 Proof and Use of Foreign Law.........................................................................................................39

7.1.1.1 Québec Law: C.C.Q. articles....................................................................................................397.1.1.2 Foreign Law in English Courts (Fentiman)................................................................................40

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7.1.1.3 Rule 44.1 of the U.S.A. Federal Rules of Civil Procedure.........................................................407.1.1.4 Reception of Foreign Law in the U.S.A. Federal Courts (Justice R. Miner)..............................407.1.1.5 Foreign Law in Mexican courts (S. Zamora).............................................................................407.1.1.6 Glenn comments: proof of foreign law......................................................................................41

7.1.2 Application of foreign law: optional v. d'office..................................................................................427.1.2.1 Civil Law................................................................................................................................... 427.1.2.2 Common Law............................................................................................................................ 42

8.0 DIRECT REGULATION OF FOREIGN ACTIVITY.............................................................428.1.1.1 Citizenship Act (Federal, 1985).................................................................................................428.1.1.2 Aliens' Real Property Act (Ontario)...........................................................................................428.1.1.3 Morgan v. AG Prince Edward Island (1975, S.C.C.).................................................................438.1.1.4 Canada Act 1982, s. 6..............................................................................................................438.1.1.5 Law Society of Upper Canada v. Skapinker (1984, S.C.C.)......................................................438.1.1.6 Alien Landownership in the U.S.A. (J. Fletcher).......................................................................448.1.1.7 Globalization & Dispute resolution – extracts (H.P. Glenn).......................................................448.1.1.8 Glenn Comments...................................................................................................................... 44

9.0 CHOICE OF LAW : HISTORY & METHODOLOGY..........................................................459.1 History.................................................................................................................................................. 45

9.1.1.1 History of PIL in France, 1827 (Merlin).....................................................................................459.1.1.2 History of PIL in UK (A. Sack)...................................................................................................459.1.1.3 Glenn Comments on History.....................................................................................................46

9.2 Methodology........................................................................................................................................ 469.2.1 Introduction...................................................................................................................................... 469.2.2 Theories on Private International Law.............................................................................................47

9.2.2.1 Treatise on Conflict of Laws (Coquille).....................................................................................479.2.2.2 Treatise on Conflict of Laws (Savigny).....................................................................................479.2.2.3 Determining the reach of laws (Pillet).......................................................................................479.2.2.4 French PIL (Francescakis)........................................................................................................479.2.2.5 Better model of PIL (B. Currie)..................................................................................................479.2.2.6 Choice of Law in Mexico (S. Zamora).......................................................................................479.2.2.7 Glenn comments on the theories..............................................................................................489.2.2.8 Choice of Law à la Savigny: the Québec example....................................................................489.2.2.9 Renvoi of domicile: selection of substantive law.......................................................................49

10.0DOMICILE.........................................................................................................................4910.1.1.1 Trottier v. Rajotte (19??, Québec C.A.)................................................................................4910.1.1.2 Fedeluk v. Fedeluk (1968, Alberta C.A.)...............................................................................4910.1.1.3 Udny v. Udny (1968, HL in UK)............................................................................................5010.1.1.4 The Family Law Act (1986)...................................................................................................5010.1.1.5 Glenn Comments................................................................................................................. 50

11.0TORT & DELICT – CHOICE OF LAW...............................................................................5111.1.1.1 Jensen v. Tolofson, Lucas v. Gagnon (1994, S.C.C.)...........................................................5111.1.1.2 New York choice of law in tort actions..................................................................................5111.1.1.3 IPCO v. The Queen in right of Manitoba (1975, S.C.C.).......................................................5211.1.1.4 Miller v. White (1997, District Court, Vermont).....................................................................5211.1.1.5 Québec's no-fault automobile insurance..............................................................................52

11.1.2 Choice of law in tort and delict : rules, direct regulation & Constitution...........................................5311.1.2.1 Choice of law rules...............................................................................................................5311.1.2.2 Direct Regulation.................................................................................................................. 5311.1.2.3 Constitution.......................................................................................................................... 5311.1.2.4 Additional Points...................................................................................................................54

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12.0CONTRACT – CHOICE OF LAW......................................................................................5412.1.1.1 Conflict of laws: Mexico and U.S.A. (Bayitch & Siqueiros)...................................................5412.1.1.2 Vita Food Products v. Unus Shipping Co. (1939, C.A., Nova Scotia)...................................5512.1.1.3 Lauritzen v. Larsen (1953, Circuit Court, U.S.A.).................................................................5512.1.1.4 R. v. Thomas Equipment Ltd. (1979, S.C.C.).......................................................................5512.1.1.5 Automatic Systems v. Bracknell Corp. (1994, C.A., Ontario)................................................5612.1.1.6 Choice of law in Contracts....................................................................................................5612.1.1.7 K-ual choice of law in specific jurisdictions...........................................................................5612.1.1.8 K governed by "people's law" – no choice of law clause......................................................57

13.0SECURITY ON MOVABLE PROPERTY...........................................................................5813.1.1.1 Reid v. Favor (1955, SC, Québec).......................................................................................5813.1.1.2 Personal Property Security Act (Ontario, 1990)....................................................................5813.1.1.3 Glenn Comments................................................................................................................. 59

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1.0 LEGAL PROFESSIONS1.1.1 What is Private International Law Private international is: (i) choice of jurisdiction (2) choice of law [1] Choice of jurisdiction is NOT choice of law. Selection of forum = whether to decide a case, not how to decide a case,

or according to which procedural law. We are talking about the threshold, le seuil, according to which forum is recognized or not.

o also, recognizing foreign jgmts or not – e.g. American obscenely large jury-made awards (e.g. $6M) [2] Choice of law:

o using choice-of-law rules or methods (of interpretation) o applying law foreign law application, need foreign law experts

1.1.2 The legal professionControl/Obligation intermediate Libertarian/individualized Questions

law school Canada: 4 years of undergrad + 3L + 1 year of articling & bar school (except Québec – law school after Cégep)

U.S.A. : 4 years of undergrad + 3L

Mexico: 4-5L (no bar exam or articling) – least obligations

qualification of a lawyer (1)

profession European model that creates incompatibility btw professionsQuébec: avocat v. notaire (can't do both at the same time. This incompatibility has been enforced by courts – un avocat can't do things a notaire does)Canada: divided profession (barrister & solicitor) in practice onlyQuébec avocats can do a lot.

U.S.A. : barrister v. solicitor distinction exists, but formally a "unified" profession - attorney can do a lot.1

Mexico: clear distinction btw advocates & notaries. But advocate in Mexico can do a lot

what activities do these professionals engage in ? (2)

Bar Canada: lawyers have monopoly to practice

Mexico, Russia (no need to be a member of a bar to practice, existing bars don't really regulate profession)

Professional Liability

all partners share liability in Canada, Mexico, U.S.A.

U.S.A. & Canada: LLP available – limited liability partnership, a new form of practice coming from legislation. Only the personal assets of other partners are protected – the assets of Δ-partner and assets of partnership are not. French: société en nom commun à résponsabilité limitée. No LLP in Mexico

has a firm been liable for professional fault? Has a firm been under disciplinary measures?

Insurance Canada has obligatory insurance

U.S.A. : insurance is very optional. Legislation obliges American lawyers to disclose presence/absence of insurance

Are you insured? (3)

1. Law school matters. In Mexico, there are 500 law schools, many of which are private, for-profit schools. They are not necessarily good. Large public universities have professors who practice law full-time 9-5 and teach outside of

1 In Louisiana, there are "notaries" which are not equivalent to "notaires." They are simply commissioners of oaths5


those hours (7am - 9am and 5pm – 8 pm). The teaching is very poor : professors read from books instead of lecturing. This is important when choosing a lawyer in Mexico

2. Indication of corruption: some Mexican law firms ask candidates whether they have any relatives in the government or on the bench. Also: know the precise functions of professions such as "notary."

3. In Québec, because notaries are separate (they deal with real estate), the avocats pay very little insurance. In Ontario, insurance is much higher. Vast number of lawyers in Mexico are not insured. Damage awards in Mexico are extremely low compared to Canada & U.S.A. Even injury and death awards are miniscule – they are based on daily wage. Glenn's car insurance would be for $40K maximum. Recourse against a firm could be satisfied primarily with its assets – that's why it's better to deal with large firms in Mexico city.

1.1.3 Legal ethics & lawyer mobility Internal rules (e.g. C.c.Q.) choice of law rule + interpretation Spatially conditioned internal rules (e.g. no one can buy more than 25% of shares of federal bank – neither Canadians, nor

any other nationals) rule of public order. So these are internal rules that are given specific application Direct regulation of foreign activity (material private int'l law). E.g. foreigners may purchase up to 10% of beach-side

property… "Material" because it provides substantive answer, not just a formula to choose a lawo Mobility of lawyers : we are concerned with [1] and [3]

1.1.3.1 Glenn CommentsControlled Intermediate Libertarian Questions

Mobility : internal (within a country)

Canada, most restrictive. Lawyers must be members of provincial bars

U.S.A. : practice in another state by a simple motion. No barriers: in many states the bar exams are similar. For permanent transfer, "equivalences" (probably something very easy, since bar exams are so close)

Mexico : lawyers can practice anywhere in Mexico (guaranteed by Constitution)

Mobility: external

Mexico : most resistance to NAFTA mobility. Developing countries fear sophisticated foreign lawyers sweeping their practice

Canada : foreign legal consultant – available to North Americans within N. America. Québec prohibits splitting income with non-Québec bar members. Canada has spasms of resistance, but the bars are not very effective at it.

U.S.A. Seems to be completely open to foreign firms (e.g. Stikeman, Tories practice in New York)

where can you represent me ? (due diligence question)

Discipline Canada : bar fees (to finance a disciplinary office – a very heavy one), obligatory insurance. CBA code is "virtue ethics" – not what to do, but "who you are" as a lawyer. In addition, institutions that prosecute for failing to comply with (vague !) codal provisions. Courts upheld vague ethical std's – ethics can't be clear by definition

U.S.A. Legalization of ethics – virtue ethics are inadequate, lawyers need guidance (not just say 'you have to comply with professional integrity', but what this integrity is). Move toward very detailed rules, enforced by courts (not bar institutions). Some courts delegate this authority to agency, some don't (depends on the state)

Mexico: very few lawyers are members of the bar. Bars are simply agencies that promote legal education, welfare, etc. – but no disciplinary authority.

what are the practices of your firm (apply stricter rules than professional ethics?) What are the mechanisms to ensure that a firm actually adheres to its standards? (e.g. Clifford Chance has 45 lawyers working just on that)

Practice unit

Mexico: does not allow multi-disciplinary firms

U.S.A. – some states allow, some don't

Canada: allows MDF (multi-disciplinary firms)

is the firm multi-disciplinary (crucial

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in Ontario & Québec, with the requirement that lawyers control the firms. Lawyers cannot be subject to control by other professions. Like with LLP, Canada is libertarian in this sense, but control-freak in others

for privileged information and conflicts of interest – can't sue an accountant using services of your lawyer if the accountant is a partner with the lawyer)

Conflicts of interest & lawyers

U.S.A. & Canada. Shared professional circumstances in our country & U.S.A. State will interfere at the mere possibility of conflict (cf. probability).

Mexico : no disciplining for conflict of interest. Maybe no need to worry? (their firms are not as large). No rules to adhere to high std of conduct (i.e. not to violate loyalty and interest)

control mechanisms against conflicts of interest ?Will you act against my client in the future ? If you will, with or without client's consent ? This is not about choice of law, but ethics of a lawyer. The rules will always be of jurisdiction where the suit is brought. Choice of law only applies to discipline – never about disqualification.

National Mobility Agreement (Canada) now gives members of signatory bars 100-day right to practice in these provinces. Québec signed up but hasn't implemented it yet (and notaries, of course, are not included since they are not lawyers). The article in the material (about '20 days and cases') is outdated. Ignore that information.

Mobility: no specific rules, just interpretations Choice of law re: discipline – home or host jurisdiction's law governing law practice. E.g. a B.C. lawyer moves to Ontario

for the winter and pisses off clients in B.C. Which disciplinary rules govern this lawyer? P. 11 of CB, footnote 19: choice of law rule – jurisdiction where there was effect of misbehaviour.

o Glenn: Canadian bar associations will probably not use choice of law rules. They will probably engage in collaboration ("either you act, or we will"). Reasonable question: what does geography have to do with ethics? Big firms don't play the geography games with ethics (p 26-7 CB) – they abide by the stricter of several ethical rules if they deal in different jurisdictions.

o Clifford Chance has 45 lawyers dealing just with the ethical questions (on discipline and conflicts) Partnerships exist in Canada, U.S.A. and Mexico. Multi-disciplinary firms (e.g. lawyers & accountants) don't need to

identify the disciplines in their names. Glenn: investigate MDF with great vigour ! Horizontal mobility (going to another firm) happens a lot. If this happens in the course of a case and the firms are

representing the opposing sides, there is potential conflict of interest. Arbitrators are the same. Most firms do something about conflict of interest. In Canada some provinces issue guidelines re: setting up Chinese

walls. But this doesn't guarantee that the firm will not be disqualified. U.S.A. states refused to issue guidelines re: Chinese walls, cones of silence. Latest question: acting against a current client. In Europe – duty of internal loyalty (if you have acted for someone, you never act against them). In Canada & U.S.A. you may act against former client on an unrelated matter. But the current client, given the size of a firm ? (e.g. a lawyer from a different branch of a large law firm acting against a client in an unrelated matter). Some say it should be possible with consent of the client. Good essay topic.

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1.1.3.2 CBA, Québec & Ontario Codes of Ethics: professional incompatibility Québec prohibits lawyers from being JJ, police officers, stenographers in court, investigators Ontario prohibits carrying out any other profession that may "impair the exercise of the lawyer's independent jgmt on

behalf of clients" CBA is not concerned with purely private or extra-professional activities of a lawyer, as long as they do not bring into

question the integrity of the legal profession or the lawyer's professional integrity or competence

1.1.3.3 Disparity in ethical rules among U.S.A. states (S. Felleman) Modern trend in law firms: engage in professional activities in multiple jurisdictions which have different ethical rules In the U.S.A. ethical codes are not uniform because each state was free to adopt the ABA Code (1964) selectively. In response, ABA published Model Rules of Professional Conduct (1983), which again were not uniformly well received.

Currently most states follow a version of the Rules, and very few follow the Codeo Glenn: states adopt the voluntary rules created by the ABA at their discretion, and then "legalize" them – i.e.

they will be enforced by courts. In many U.S.A. states membership of the bar is not obligatory. Only courts discipline lawyers. By moving into a different jurisdiction, a lawyer is subjected to new ethical laws.

1.1.3.4 Modern malpractice suits against lawyers in U.S.A. (J. Dzienkowski) Malpractice liability has been widened against lawyers. Limitation period now runs from the time when the client found

out, or should have found out, about lawyer's malpractice; 3rd parties can claim against lawyers (contrary to the privity rule!), as can successors in interest to the client.

Changes in insurance due to increased malpractice litigation: some areas of practice are excluded from routine coverage, as well as errors and omissions in non-legal role. Some insurance co.'s deduct the amount spent on (subrogated) defence litigation from the coverage amount.

Earlier, senior partners would often blame junior associates for malpractice, then fire them and escape sanctions. The new Model Rules now impose responsibility on lawyers who supervise or has knowledge of subordinate lawyer's misconduct. The subordinate lawyer will not be responsible if he identifies an ethical issue, brings it to attention of the supervising lawyer and acts under the latter's direction.

o Some states rejected this fearing that senior partners would be sued in vicarious liabilityo Clever π clients will use the Model Rules to bypass LLP limitations

LLP version of a firm prevents vicarious claims ("a partner in a registered LLP is not liable, either directly or indirectly, by way of indemnification, contribution, assessment or otherwise, for debts, obligations and liabilities of or chargeable to the partnership arising from negligence, wrongful acts or misconduct, whether characterized as tort, K or otherwise, committed ….by another partner or an employee, agent or representative of the partnership"); but many statutes say that supervising partners are still liable for negligence of supervised lawyer

Some law firms distribute assets from partner to partner every month. This may not save them, as courts may simply uphold a regular distribution of assets.

It becomes difficult when an LLP firm has branches in different jurisdictions, some of which do not recognize LLP. Π's will certainly choose to sue in non-LLP jurisdictions, and "it is likely that state & federal courts will be asked to override legislative jgmt in favour of the fiduciary duty that lawyers owe clients"

1.1.3.5 U.S.A. sources of ethical rules & discipline (M. Bolocan) In each U.S.A. state, licensing authority is the judicial branch of the state's government. In each state there are institutions that assist lawyers with questions on ethics in particular situations – opinions carry no

legal authority, but are regarded as valuable sources. E.g. "Restatement of the Law Governing Lawyers" (by American Law Institute) is likely to influence courts and disciplinary authorities in interpretation of rules of lawyer conduct.

State supreme courts discipline lawyers of their jurisdiction – they often delegate authority to disciplinary agencies.

1.1.3.6 Martin v. Gray (1990, S.C.C.)Facts π is a client who hired the services of firm A. Dangerfield, who worked in firm A during her articles and as

junior counsel, was actively engaged in π's case. Then Dangerfield transferred to firm B, the Δ, who represented π's opponent. Dangerfield was not involved in B's litigation. The π wants a declaration that disqualifies firm B from representing his opponent.

Holding firm disqualified. Std for disqualification: see belowReasons If mergers and horizontal movement of lawyers were considered not to cause conflicts of interest (to

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facilitate such actions), the integrity of the profession would suffer an unacceptably serious blow CBA code states that a lawyer cannot represent both sides in a conflict. This is a statement of public

policy that must be accepted. In the U.S.A. (cf. England), a mere possibility (cf. probability) of conflict of interest suffices for

disqualification (but there must be "substantial relationship" between the matter out of which the confidential info arises and present matter for which disqualification is sought). However, it can be rebutted through "Chinese walls" or "cones of silence."

For Canada, "substantial relationship" test is too rigid. Once it is shown that there existed a relationship that is sufficiently related to matter for which disqualification is sought, conflict of interest must be inferred, unless the lawyer satisfies the court that no information has been passed from previous relationship – all that, without disclosing the actual confidential information.

A lawyer who actually has confidential information him or herself is automatically disqualified. No assurances or undertakings will suffice.

If a lawyer, whose disqualification is sought, is a partner of the lawyer who has confidential information, it is unrealistic in modern times to conclude immediately the passage of information – it's an "overkill." However, until governing bodies approve measures of preventing spread of information (such as Chinese walls) this conclusion must be drawn, unless there is strong and clear evidence to the contrary.

Case at bar: Dangerfield actively worked on the case, so she has confidential info. There is no persuasive evidence that this information did not pass to her new partners at the Δ firm.

Gonthier Agrees that π wins, but disagrees that lawyers can disprove passing of information from "tainted" members of the firm to the others: opportunities to do so are innumerable, and no one will ever know about it – the presumption must be irrebuttable.

Public confidence in legal profession is much more important than mergers, horizontal movement, etc. Anyway, protecting mergers and movers benefits mostly large firms, not the majority of CAD firms

1.1.3.7 Firms cautious with ethical rules (A. Margolis) Clifford Chance takes no risks. It has 2 offices with a total of 45 lawyers working just on ethical rules. Whenever there is

disparity, it abides by the stricter of the rules. In Switzerland, acting against former clients is unthinkable, and in fact illegal. In the U.S.A. some clients draw up detailed agreements about when they become "former clients" (i.e. when their former

firms can represent their opponents). There a lawyer can only act against former client if there is no "substantial connection" between this matter and the past matter.

Barristers (in England) work together but not in a partnership. Rules re: conflict of interest do not apply to them. There are discussions about cases, though, so conflicts of interest are possible. But barristers usually inform their clients and use Chinese wall.

1.1.3.8 Law Society of Alberta v. Black et al. (1989, S.C.C.)Facts a law firm in Alberta consisted of partners belonging to the Alberta bar, some of whom resided in Ontario. There

were 2 law firms in the two provinces with the same partners. Alberta law society enacted rules that prohibited partnership with lawyers not ordinarily residing in Alberta (rule 154) and partnership in more than one firm.

Holding 6.2.b Charter violated. (freedom of movement & gaining of livelihood)Reasons The rules make it impossible to practice law in Alberta without living there. Interprovincial firms are

rendered unfeasible. This is completely disproportionate to any objectives sought There is no evidence, anyway, that local expertise will be diminished – that non-local lawyers have less

expertise. The Alberta Law Society's rules on insurance for non-residents prevent any problems related to malpractice. Also, "the Law Society can define appropriate ethical requirements for its members and discipline lawyers wherever they reside."

1.1.3.9 Lawyer Mobility (P. Glenn) Through Andrews v. Law Society of B.C. the requirement of citizenship was eliminated. Now certain provinces changed

their provisions to only require "permanent residence," some eliminated or never adopted citizenship/permanent residency requirement, and Newfoundland requires only residency anywhere in Canada.

NAFTA requires elimination of citizenship requirement and requirement to maintain an office in the territory of a state

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Permanent transfer into another province currently requires (i) good character (ii) passing bar exam (iii) any additional time of articling which has not been met in the home province. For non-Canadians, law school courses/entire program may be required.

Temporary mobility among provinces implementing the "National Mobility Agreement" – practice for 100 days (section 7 under Mobility Without Permit). Permanent mobility, according to the agreement, may be done without bar exams.

Foreign consultants may practice with the condition of residence in Canada. They are heavily regulated (3 years of practice in home jurisdiction required, limited to practicing law of home jurisdiction, compliance with disciplinary regime, insurance, etc.)

Inter-jurisdictional firms are allowed (case above), but entirely foreign firms are mostly disallowed (including forming partnership with foreign firms – except in Québec). Interjurisdictional firms are subject to the courts of jurisdictions within which they practice. Judicial surveillance includes: malpractice, conflicts of interests and costs awarded against lawyers implicated in litigation.

o Interesting case (Re Manville Canada Inc. and Ladner Downs, 1993): a Vancouver firm represented π's in an asbestos litigation. The Van firm had international partnership with an Ontario partnership, which has done corporate work for Δ's in the litigation. BC court held that the structure of such a partnership left little opportunity/need to transmit information - a reasonable person would be satisfied that no info had passed btw the firms

1.1.3.10 Mexican legal education and profession (S. Zamora) Number of law schools in Mexico has risen dramatically, and private schools are taking larger and larger percentage of the

total Licensing is automatic if there's a law diploma from an accredited institution. No bar exam, although big exam at the end

of law school Traditional Mexican curriculum is interdisciplinary (politics, economics, social studies) There exist attorneys and notaries (who combine counselling and drafting with maintaining official records of important

legal documents) Citizenship requirement eliminated (for foreigners who wish to practice Mexican law in Mexico) after NAFTA. Lots of

U.S.A. firms rushed there or established relations with Mexican firms. No set of ethical regulations for governing the profession – rather general civil & criminal provisions enforced by court.

Federal Civil Code prohibits conflict of interest, for example. Malpractice suits are extremely rare. Overwhelming number of small partnerships Lawyer fees not regulated Mexican bar membership is not obligatory, and doesn't have disciplinary role. However, it does have a duty to inform of

civil & criminal violations of lawyers to the appropriate authorities. It's also authorized to arbitrate disputes btw clients & lawyers, collaborate in development of law school curricula

2.0 COSTS & FEES2.1.1.1 Glenn Comments: cost rules, contingency fees, class action fees, security for fees "Forum shopping" by π's 16 Asian countries (India, China, etc.) are forming a free trade agreement (let's call it "AFTA"). Lawyers may rejoice,

since harmonization will be that much better. Financing a litigation is a major consideration, especially if damages have punitive or deterrent functions (major

disincentive to sue). What to consider:o Lawyer feeso Law of K (since a lawyer & client agree on fees through a K, and some have choice of law clauses. Very rarely

though, jurisdictions renounce their own law of client compensation in favour of foreign law) Costs are always and exclusively determined by the judiciary (allocation & amount). General rule: the loser bears the

costs. Costs are always governed by lex fori (law of courts that decide on the matter). Generally also, foreigners are looked at with suspicion since they don't have assets in the host country. Host country may have security for costs rules ('caution' en français)

o New ALI/UNIDROIT (adopts the best and avoids the worst of the CvL & CmL fori for the common market) : costs: (32.1) – each party pays its own attorney fees. S. 32.3 the winning party ordinary ordinarily should be

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awarded reasonable costs. S. 32.9: security of costs may be required to uphold justice… security should not be required solely because the party is not domiciled in the forum.

Cost rules of N. America are different in each of 3 countries.o The simplest rule is in the U.S.A. : no shifting of costs. So as not to deter people from litigating. Exception: π's

who sue successfully and sue for public interest reasons (e.g. sue violators of civil R's, environmental polluters) get their costs paid by the Δ and it's a one-way cost rule (i.e. for the benefit of π, and never the Δ). U.S.A. therefore does not conform to ALI/UNIDROIT, and probably will not in the future

o Canada CmL adheres to the general rule of 'losers pay.' Maybe even with excessive degree of enthusiasm, as in England & Wales. Cost tariffs are regularly updated (party/party costs – partial indemnity (say, 50%) for costs and lawyer fees, or solicitor/client costs – full indemnity (only if behaviour is abusive – in all jurisdiction in Canada), i.e. 100% for costs and lawyer fees.

o Québec: 477 CPP: the loser shall pay the costs unless the court decides otherwise. The burden of costs is sometimes reduced (as opposed to reversed) to relieve a party, so as not to deter important cases. A smaller percentage of lawyer fees payable by the loser (about 30%) So Québec is almost as non-conforming to UNIDROIT as the U.S.A. is.

o Mexico: cost-shifting rules in the Federal Civil Code of Procedure only for enumerated cases. Such cases are more frequent than U.S.A. exceptions: party who has engaged in bad faith or abused procedural R's (could be the winner as well as the loser), and commercial disputes for recovering money from liquidated companies necessarily have cost-shifting rules

SN: in arbitration, there is no cost-shifting In Europe, the rule of cost-shifting is consistent everywhere (same as no security for costs for

foreigners) Fee control: in the U.S.A. no judicial control of fees unless a client refuses to pay, his lawyer sues him. So by defending

himself, the client contests the fee. Movement toward arbitrating fees between lawyer & client. In Canada, Québec solution is obligatory arbitration. In CmL Canada, "taxation of fees" – lawyer's bill may be simply and quickly reviewed by an officer of court. In Mexico, optional arbitration

o Taxation of fees: same mechanism as taxation of costs. Contingent fees. In CvL traditionally they were outlawed: the purchase of a share of proceedings by a court officer (a

lawyer) in a litigation was prohibited: 1783 C.c.Q ("no judge, advocate, notary or officer of justice may acquire litigious rights, on pain of absolute nullity of the sale"). Traditional justification: this will affect jgmt of the officer. But in Québec this provision is not observed in practice. A very good example of doing something that is done in CmL, ignoring civilian rules. In Mexico contingent fees are also prohibited (2276 Federal Civil Code). In Mexico the rule is also avoided, through wordplay (contingent fees explained as deferral of fees, rather than purchase of R to proceeds before the litigation is started) – Glenn: wordplay is totally unconvincing, but at least Mexico tries!

o Critics: it does not ensure access to justice, since no lawyer will take a case unless it's a "fee-generating case." Instead, it provides more money to lawyers – more than they would have earned through hour-based fees. Proponents: risky cases are taken (with greater % taken if won), and the client pays nothing at the end. The lawyer, not the client, takes the risk. The lawyer will be liable for costs in case of loss, in cost-shifting jurisdictions – so it doesn't work as well in Canada as it does in the U.S.A.

o In the U.S.A. there is no process of taxation of fees (N.B. "fees" is the money that a client pays to his lawyer. They are not shifted. Taxation of fees is a review initiated by a client who is outraged with his own lawyer's exorbitant charges). In Canada the control over fees is in the hands of the courts. So in Canada, contingent fees exist subject to lawyers' doubts re: risk and the inherent control exercised by courts. No harmonization across N. America (U.S.A. not controlled in terms of contingent fees)

Class action fees. Québec does not adhere to the traditional civilian concept which prohibits jgmt applying to persons that are not parties to litigation (in class actions, π's are not technically parties because they may not even know of the suit). Interesting, because same concept exists in CmL but seems to be no problem… No class actions in Mexico, unlike U.S.A., CmL Canada & Québec. The problem is costs – just finding π's costs a lot. Financing dilemma – great variety in N. America re: financing of class action fees. In the U.S.A. – contingency fee available, and there is no cost-shifting. The only thing lost is the lawyers' own time and disbursements. In Alberta, very heavy deterrence by cost-shifting. The Albertan government did nothing to facilitate class actions. B.C. has maintained contingency fee and a "no π costs" rule. Π's don't have to pay costs if they lose (but Δ's still do). Ontario: a modified, restrained form of contingency fee ("multiplier fee"). A class action fund also exists, which will pay for disbursements (but not lawyer fees). The cost-shifting rule remains. Québec – cost-shifting rule but fund which pays for the costs – all the risks are assumed by the fund.

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One simply must petition for the fund (the money comes from previous class-action jgmts). The only reason that Québec is not flooded by forum-shoppers is the linguistic barrier (a lot of firms have branches in Québec. Perhaps these big firms don't use Québec because they usually defend against class actions.). Big class actions are usually initiated either in Québec or in Ontario.

Security for costs : Mexico, U.S.A. – no; CmL Canada and Québec – yes (152, 153 CPP). Security seems justifiable in jurisdictions which shift costs. But foreign π's can escape the rule if they can show that they have significant assets in the host jurisdiction. Security for costs is a perfect example of the material private int'l rules – a solution created uniquely for the foreign problem – only foreign π's have to put out a security for costs. You don't look at some particular code of civil procedure, or some law – it's a rule specific to private int'l law.

o it may be that this rule will disappear, if rules for recognition of foreign jgmts will become more liberal and recognized. The diversity of procedural law with respect to security does not bother NAFTA.

2.1.1.2 Fees limits and Torquemada rule In UK barristers aren't paid by the clients – they are paid by the solicitors N. America: no upper or lower limit on fees, although fees are subject to judicial review From Lawyers' Weekly: a Toronto lawyer was ordered to pay the other side's costs personally for his gross professional

negligence. It's called a Torquemada rule. A lawyer must have "caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default"

2.1.1.3 Re Solicitors (1972, finst Ontario)Facts two solicitors negotiated a separation agreement between a divorced husband and wife. The solicitors represented

the wife, but the husband agreed to pay. Their bill came to $24K. They spent a total of 41 hours on the task, and obtained a lump sum of $50K payable to the wife, and a trust fund of $450K for the wife (until re-marriage) and children.

Holding fee unreasonable, should be $4KReasons Factors for assessing lawyer's fee

[1] Time expended. In this case, not a very significant factor. A note: this is a modest expenditure of time, but this doesn't mean a lawyer can charge huge hourly fees for it to get a large honorarium

[2] Legal complexity of matter. Nothing complex here. [3] Degree of responsibility assumed by lawyer. Normal degree here – any solicitor would assume a

comparative degree when dealing with divorce settlement [4] Monetary value of matter. It's large, but not extremely uncommon [5] Importance of matter to client. The wife here wanted a settlement that would keep her at the luxurious

style of living that she was accustomed to. This does not mean that the settlement meant more to her than to any other woman, no matter what style of living. Plus, during the 3.5 years of negotiation, the husband voluntarily paid to her and the children, keeping them at a luxurious style of living. Both spouses knew that the wife would re-marry (losing the trust fund), which, in fact, happened.

[6] Degree of skill, competence of lawyer. Here, appropriate and full discharge of their duties [7] Results achieved. Results were to great satisfaction of the client, but the husband paid support willingly

for 3,5 years anyway. The husband's solicitors (opposing side) were entirely reasonable and objective. [8] Ability of client to pay. This matters when a client cannot pay – but the opposite, the client's wealth,

should not matter. Just because a client is rich, a lawyer cannot charge tremendous fees

2.1.1.4 The American Rule (R. Marcus) in the U.S.A. only court costs are recoverable (filing fees, some out-of-pocket expenditures) by the loser. Non-

recoverability of lawyer fees by the winning party is called the "American Rule" In Cherry v. Champion Int'l Corp. a C.A. reviewed a trial court's decision to shift all fees on the winning Δ, since it was a

large corporation and the π was a little guy complaining of work discrimination. The C.A. called this judicial discretion abusive.

Cost-shifting allows (intuitively) frivolous steps and discourages little guys from suing big ones. Some cases go to trial just to recuperate costs, no matter what the merit of the case is (me: just like Mark's case at Ferguson Barristers…). The "American Rule", on the other hand, may prompt settlement, since parties don't want to spend too much on their own lawyers

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Exceptions to the American rule: (i) "when a lawyer's or litigant's activities create a "common fund" for the benefit of others, the resulting fund can be "taxed" for the fair value of the lawyer's work to avoid UE for the beneficiaries" (what?) (ii) if the parties stipulated cost-shifting in their K, (iii) if a π's claim results in an enforcement of a R affecting public interest (Δ pays) – but that's only in some states, e.g. California, (iv) Civil Rights Act: if a π's suit is frivolous, unreasonable, etc. (π pays), (v) Civil Rights: if a π who is claiming civil R's wins, Δ pays whether or not his defenses were groundless.

2.1.1.5 Client-Attorney Arbitration (J. Dzienkowski) In U.S.A. arbitration is becoming increasingly popular, with statutes allowing arbitration even for matters of public

importance. Arbitration is mostly considered by Δ's who are (i) sued often (ii) are willing to profit from small costs of proceedings

even if the result is not as good. Lawyer suits were not very popular in 1990 and the law on lawyer liability was still developing

Now there's a push for client-lawyer arbitration. ABA drafted Model Rules for Fee Arbitration. Most states require consent of both parties, and a few made it mandatory for the lawyer if the client requests it.

Arbitration à la ABA is not binding unless both parties consent to make it so. Otherwise, either party can sue de novo.

3.0 COURT STRUCTURES3.1.1 General : Rationae Materiae (comments by Glenn) Rationae materiae (subject-matter jurisdiction: first-instance, appeal, family, commercial) – is a matter of public order.

Parties don't have any choice. Usually a three-level court unitary court structure (first-instance, C.A., Supreme Court). Before 19C CmL had lots of first-instance courts, without appeal. In 19C they recognized that JJ could make mistakes.

Madison (U.S.A.) : in a true federation, the judicial branch must also be federated – there must be federal courts and state courts.

U.S.A. has a U.S. Supreme Court, then 14 circuits of C.A., below – first-instance courts, 90 districts. They deal with federal matters. U.S.A. Supreme Court only deals with federal matters – never with K or tort, for example (cf. Canada). Parallel state system: trial courts, intermediate C.A. and a Supreme Court of the state. It's very easy to go from trial courts to C.A. (much like in CvL).

So a very important question in the U.S.A. to ask: am I suing/being sued in a state or a federal court? State JJ are elected and receive contributions for their campaigns from lawyers – and recognize that these contributions affect their jgmt with respect to the lawyers. Bias against the non-resident. This problem is clearly recognized, but the solution is not apparent. People believe in choosing their JJ. In Missouri, JJ are picked by the government and the people vote 'yes' or 'no' through referendum.

o It is well known that foreign Δ's will be condemned to huge punitive damages, no matter what the merit of the action. It will be corrected at appeal, but one has to go through it.

Federal courts: matters from (i) federal legislation (ii) matters "arising under" federal enactment/legislation. Mass of jurisprudence about "arising under" (nexus btw a claim & legislation). Territorial reach of federal legislation – e.g. in one case Canadian π's wanted to sue a Canadian Δ in Texas. The J ignored arguments about Canadian non-recognition of such a jgmt, and instead focused on whether the federal legislation in question reached out to Canadian π's.

Compare the above to territorial (personal) jurisdiction – consensual in principle. Choice of jurisdiction rules (e.g. choice of forum in a K clause). Consent to a territorial jurisdiction may be explicit (e.g. K clause) or implicit (by conduct – saying anything about the merits of your case in a court of host jurisdiction)

3.1.2 Canadian Court Structure In Canada, federal-provincial hierarchy of courts is entrenched in the Cnt. It's a means of allocating power to the levels of

government in our federal structure. 100 Cnt Act 1867 : federal government controls salary and appointment of JJ in Superior Courts

3.1.2.1 Judicial Appointments (J. Ziegel) Canadian judicial appointment is very imperfect – political partisan and other reasons often prevail CBA established a special committee to review appointments, which recommended that special nominating councils

provide the names of candidates from which federal government would choose. A similar plan is in force in 30+ states in the U.S.A.

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B.C. has created a judicial council whose list is binding on the government; Québec has also created a council, but non-binding. Both have been very successful

Arguments against councils: hostility of public opinion + Minister of Justice's advisor is enough to combat abuse of appointing powers; and that Trudeau administration's appointment abuse was a temporary thing. Neither is true.

3.1.2.2 A.G. Canada v. Law Society of B.C. (1982) extract Provincial superior courts bridge the line btw federal & provincial governments: they are organized by provinces but the JJ

are selected and paid by the feds. They execute all laws, whether Parliamentary or provincial Federal court was established through 101 Constitution Act. It does NOT have exclusive jurisdiction to decide on the

validity of Parliamentary laws. Superior Courts may do so – otherwise valid and invalid laws may be administered indiscriminately.

Federal courts' jurisdiction is set out in the Federal Courts Act : claims against the Crown, extraordinary remedies against any federal board, commission, tribunal, navigation & shipping, bills of exchange & promissory notes where Crown is a party to proceedings, aeronautics, undertakings btw provinces

3.1.2.3 Québec North Shore Paper v. Canadian Pacific Ltd. (1976, S.C.C.)Facts Δ's challenge federal court jurisdiction after π initiated the action there. Π claims damages for breaching K to

build a rail-car marine terminal in Québec. Δ's assert that K is governed by provincial laws (K had clauses that they would be interpreted by Québec law); π's assert that 23 Federal Court Act gives jurisdiction in relation to any matter under 91 Cnt Act

Holding NOT within federal jurisdictionReasons 23 Federal Court Act : trial division has "concurrent original jurisdiction … in all cases in which a claim.. is

sought under an Act of the parliament of Canada or otherwise in relation to any matter coming within any following class of subjects, namely.. [see above]". In the case at bar, there is no applicable Act of Parliament, so the question is: does a claim in relation to a class of federal matters come within Federal Court jurisdiction ? Answer: no, there still has to be a valid federal law.

Provincial law which applies to matters of federal competence cannot be treated as a "law of Canada" within the meaning of 23 FCA.

"if independently valid and applicable, as Québec law obviously is in the present case … it is not federal law nor can it be transposed into federal law for the purpose of giving jurisdiction to the Federal Court"

Obiter Precedent: "laws of Canada" (from 101 Cnt Act) means any enacted Parliamentary law, or any law that Parliament can validly enact, amend or repeal.

When is an action founded on existing federal law? S.C.C. allowed claims in the federal court for: Crown's recovery of Canada Student Loan from Δ, recovery of cash advances from a Δ farmer (loan was a creature of a statute), an interprovincial/international airline's claim for damages to its cargo based on provincial law and the federal Carriage by Air Act (Bensol Customs Brokers Ltd. v. Air Canada).

The Queen v. Thomas Fuller Construction : S.C.C. ruled that federal court does not have an "ancillary" or "pendent" jurisdiction (e.g. π sues the federal Crown, the Crown brings in a 3rd party (in warranty) the 3rd party proceedings cannot be heard in a federal court (and vice-versa for provincial courts: if the Crown brings a suit there, the provincial court cannot hear a counter-claim against the Crown – AG of Canada v. Boeing Co. (Ontario), P.G. du Canada v. McDonald (Québec))

BUT : 17(1) Federal Court Act (1990): "the trial division has concurrent original jurisdiction in all cases where relief is claimed against the Crown" and (2): "trial division has concurrent original jurisdiction … in all cases in which (a) the land, goods or money of any person is in the possession of the Crown (b) the claim arises out of a K entered into by or on behalf of the Crown (c) there is a claim against the Crown for injurious affection, or (d) the claim is for damages under the Crown Liability and Proceedings Act.

3.1.2.4 Glenn Comments : Canada No federal court structure – nobody even thought of creating it. In 1867 Canada was a confederation. The court structure

is, in principle, unitary, and is similar to that of the UK. Provincial Superior Courts are of general and inherent jurisdiction. They are in principle competent for everything :

federal matters, provincial matters, private, public. For much of Canadian legal history the federal courts had very little jurisdiction (only for claims against the Crown) – there was simply no need for them.

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Unlike U.S.A. & Mexico, there is no need to argue that a particular case belongs in the federal jurisdiction. The provincial superior courts' judges are appointed and paid by the federal government anyway. The Superior courts retain jurisdiction over most federal matters (e.g. divorce, bankruptcy) The ultimate recourse from the courts of the Provinces is the Supreme Court of Canada – which is a federal court. There is no need for removal, certiorari, etc. – you access it through simple appeal.

However, in reality, Canada doesn't have a unitary court structure. Nor does it have a clear federal court structure. It has a triple court structure – (i) there is the "unitary" one (provincial superior court court of appeal Supreme Court of Canada) (ii) there are purely provincial courts (with provincially-appointed judges and a monetary limit of actions – e.g. $70,000 in Cour du Québec) and (iii) there are purely federal courts (with limited jurisdiction on federal matters like intellectual property, maritime law, immigration, federal taxation).

o Superior Courts can review the decisions of the provincial courts. The provincial courts are always "inferior"o The Federal courts are NOT subject to review by the superior court (decisions are reviewed by the federal

courts of appeal). Very specific and isolated private international law rules can be found in the federal legislation (within federal acts).

There is no general recognizable corpus of federal private international law. The provincial private int'l law is a coherent corpus of law (unlike in federal courts). Book X of the C.c.Q. clearly sets out

such rules in Québec, for example. Québec North Shore case – installation in Québec and delivery in Ontario and New York. [In the U.S.A. language, there

would be "diversity jurisdiction" – with the right of removal to the federal court. The state private international law would be used to determine which substantive law applies – e.g. that of Québec]. In Canada, federal court has jurisdiction over interprovincial undertakings (North Shore is an interprovincial undertaking), but what if there is no applicable federal legislation? Can the federal common law be used in the absence of federal legislation to decide on such a matter? Judgement: absolutely NO. So the Québec North Shore case is exactly equivalent to Tompkins. In Canada, there would be a conflict re: whether it's federal common law or federal civil law.

o In the absence of legislation, where would this "common law" come from? It would be developed from any caselaw – provincial, English, U.S.A.

So the federal courts have relatively little importance in Canada, unlike in the U.S.A. or Mexico. And there's no drive to get into federal courts, either, for reasons set out above. So the Canadian way is a 3rd way (compare to U.S.A. and Mexico) to ensure judicial integrity for a foreigner. Once again, neither of these remedies exists in Europe to counteract corruption – so North America is better for litigation than Europe!

3.1.3 U.S.A. Court Structure3.1.3.1 Court System in the U.S.A. (L. Newman & D. Zaslowsky) In U.S.A. there is a separate federal court system & state court system. Article III of the U.S.A. Constitution outlines

federal jurisdiction (cases affecting ambassadors, other public ministers, admiralty, maritime, actions where U.S.A. is a party, actions btw two states, citizens of different states, etc.)

District courts (91 districts) are the first-instance federal courts. Each district has a bankruptcy court as part of the district. Federal appeals are in circuit courts (13 circuits). There is also a number of courts outside of article III (e.g. Tax Court)

U.S.A. Supreme Court only handles federal matters from circuit courts + appeals from states' highest courts where the validity of a U.S.A. treaty or a federal statute is questioned, or where a state law is challenged on constitutional grounds or that a state law violates a federal law. Certiorari is granted for "special and important reasons."

o Also , on rare occasions district court hearings are presided by 3 JJ, and the U.S.A. Supreme Court is required to hear appeals from such jgmts.

Federal courts have jurisdiction in civil cases where there is a (i) "federal question" or (ii) "diversity" jurisdiction o Federal question is whether a matter "arises under" a federal law. No single test for it has ever been developedo Diversity jurisdiction is where the parties are citizens of different states, or one of them is a foreign national.

Any R's and authority not specifically granted to the federal government is retained by the states. Thus, federal courts have limited jurisdiction, outlined in the Constitution. State courts enjoy presumption of jurisdiction unless federal jurisdiction is proven. Also, unless stated explicitly, state courts have concurrent jurisdiction with federal courts on federal matters. Exclusive jurisdiction is copyright and patent cases, bankruptcy and some maritime ones.

State courts apply both federal & state law. Federal courts in diversity cases (cf. case under federal legislation) apply law of state where they are located (the Erie case)

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3.1.3.2 Procedure in the U.S.A. Unlike other CmL countries, U.S.A. places less emphasis on oral argument and substitutes a lot with written briefs. Unlike England, there is extensive discovery (in UK written interrogatories and lists of documents are exchanged – so

documents are not explained until the actual trial, except where 3rd parties engage in unlawful conduct relating to lawsuits of others)

3.1.3.3 Erie Railroad Co. v. Tompkins (1938, US C.A.)Facts π was injured by a passing freight train in Pennsylvania. He brought an action in New York, where the freight co.

is incorporated. The train co. argued that Pennsylvania common law should be applied (it's more favourable to them, treats persons who use pathways along railroad as trespassers); π denied that such common law, and argued that since there was no Pennsylvania statute applicable, "general federal law" should be applied.

Holding law of Pennsylvania appliesReasons Swift v. Tyson ruled that in diversity cases "in matters of general jurisprudence" the federal courts could apply

the general law, as opposed to state law (unless states had specific statutes). This did not bring uniformity of law but instead created uncertainties re demarcation btw general law and state law. Plus, foreigners had unfair advantage over citizens of a state since they could choose which court (and which law) would apply to them. This led to citizens changing their state citizenships to benefit from the choice.

The "general jurisprudence" is basically what the J thinks the law should be. There should be no such jurisprudence imposed on states. It's an invasion on states' autonomy.

3.1.3.4 Glenn Comments: U.S.A. federal courts Great interest to non-state citizens: get out of a state court and go to a federal court (since state JJ are very prejudiced

against foreigners) Grounds for removal to a federal court: [1] Federal legislation (there's a mountain of it). Federal antitrust, security, banking laws… But if a federal law does not

have the reach to the parties, jurisdiction is eliminated. So interpretation of law matters for both court jurisdiction and determination what law applies. Jurisdictional rules & choice-of-law methodology cannot be clearly separated.

[2] "Specific federal common law" exists, and there is much receptivity to the idea. It is used "sparingly" where unity of law is desired – e.g. "federal commercial paper" (bills & notes of exchange), maritime, labour law. So even in the absence of federal legislation, caselaw that departs from state law and points to the need of uniformity can be ground for federal jurisdiction. It must be used sparingly so as not to push application of state law in federal courts completely.

o Specific federal CmL deals with particular areas of law: e.g. banking, securities, labour, maritime law. Even in Canada there is a federal CmL in maritime, despite the overall rejection of federal CmL.

[3] Questions of Constitution and Bill of Rights. A claim must be rooted in the constitutional guarantees. It does not suffice if a defence to a claim is rooted in Constitution – e.g. one is sued for defamation, one argues constitutional guarantee of freedom of speech as defence not federal jurisdiction, must use state courts. The only way to go to the federal court in this case is through appealing all the way to the Supreme Court.

[4] "Diversity jurisdiction" (fixes the problem caused by the federal organization of the court system). This is really a good remedy – Glenn would argue that the judicial integrity in N. America is better than in Europe. In the EU the JJ are simply corrupt, and the EU rules just don't apply because of the corruption.

o Diversity must be complete – even if one defendant is from the same jurisdiction as the π, jurisdiction doesn't apply. One may contest territorial jurisdiction of a court, and use the law of another state.

o Lowens case: failed to recognize the diversity jurisdiction, were sued in a state court, condemned to hundreds of millions of dollars of damages.

Federal courts may apply state law. There's usually a ferocious battle about which law to apply in a pure private law. Swift v. Tyson ruled that federal court can apply general federal law. Erie Railroad: overruled it: there is no general federal common law (cf. particular federal common law). This did not prevent development of special federal CmL, e.g. in commercial cases.

o NY co. was sued by a Pennsylvanian π who suffered injury in Pennsylvania. Π sues in New York, knowing that Pennsylvania does not allow trespassers to recover for injury (and he was a trespasser). Finst court: general federal law should be applied, and the federal law should be kind to trespassers. Supreme Court of U.S.A. comes up with the astounding jgmt reversing it.

o Which state law should be applied? One way to answer this is to enumerate factors (e.g. connection to forum, expectation of parties, etc.) for future decisions. But if you do that, you create general federal (private int'l) CmL!

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So the federal court must follow the state's private int'l rules – of which state? The law of the state in which the federal court is located. E.g. if you are a Canadian who is sued in a federal court in Texas, the Texan private int'l rules will be applied in order to determine whether the Texan substantive law or Canadian law will be applied to your case.

o Why can't PIL be treated as "specific" common law? This argument simply never comes up – federalizing PIL is unnecessary. THIS IS UNLIKE EUROPE.

What law applies: no such thing as federal private int'l law – because of Tompkins. The state conflicts rule will be applied. So you don't know which law will apply until you know which court you will stay in – must decide on that. So public order is present, but party consent/control is also very much present.

Bankruptcy is a federal matter in U.S.A. and federal courts can deal with it (unlike Canada, where provincial courts deal with it even though it's a federal matter)

3.1.4 Mexican Court Structure3.1.4.1 Mexican Court System (S. Bayitch & J. Siqueiros) Mexico adopted state & federal system. Federal judiciary consists of the Supreme Court and circuit & district courts. The federal courts deal with the amparo proceedings, which are (i) laws or acts of authorities which violate individual Cnt

guarantees (ii) laws/acts that violate state sovereignty (iii) laws/acts that infringe on federal powers Federal courts also have exclusive jurisdiction in admiralty, where federal government is a party, cases btw states &

feds, etc. Concurrent jurisdiction in application of federal statutes (civil & criminal) and treaties All powers not delegated to the federal judiciary remain with the states. State courts have civil & criminal procedure

codes. The court system is a three-tier (finst, appeal, supreme court) The federal Supreme Court of Mexico has 10 JJ and one Chief Justice. Their salaries are constitutionally shielded, but

their terms are 15 years (cf. life). The Federal Supreme Court's decisions have no stare decisis weight. They only gain it after 5 consecutive jgmts (cases that do not achieve this status may be persuasive but not binding). Both the Supreme Court and the district federal courts are overburdened and therefore dismiss many cases on technical grounds (cf. deciding on the merits)

The state courts are weak: Mexico was historically very centralized. The state governments have independent power only in theory. They are inefficient and more likely to be corrupt. Vast majority of cases is initiated in federal courts. The 1994 reforms to improve state courts now require that state JJ meet most of qualifications required in the Supreme Court.

Federal courts can review every decision of state courts through amparo proceedings. This weakens the state courts considerably.

Commercial procedure: federal government enacts legislation relating to business and commerce, but state courts have concurrent jurisdiction with federal ones – no separate commercial courts. Mexican congress produced a Commercial Code, and later much legislation that frequently overlaps with it.

Commercial cases may be decided by regular civil procedure. If any party desires though, commercial procedural law may be applied.

3.1.4.2 Mexican writ of Amparo (H. Zamudio) Because the state courts are susceptible to corruption, lawyers wanted to avoid them, and resorted to amparo in order to

use the federal courts. The enormous influx of amparo cases in the Supreme Court led to reforms and creation of special collegial courts that

handle the amparo proceedings that are not of "major importance." Amparo includes: (i) protection of individual guarantees (ii) testing un-constitutional laws (iii) contesting judicial

decisions on constitutional grounds (iv) petitioning against official administrative acts (v) protection of social R's of farmers

Amparo may suspend any act which threatens deprivation of life, liberty, deportation, banishment. It's akin to the American habeas corpus. Such a proceeding may be initiated 24/7. State JJ may make such suspensions in the absence of a federal court in the π's vicinity.

Constitutional amparo exists in 2 version: (i) challenging un-constitutional laws to have them struck down, and (ii) challenging the application of a law to an individual π – the law is not itself struck down (!) - amparo contra leyes.

The "cassation" amparo (appeal of decisions, just like cassation in France) annuls jgmts inconsistent with the Constitution, from all jurisdiction in the country in civil, criminal, administrative and labour matters. It accounts for 80% of all amparo cases.

o Two grounds for invoking this amparo (i) procedural errors during trial, or (ii) substantive errors in jgmt.

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o Questions of fact are not reviewedo Court must confine itself to points of law raised in the petitioner's brief – no questions raised d'officeo In general, only cases of major importance are considered by the Supreme Court

Administrative amparo has assumed the role of administrative review proceeding: challenging administrative actions and decisions of both federal and state officials.

3.1.4.3 Glenn comments: Mexico State judiciaries are corrupt and appointed through political patronage. There is no federal CmL – so no laws in the absence of federal legislation. But it has a federal Civil Code – purely for

suppletive purposes in federal matters where there is federal legislation. So no usurpation from the state's power to regulate its civil matters. So in federal commercial cases, for example, you never have to borrow state K law (as in Canada). So you could even say that this Civil Code is "federal common law"

No removal from state to federal courts and no diversity grounds for removal. So if you are sued in a state court, you have to stay there. There is a presumption of integrity of the state courts (even though in reality they are quite corrupt). The state law will be applied – state PIL and substantive law. If you are sued in a federal court, there is both federal PIL (in the Federal Civil Code) and federal substantive law. So federal PIL rules exist (unlike U.S.A. & Canada). So you have to know which court you are in to know which PIL will apply.

The remedy is amparo. Everyone is suing on the basis of amparo (it's a difficult concept to understand for us, with our own legal background). Amparo is present in all of Hispanic world, even Spain. There exist "double amparo" where matters from state court go to the district federal court and then to the circuit (appeal) federal court. Amparo contra leyes is the most effective one.

For foreign Δ's the direct or simple instance amparo is a way to get to the federal court. Losing in the state supreme court gives you R to sue in the Mexican Supreme Court or the circuit court (from which one appeals to the Mexican Supreme "Cassation" Court). Lots of crowding in the top courts. So both in Mexico and U.S.A. there is corruption at the lower courts (and bias toward the foreigner) and, at the same time, remedial devices to go to federal court (diversity in U.S.A. and amparo in Mexico, which costs more money and time)

The federal judiciary is not accountable to the local population, the way the state judiciary is (in U.S.A.) and are in office for life. That is why they don't have bias against foreigners – it's considered to be the best guarantee for partiality. For example, a state JJ would probably never find a sports star guilty of gambling (the U.S.A. is quite barbaric)

4.0 TERRITORIAL JURISD'N & FOREIGN JGMTS4.1 DOMESTIC JURISDICTION 4.1.1 Territorial Jurisdiction in the U.S.A. and Canada4.1.1.1 Generalities : Canada Things that affect choosing forum: costs, presence of juries, quantum of damages awarded, etc. Now we are talking about where you can instigate your action – rationae personae – no public order. It's the π's choice, or

the agreed place.THREE QUESTIONS: [1] Whose rules prevail?[2] Sources of territorial jurisdiction law In Canada, there is no codification of federal PIL. It is found in legislation – e.g. maritime. Other areas of law simply

don't need rules to determine territorial jurisdiction (e.g. IP). Provincial courts do have an enormous caselaw dealing with territorial jurisdiction (e.g. K-ual dealings btw parties from Canada and U.S.A.) "Geographic heads of jurisdiction" are codified by provinces.

Historically in Canada: favoured the π Québec has specific rules:

o 3134 CCP: where Δ resides;o 3136 CCP: often called "forum conveniens" – although it is not. It's a rule of necessity (borrowed from Swiss

law which helps refugees)o 3139 CCP: ancillary ("warranty") claims can be heard if the court is competent to hear the principal case. Very

important rule, which does not apply, however, to an arbitration clause. A K-ual relationship defeats 3139 C.c.Q.

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o 3140 CCP: targets mostly incompetent adults and children in cases of emergencyo 3148 CCP: very major part of litigation now – heads of jurisdiction in patrimonial matters. The 2nd § rejects

"general jurisdiction" over foreign Δ co.'s – only special jurisdiction is recognized – i.e. can sue a foreign co. operating here only on K and not on anything you want. The 3rd § : Wabaso case: the π can sue on a very specific question ("salami technique" - you slice off a cause of action and argue it as a head of action) – in this case, only on failure to warn – and make it so that the entire cause of action arose in Québec. The 4th §: the "prorogation" clause (choice of forum) – can add a "derogation clause" that says this forum is exclusive

o 3149 CCP: "protective forum" – for consumers, persons who are to benefit from an insurance K, labourerso 3151 CCP: controversial: Québec is immune from a foreign suit

Ontario Rules:o Rule 17(p) : person residing in Ontario or "carrying on business" in Ontario can be sued in Ontario – a very broad

wording Nova Scotia & P.E.I . : rule that the courts have jurisdiction if the writ is served on the Δ anywhere in N. America. Glenn:

there is no rush to these courts, though. " Real and substantial connection " – used in the U.S.A. That can be used as a last resort if the heads of jurisdiction do

not apply. The courts may be receptive to that. It's a discretionary rule, dealt with on a case-by-case basis.

[3] Methods for resolution of territorial jurisdiction questions o salami method, agreement, geographic heads of jurisdiction

4.1.1.2 Generalities : U.S.A. Federal courts : jurisdictional rules come from the state courts (because of Eerie case). But sometimes despite the state

rules, there will be federal jurisdiction in a territory, since the federal legislation does not reach the Δ. Federal Rules of Civil Procedure 4(k)(2) – see Teamsters case. Overall connection with the U.S.A. warrants federal jurisdiction.

[from talking to Glenn after class] in the U.S.A. there is no general federal common law. This means that there may be common law in specific areas – e.g. banking, but there is no general CmL of obligations. In terms of private international law, it is taken from the states. The Federal Civil Code, specifically Rule 4(k)(2), however, supplements state PIL – it says that if there's a general connection to the U.S.A., a U.S.A. court may assume the territorial jurisdiction over a foreign Δ. In Canada, it's even more extreme: there is no federal common law at all. This means that beyond legislation, there are no rules (one may use cases as precedents for interpreting legislation, but for no other purpose). This is because in the 19th C there could be no compromise: Canada has two legal systems (CmL & CvL), so the federal common law would necessarily be one or the other, unfairly.

4.1.1.3 Territorial jurisdiction from the perspective of the π: arguing for the forum When one sues somewhere, sometimes it's necessary to justify the reason for choosing a particular territory or type of

court. There are a few considerations: (i) heads of jurisdiction (SN: Nova Scotia & P.E.I. – territorial jurisdiction is vast – can

serve Δ anywhere and then sue in those courts) (iii) Private agreements on jurisdiction are enforced, (iv) real & substantial connection when there are no particular heads of jurisdictions available

SOURCES & METHODS (U.S.A.)

Federal sources: state law on territorial jurisdiction Rule 4(k)(2) : when a matter is not connected to any state, but generally connected to U.S.A. – shade of Tompkins

o Method: sufficient aggregate contact with the U.S.A., required by 14 U.S.A. Constitution ("due process") – this is a general clause as opposed to a specific rule. The test is whether there is significant effect on the U.S.A. by Δ.

State sources: (used by the state courts & federal courts). State PIL is invoked when parties do not invoke diversity and do not seek removal to a federal court. Also, parties domiciled in the same forum may have an action with a foreign element: e.g. succession in another state, business operations elsewhere. Most of PIL cases are decided in state courts. There are, for starters, an enumeration of heads of jurisdiction ("long-arm statute") which allow a local court to assume

territorial jurisdiction over a foreign Δ (from another country, state). All states have historically had long-arm statutes Interestingly, in the U.S.A. the elected JJ have interpreted the heads of jurisdiction in progressively expansive ways, to

benefit local π's (and screw over the foreign Δ's). The head of jurisdiction of corporate activity in the forum has been used

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the most, e.g. International Shoe v. Washington (Washington DC, 1945). Π sued a Delaware corporation in Washington, succeeded because the DW corporation has sold some shoes in Washington, even though the suit was completely unrelated to sale of shoes (it was for delictual non-payment of some insurance benefit). The Delaware corporation was deemed to have submitted to the Washington jurisdiction by carrying on business there.

o What is "doing business" in the state? Keefe case: a N.Y. lawyer caught by the long arms of Colorado. The lawyer has to defend himself in a state where he's not qualified to practice. The jurisdiction is not a general, but a specific ("doing business in the state").

Another head: agreement of the parties, which can either derogate from some jurisdictions or prorogate (submitting to some particular jurisdiction). It is recommended that lawyers insert a choice of forum clause in their K with clients, specifying home jurisdiction as the chosen forum.

States that do not have enumerated heads of jurisdiction – "due process clause", which is like general connection (ref. Asahi) of Rule 4(k)(2). California will say "we are competent wherever it is permissible for us to be competent." A good knowledge of the Constitution is needed. The debate is completely focused on the Cnt arguments why California is not appropriate

o Constitutional rule is that of "minimum contacts." (the test for due process) Minimum contacts limit the general jurisdiction – this original limit is now taken as a test – i.e. if minimum contact is satisfied, there is a presumption of competence (as in International Shoe)

o Most states have moved toward minimum contacts. Even in Canada the tests resemble those of U.S.A. states. There is an agreement in the N. America. We are looking at a situation where anyone can be sued anywhere in the U.S.A., as long as there is some contact with the state – like in Europe (espace juridique)

o Convention in Hague: Europeans cannot accept the fact that simple sale of goods in the U.S.A. will subject them to the U.S.A. jurisdiction even for matters unrelated to sale. Ontario cannot object too much, since Rule 17(p) is very similar.

4.1.1.4 Territorial Jurisdiction from the perspective of the Δ: contesting foreign forum Usually, the forum of contestation is one which has been chosen by the π. The great danger in disputing jurisdiction is

tipping over into the merit of the case – as soon as the merits of the case are argued, the party is assumed to accept the forum implicitly.

Conditional appearance, special appearance, motion to reject jurisdiction. Again, if anything is mentioned re: merits of the case, it will be taken as submission to jurisdiction (in motion)

Not appealing a jurisdictional decision is taken as accepting the jurisdiction.

METHODS [1] Contest heads of jurisdiction or violation of Constitution (minimum contacts). Canada : 92(13) Constitution Act

(property & civil rights) – Nova Scotia & P.E.I. might have over-reached this section. Mexico: 121 Mexican Constitution prohibits extra-territoriality (so each country has constitutional limits)

[2] Contest choice of forum agreement. [3] Argue forum non conveniens ("FnC"). Québec has codified FnC. Even where the court accepts jurisdiction

simpliciter, the court may accept that it's not convenient to litigate in it – e.g. Piper Aircraft. Highly fact-specific argument. Thousands of cases in Canada. Some say that FnC should not be used to protect corporations which deal with other jurisdictions – e.g. criticism of Canbior (Québec co. which mines in Guyana, had its CYANIDE tank burst into a local river (!!) The Québec court accepted jurisdiction, but on the basis of FnC it declined it. For the convenience of litigation it declined jurisdiction in favour of courts of Guyana. The lawsuit in Guyana was never heard of – Canadian co. was quite happy. This decision is quite heavily criticized)

[4] If you lose the appeal, you can resort to equity (in π's jurisdiction) and ask the court to exercise its equitable jurisdiction to restrain the π from suing in an unnatural forum ("anti-suit injunction"). Amchem : you will only succeed in anti-suit if the foreign court is non-convenient & π is seeking an illegitimate advantage.

[5] You can seek a declaratory jgmt by suing in own (Δ's) place of domicile/place where goods are. If such an action is started before π brings an action, you argue lis pendens. If a declaratory jgmt in favour of Δ is given, the Δ's jurisdiction will not recognize or enforce the π's jurisdiction's jgmt. It's called "pre-empting."

o Amchem : S.C.C. says it's only in the rarest cases that a Canadian court will enjoin a foreign one from exercising its jurisdiction

[6] [If one consents to a foreign court's jurisdiction, the jgmt of that court will be recognizable. The very last resort for Δ's counsel is NOT to litigate in the foreign court, to abandon the defence, and then say to the domestic court: don't

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recognize this exorbitant jgmt. It's a very tough choice: if the jgmt is recognized, then the Δ is punished without ever having contested his case on the merits. The more likely your court is to recognize foreign jgmts, the more pressure there is to go and defend an action. Nowadays, the movement is toward liberal and widespread recognition of foreign jgmts.

4.1.1.5 Vile v. von Wendt (1979, Ontario, Dominion Law Reports)Facts π, an Ontario resident, was injured in Québec and was hospitalized in Ontario. He brought an action against 6

Δ's, 4 of whom were served in Ontario, and one - ex juris.Holding π can serve a Québec Δ ex juris. (HEAD OF JURISDICTION)Reasons "the π's claim that the same occurrence gave him a R of action against all of the Δ's, or at least that there was

doubt as to which of Δ's was responsible for his loss, rendered the 6th Δ a necessary or proper party to the action"

even though the injury was in Québec, the damage arising out of a tort was suffered in Ontario (pain, suffering, medical expenses) and loss of wages and business occurred in Ontario – pursuant to Rule (as it then was) 25(1)(o) and (h)

4.1.1.6 Moran v. Pyle National (Canada) Ltd (1973, S.C.C. from Saskatchewan.)Facts A Saskatchewan resident, was changing a light bulb manufactured by Pyle, a co. which manufactures in Ontario

and sells only to dealers (none of whom are in Sask.). In the process the resident was killed by electrocution, and his widow, π, wants to sue in Saskatchewan.

Holding in product liability foreseeable forum where damage from tort was suffered. (HEAD OF JURISDICTION)Reasons Undisputed rule: courts assume jurisdiction where tort was committed

To say that a tort is committed when a thing is manufactured badly is illogical. Π's sue not for faulty manufacturing, but for the resulting death.

"Generally speaking, in determining where a tort has been committed, it is unnecessary, and unwise, to have resort to any arbitrary set of rules"

General rule: where a foreign Δ carelessly manufactures a product … and he knows/ought to know both that … consumer may be injured and it is reasonably foreseeable that the product would be used where the π used it, then the forum in which π suffered damage is entitled to exercise its jurisdiction over that foreign Δ

Comment This S.C.C. decision is a precedent for all CmL provinces, unless the provinces have different rules on product liability jurisdiction. Most importantly, it establishes where a tort is committed in product liability, clarifying this particular head of jurisdiction.

4.1.1.7 Hughes Communications Inc. v. Spar Aerospace Ltd. (2002, S.C.C. from Qué)Facts Motient (one of the U.S.A. Δ's) contracted with HA Co. for manufacture of a satellite. HA Co. subcontracted

with π (Spar) for manufacture of the satellite's communication payload in π's Québec branch. During a period of testing, Hughes, another Δ, was supposed to monitor the satellite's performance. The satellite was seriously damaged, and HA Co. consequently refused to give the π Spar the promised incentive payments under the subcontract. So Spar is suing Hughes and other Δ's for negligence causing damage to the satellite and the resulting loss of profits from the 3rd party HA Co.) + damage to its reputation. The action is brought by the π in Québec, and Δ's contest this jurisdiction. Two of the Δ's also claim forum non conveniens.

Holding Québec can validly assume jurisdiction (HEAD OF JURISDICTION)Reasons Here, 3148(3) C.c.Q. applies: π's has suffered damage in Québec

Even though Spar's head office is in Toronto (and that's where it seems the monetary damages would be felt), Spar has sufficiently demonstrated that its Québec branch had a reputation of its own (it carried out more than 50% of its space operations in Québec) and therefore suffered damage to reputation there, and also that the Québec facility suffered injury as a result of withheld incentive payments.

The fact that π's damage is indirect (it is Motient whose satellite was fried), 3148 C.c.Q. does not take that into consideration

The fact that damage to reputation, which definitely happened in Québec, constitutes but a small portion of the total damages claimed ($50K for reputation compared to $870 for economic loss) does not matter. All

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3148 C.c.Q. requires is that "damage" be suffered in Québec – doesn't matter what amount. "Real and substantial connection" established by Hunt does not apply to Québec as a separate factor

in addition to 3148 C.c.Q. The Hunt criteria was developed in the context of interprovincial collaboration of sister-provinces (inapplicable here) and Book X of C.c.Q. already subsumes the "real & substantial connection test" – or at least 3135 C.c.Q. (on FnC) moderates the breadth of 3148 C.c.Q.

FnC requires another forum to be better suited + exceptional nature of Δ's situation. In the case at bar: interesting discussion of the FnC factors … see the case. The criteria are not satisfied. FnC should remain exceptional, lest the courts introduce too much uncertainty and inefficiency into PIL.

4.1.1.8 Wabaso Ltd. v. National Drying Machinery Co. (1981, S.C.C. from Québec)Facts π, operating in Québec, bought machinery from a U.S. co. (Δ) The Δ failed to warn of dangerousness of the

machine (didn't instruct properly on maintenance) and the machine caused fire. The K of sale was concluded in the U.S.

Holding it's a delictual matter – π can sue in the jurisdiction where cause of action arises (HEAD OF JURISDICTION)Reasons 68 CCP states that any personal action can be brought in Québec if (i) Δ resides here (ii) Δ has goods here (iii)

cause of action has arisen here (iv) where the K was made. Since the K was concluded in the U.S.A. and none of the other conditions apply to the Δ's, the Δ's argue that Québec cannot assume jurisdiction

BUT, in case at bar: just because π & Δ have a K, it doesn't mean it's a K-ual matter. The duty to warn about dangerous goods exists even if there is no K (e.g. if π's came into possession of dangerous goods with Δ's knowledge)

U.S.A. is more restrictive about bringing foreign Δ before U.S. courts – only if they knowingly brought their products into U.S.A.'s "stream of commerce." E.g. Asahi Metal Industry Co. v. Superior Court – a Taiwanese co. manufactured motorcycle using Japanese inner tube valve, and the motorcycle caused an accident in California. California court did not have jurisdiction over the Japanese manufacturer.

In Québec, on the other hand, "cause of action" criteria is being used to bring foreign Δ's before Québec courts even if the latter do not have any ties to Québec, and the K was signed in the foreign jurisdiction.

4.1.1.9 Tortel Communication Inc. .. v. Suntel Inc. (1994, finst Manitoba)Facts π's are Ontario co. which sues a U.S.A. Δ in a Manitoba court. Π was responsible for repairing telephones

supplied to Manitoba customer to Δ. Π claims that the Manitoba customer owes money to Δ, and therefore it is entitled to sue in Manitoba

Holding Manitoba does NOT have jurisdiction. (SUBSTANTIAL CONNECTION)Reasons the Manitoba co.'s owing of money to Δ had nothing to do with the dispute btw π & Δ

the action has roots and branches in Ontario or in U.S.A. but clearly not in Manitoba "the fact that a foreigner enters into K's with a Manitoba co. .. does not mean that the foreigner is carrying on

business in the province"

4.1.1.10 U.S.A. v. International Brotherhood of Teamsters (1996, N.Y. district court)Facts U.S.A. issued a decree to rid the Int'l Brotherhood of Teamsters (IBT) from organized crime. This action is in

fact against Labatt, a co. situated in Québec, brought by the U.S.A. government. Labatt prohibited IBT from campaigning in Labatt's parking lot. This renders the decree difficult to enforce. Labatt says U.S.A. has no jurisdiction over it. Labatt has a subsidiary in New York.

Holding U.S.A. can assume jurisdiction over Labatt. (GENERAL CONNECTION)Reasons Rule 4(k)(2) of the Federal Code of Civil Procedure applies (which says that a foreign Δ will be subjected to

U.S. jurisdiction if (i) it transacts business there (ii) does an act there (iii) has an effect in the U.S. by an act elsewhere

Rule 4.k.2 applies if (a) the case arises under federal law and is not pending before the court pursuant to diversity jurisdiction (b) foreign Δ lacks sufficient contact with any single state to subject it to personal jurisdiction there and (c) Δ has sufficient contact with U.S.

Case at bar:

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(a) official decree arises from a federal law. (b) Labatt is not subject to New York jurisdiction, because it does not have "continuous and systematic course

of conduct in N.Y." (has no bank accounts, or employees or ownership/lease of real property, public relations, publicity work, etc.). Plus, U.S.A. has not claimed that there is an agency relationship btw Labatt and its N.Y. subsidiary. Another N.Y. "long-arm" statute requires Δ to do business in the state, and the claim to be related to that business, which is not the case here.

(c) Labatt's action clearly affects U.S.A. because it hinders execution of decree in many ways.Comity Labatt asserts that U.S.A. jgmt is incompatible with Québec, since Québec has a law allowing an employer to

prohibit meetings on its property. But it's still possible to comply with the U.S.A. jgmt – the point is not to be in conflict with any law. Complying with U.S.A. jgmt is not incompatible with any Québec law

4.1.1.11 Asahi Metal Industry Co. v. Superior Court of California (1987, U.S. Supreme Court)Facts π is a Californian resident whose motorcycle crashed because of a faulty tire. The tire was manufactured by a

Taiwanese co. ("the Taiwanese") and one tire part was supplied to the Taiwanese by Asahi, a Japanese co. Taiwanese is suing Asahi. Asahi's tire parts are always delivered in Taiwan. Asahi does not deal with the U.S.A.The π's suit was settled, and the only dispute now is between the Taiwanese and Asahi – the former wants to litigate in California and Asahi opposes. Taiwanese asserts that Asahi knew about its sales to California.

Holdng California is NOT the proper forum (SUBSTANTIAL CONNECTION)Reasons Substantial connection

Asahi has no connection to California: no offices, no agents, no property, no direct sales Substantial connection is when an action of Δ is purposefully directed toward the forum state. "the placement of a product into the stream of commerce, without more, is not an act .. purposefully directed."

"A Δ's awareness that the stream of commerce may or will seep the product into the forum state does not convert the mere act of placing the product into the stream into an act purposefully directed"

Fair play and substantial justice the burden on Δ is great, the interest of π (who is from Taiwan) is slight. Taiwanese has not demonstrated that

it's more convenient for it to litigate in California "because π is not a California resident, California's legitimate interests in the dispute have considerably

diminished." Plus, deciding on international rules requires careful consideration, cf. mere trialDissent (in part)

even if Δ places goods indirectly into stream of commerce, it still benefits economically. There is no clear line btw "mere awareness" and "purposeful availment"

maybe if the good is brought into the state fortuitously by a consumer, there's no sufficient contact. But when a good is sold to an eventual U.S. supplier, it should suffice to create a connection. Asahi was aware of U.S.

Comment This decision is binding on all states, of course. It places limits on what it means to introduce something into the stream of commerce of a particular jurisdiction.

4.1.1.12 Colorado's very "long arms" (O. Whiting) Colorado has very long arm jurisdiction – "individuals or entities who send mail, phone and bill to, as well as collect

money in Colorado, are simply going to be subject to the jurisdiction of the Colorado courts" In Keefe v. Kirschenbaum & Kirschenbaum the Δ was a N.Y. resident who represented π, a Colorado resident, in a N.Y.

court – with all communication being passed through π's Colorado lawyer (E). The Δ didn't respond to a motion which resulted in a default jgmt against π because he received no direction from E, and π sued both E & Δ.

o Colorado requires Δ to have purposefully directed their activities at residents in the forum, and the activities to be continuous and systematic. The Δ's activities could not be characterized as "single or occasional acts."

4.1.1.13 Piper Aircraft Co. v. Reyo (1981, U.S. Supreme Court)Facts π's are representatives of deceased Scottish citizens who died in a plane crash (in Scotland). The plane was

manufactured in Pennsylvania (and its propellers in Ohio). Π's want to sue in Pennsylvania, admitting that the U.S. law is more favourable to their cause.

Holding Pennsylvania is NOT a proper forum (FORUM NON CONVENIENS)Reasons Showing that substantive law is less favourable in another forum does affect forum non conveniens

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If weight were given to substantive law, FnC would be rendered useless. Plus, if substantive law considerations were examined, court would have to engage in complex comparative law analysis

When a party chooses a foreign forum, it is a lot less reasonable to assume that the forum's more convenient for them than if they had chosen home forum.

Even if U.S.A. would benefit from deterrence imposed on its plane manufacturers (if the trial is held in the U.S.A.), this is not sufficient to justify judicial time & resource commitment

4.1.1.14 Amchem Products Inc. v. British Columbia (1993, S.C.C.)Facts 194 mostly British Columbian π's who suffered from asbestos in B.C. are suing Δ's, asbestos companies, in

Texas. None of Δ's was incorporated in Texas, but most of them carry on business in that state. The Δ want an injunction to restrain π's from taking an action in Texas

Holding injunction against lawsuit in Texas NOT granted. (ANTI-SUIT INJUNCTION)Reasons The issue here is comity. The test for "anti-suit" injunctions is this: (1) ascertain that a proceeding is pending

in disputed forum (i.e. no quia timet injunctions are allowed) (2) examine forum by (i) examining whether another forum is more appropriate, if not (ii) whether decision of foreign court is reached by principles similar to domestic ones/result of foreign jgmt is consistent with domestic principles, if not (iii) determine whether Δ will be deprived of a judicial or personal advantage in the foreign court – which depends on Δ's reasonable expectation before any lawsuits were initiated. Must be weighed against loss of advantage to π.

case at bar π's failed to establish that they have a legitimate judicial advantage in B.C., plus, they could not have

reasonably expected it. Texas does not recognize the principle of FnC but it must still comply with 14th Amendment of the American

Constitution (minimum contacts), which is as strict or stricter than FnC. Here minimum contacts were clearly established

4.1.2 Territorial Jurisdiction in Mexico4.1.2.1 Mexico: recognition of jgmts & territorial jurisdiction (Bayitch & Siqueiros)Provisions of the Mexican Constitution In Mexico legislation of each state has effect only within its territory. But jgmts over citizens of another state may be

enforced if the out-of-state citizen under conditions (i) citizen is domiciled in the forum state, or (ii) submitted to the forum state by prorogation, or (iii) if jgmt concerns immovables in another state, it will be enforced only if the other state's laws permit it.

A state may also recognize substantive (cf. procedural) laws of another state (e.g. in matrimonial regime, civil status of persons) "in accordance with the needs of the times, place and persons."

o SN from Glenn office hours: Mexico will now permit discovery by American and Canadian parties, making an exception in its procedural rules

Rules on interstate jurisdiction are very unclear – a Δ must be properly summoned, and summons is governed by the place where the Δ is found … so if the summons is not properly served in accordance with the law of Δ's domicile, the π's forum cannot assume jurisdiction or enforce its jgmts….

In the international sphere, it's as unclear. The Supreme Court of Mexico pretty much stated that a mere notification of Δ residing in another state is insufficient, but beyond that things are unclear! Patiňo case: "There is no provision in our procedural law that a person, national or alien not domiciled in Mexico, would enjoy any exception from jurisdiction or from procedural laws"

4.1.2.2 More on territorial jurisdiction in Mexico (J. Herget & J. Camil) In Mexico territorial jurisdiction rules are found in codes of civil procedure and statutes establishing courts. Apparently

the rules are similar to American ones. In matters involving real estate, the court sitting where the real estate is located has jurisdiction. Where tort is committed or K is to be performed the court has jurisdiction. Domicile of Δ or forum selection clause

may be used to determine jurisdiction. Where 2 or more courts are competent, the first to take jurisdiction prevails. A π submits to a jurisdiction by initiating proceedings, a Δ – by filing an defence or counterclaim. Special appearances

to challenge the court's jurisdiction ("declinatoria" proceedings) or to prevent a lawsuit in another jurisdiction ("inhibitoria" proceedings) are permitted.

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Mere presence of a party (e.g. in a train passing through state) is not sufficient to assume personal jurisdiction over the party.

In criminal cases, Mexican courts may try for offences outside of Mexico – if the accused is a Mexican or a crime was committed against a Mexican.

4.1.2.3 Jurisdiction over parties in Mexico (S. Zamora) A federal court located in a particular territory has jurisdiction over parties if (i) real property subject to dispute is located

within the jurisdiction (ii) debtor is domiciled within jurisdiction (iii) parties consent to jurisdiction (choice of forum clause) (iv) debtor is domiciled in jurisdiction in bankruptcy cases (v) domicile of deceased in inheritance cases (vi) place of residence of children/handicapped persons where their guardianship is disputed (vi) domicile of spouses/abandoned spouse in martial disputes.

o State courts have used this as a model, so their procedural codes are similar in matters of jurisdiction. Choice of forum clause is valid except (i) in agreements about real property R's/leasing, which result in foreign court

having jurisdiction over real property located in Mexico – Mexico has sole jurisdiction (ii) choice of forum clause involves "actual impediment or denial of access to justice" – wide discretion of court. The court will look at the expense to each party, and the ability of each party to choose a forum (i.e. unilateral forum decisions invalidate clause)

4.1.2.4 Glenn comments on Mexico What Mexico is doing right now is stating specific heads of jurisdiction. Mexican Constitution : it would seem that only a

proper summons is required to extend a long arm on a foreign Δ (i.e. sue any Δ from anywhere in the world with no justification of territorial connection). Many Latin American countries are very hostile to foreign law. As a π's lawyer, you may benefit from this traditional principle.

4.2 RECOGNITION OF FOREIGN JUDGMENTS

4.2.1 Foreign Judgments in Canada4.2.1.1 Glenn comments on CmL Canada Start with basic principle of recognition, recognize foreign jgmts where there is a real & substantial connection with the

trial forum, except:o fraud: in the course of the foreign proceedingso natural justice: this ground is now being used when the situation gets desperate (e.g., in one case parties claimed

that Singapore courts were not trustworthy, in Beals it was argued that Florida rule re: failure to respond to an amendment leads to default jgmt is in violation of natural justice.

o public order: if you pumped up public order, you could potentially eliminate PIL, so only certain local rules are public order, a very fundamental core, often found in Charters, etc, considered to be public order in the international sense

o public, penal & tax: since such law relates to exercise of sovereignty, BUT states are now beginning to collaborate with each other, especially for reciprocal tax enforcement. Not always clear how this applies, e.g., was the contempt order in ProSwing a penal order (3 judges) or not (4 judges)?

Morguard (1990) – changed everything. NAFTA also came in that year, so this jgmt comes in the era of free trade. Prior to 1990, there were two grounds for recognizing foreign jurisdiction (and enforcement of foreign jgmt) : (i) "tag" jurisdiction – simple service of S/C to the Δ within the territory of jgmt (ii) consent by agreement. Canada used to recognize only the U.S.A. jgmt, and only on those two grounds. So only stupid Canadian Δ's who signed stupid choice of forum clauses or went to the States only to get tagged, got sued there (recognized by Canada).

o In this case, debtors on a mortgage on property in Alberta move to B.C. Action is against them in Alberta, and π (lender) seeks to enforce jgmt in B.C. Neither tag nor agreement applies. S.C.C. : foreign jgmt should be recognized when there is a real & substantial connection btw the case and the adjudicating forum. The legal profession is uniform across Canada, the Superior Court JJ are appointed federally – why not recognize jgmts?

o It was not a constitutional decision. It's a change in CmL. Hunt : takes Morguard a step further – Québec law comes into conflict with a B.C. jgmt. The law says that corporate

documents in Québec cannot be removed from Québec for purposes of litigation (designed to prevent U.S.A. discovery, actually). In this case, B.C. wanted the Québec documents for discovery, and a B.C. court ordered a Québécois Δ to divulge the documents. In Morguard the real reason, say the JJ, was the "full faith & credit clause" (unwritten) – just like the same written clause in the U.S.A. A province cannot legislate to prevent recognition of jgmts of sister-provinces, so

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the given Québec statute is "constitutionally inapplicable" (i.e. does not apply btw provinces, but applies to the U.S.A.). B.C. can retrieve documents.

Beals v. Salandha (2003, S.C.C.). An Ontario couple buys a piece of Florida land for $4,000. Then they sell for $8,000. There is a mix-up about lot numbers. The purchaser builds a house on the sold lot. Turns out the lot does not belong to the Canadian couple. The purchaser has to destroy the house and rebuild it on the right plot. The purchaser sues the couple in a Florida court for "more than $5,000" (as stated in the S/C). The Δ's appear and defend the actions. Amendments are made, and Δ do not reply to them : in Florida law, this automatically leads to a default jgmt. Damages are fixed at $200,000 compensatory, and $50,000 punitive damages. The action to enforce jgmt happens 7 years after the award is given (and 12 years after the action was begun, and 14 years after the sale) in Ontario. The damages are now $800,000. S.C.C.: jgmt is enforced, because there's real & substantial connection and there's no abuse of justice. Since Canadian courts recognize punitive damages, the Beals punitive damages must also be recognized.

o The legal advice given to the Δ was clearly negligent, since the Florida action happened 2 years after Morguard. S.C.C. invited the couple to sue their lawyer.

Pro Swing (2006, S.C.C.): only jgmts for fixed sums ("liquidated damages") are recognized. Remedial (equitable) orders were excluded. In Pro Swing, an Ontario golf retailer/manufacturer markets golf clubs called "Rident." An Ohio trademark holder "Pro Swing" has "Trident" golf clubs, sues the Ontario Δ in Ohio for trademark infringement. The Ontario Δ consent to jurisdiction (not to waste money on litigation in the modern liberal atmosphere). The Ohio π got a "consent decree" that the Ontario Δ will no longer sell "Rident" and do everything necessary to remedy the infringement. Ontario Δ then goes back home and continues to sell "Rident." Ohio π sues for contempt of court in Ontario. Ontario Δ says: can't put me in jail me for contempt of court outside of Ohio, and cannot extradite me for a civil wrong. The S.C.C. divides. All members agree that the old rule can no longer apply. Foreign equitable remedies must be enforceable. But 4 members say this particular equitable remedy (contempt order) cannot be adhered to, because it is penal in character and because its territorial scope is unclear. The 3 other members say that the contempt should be enforced.

o Now jgmts are susceptible to being enforced – all orders, except this particular contempt of court. They must not have a penal character, and must have clear territorial scope.

U.S.A. & Canada made a treaty whereby both countries enforce each others' tax jgmts. This is contrary to a long-standing maxim that countries don't enforce each others' tax jgmts (same with equity, public law).

4.2.1.2 Glenn Comments on Québec (from classmate notes) C.c.Q. TITLE 3 & 4: international jurisdiction & recognition/enforcement of foreign jgmts. Shows that if you have

legislators setting out these rules, you will have protection of local interests Title 3 describes general jurisdiction in Chapter 1, and specific jurisdiction in Chapter 2

General jurisdiction 3134 C.c.Q.: In the absence of any special provision, the Québec authorities have jurisdiction when the defendant is

domiciled in Québec 3135 C.c.Q. : forum non conveniens: Even though a Québec authority has jurisdiction to hear a dispute, it may

exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide

3136 C.c.Q. : necessity: Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required.

3137 C.c.Q. : lis pendens: On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties, based on the same facts and having the same object is pending before a foreign authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority.

3138 C.c.Q. : provisional/conservatory remedy even where no jurisdiction as to base: A Québec authority may order provisional or conservatory measures even if it has no jurisdiction over the merits of the dispute.

3139 C.c.Q. : cross-demand: Where a Québec authority has jurisdiction to rule on the principal demand, it also has jurisdiction to rule on an incidental demand or a cross demand.

3140 C.c.Q. : emergency : In cases of emergency or serious inconvenience, Québec authorities may also take such measures as they consider necessary for the protection of the person or property of a person present in Québec. (to protect persons)

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Specific jurisdiction Division 1: family, Division 2: actions of a patrimonial (3148 C.c.Q. – heads of jurisdiction on domicile, consent, etc),

Division 3: real and mixed actions. In contrast to the uncertainty principle in CmL Canada, here we have fixed heads of jurisdiction and then general clauses

as a corrective supplement.

Recognition of foreign adjudicative authorities (very wide, not just 'courts') 3155 C.c.Q. – presumption of recognition, subject to exceptions and review of the jurisdiction of the foreign court.

Exceptions: o foreign authority had no jurisdiction to hear the caseo judgment isn't final or enforceable in the forum of trialo contradiction of fundamental principles of procedureo lis pendens (in a Québec court) whether the Québec jgmt is final or noto outcome is inconsistent with public order "as understood in international relations": do not judge foreign laws

abstractly as being incompatible with Québec laws, based EU tradition, only judge the result. E.g. used in France to recognize North African divorce etc cases based on Muslim law, only decide whether the outcome is compatible or not, do not get involved with the substance of the law.

Tax law : 3162 C.c.Q.: "a Québec authority recognizes and enforces the obligations resulting from the taxation laws of foreign countries in which the obligations resulting from the taxation laws of Québec are recognized and enforced."

o Most spectacular case when Canada sued big tobacco co. in a U.S.A. federal court (in N.Y.), claiming that they had acquiesced in Mohawk smuggling of cigarettes and are therefore responsible for lost revenue on cigarette taxes. The federal court did not recognize Canadian jurisdiction. The reciprocity was rejected by N.Y.

3157 C.c.Q.: " Recognition or enforcement may not be refused on the sole ground that the original authority applied a law different from the law that would be applicable under the rules contained in this Book." – this overturns old French law

3158 C.c.Q. – no examination of merits of a foreign decision – another rejection of old French law

Jurisdiction of Foreign Authorities 3164 C.c.Q.: "the jurisdiction of foreign authorities is established in accordance with the rules on jurisdiction applicable to

Québec authorities under Title Three of this Book, to the extent that the dispute is substantially connected with the country whose authority is seised of the case."

o The interpretation of this was considered by the Québec C.A. Plain reading would include both general and specific provisions of Title 3. Consequence: FnC can be questioned: the foreign court may have had jurisdiction, but ought they have declined it? Also, even if it didn't have jurisdiction, there could be necessity, emergency, etc., allowing the jurisdiction anyway. Worthington (2004, C.A.) ruled that 3164 C.c.Q. only applies to specific jurisdiction (Title 3, Chapter 2) because applying it to the general provisions would mean that each case would require a review of the FnC, emergency, etc. This would give rise to uncertainty. Glenn says that's true, but the Québec legislature has said that we have to live with that ambiguity both in our own jurisdiction and in applying foreign judgments. Glenn says it's obiter dictum anyway. What?

Blocking statutes Glenn is of two minds: he objects to "instrumentalization" of PIL by legislatures to protect chosen industries but, there is

no harmonization of N. American law, and therefore in principle, there is room for protection by local jurisdictions of its citizens (e.g. Québec protects its consumers). An alternative to "uniformization" of law, but how much? Asbestos regulation is close to the limit, in his opinion.

There is one procedural blocking mechanism, against U.S.A. discovery of Canadian corporations. The statutes exist in both Ontario and Québec

3129 C.c.Q. : " The application of the rules of this Code is imperative in matters of civil liability for damage suffered in or outside Québec as a result of exposure to or the use of raw materials, whether processed or not, originating in Québec." So Québec will not recognize foreign jgmts on liability for natural products from Québec (e.g. asbestos). There has been too much litigation on asbestos. 3151 C.c.Q.: "a Québec authority has exclusive jurisdiction to hear in first instance all actions founded on liability under article 3129" 3164(1) C.c.Q.: The jurisdiction of a foreign authority is not recognized by Québec authorities in the following cases: (1) where, by reason of the subject matter or an agreement between the parties, Québec law grants exclusive jurisdiction to its authorities to hear the action which gave rise to the foreign decision"

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o This has some power. Québec is the largest asbestos producer in the world (or almost), as so far there has been no enforcement of jgmts here (same in BC, which has an even more explicit blocking statute).

As a π, you can challenge these based on: Extraterritoriality – arguing that Québec does not have the necessary territorial element to be valid provincial jurisdiction.

The best authority for this is in Hunt , where LaForest J says that the intent of a blocking statute is not just to protect local citizens but to impede litigation abroad.

Transformative judgment: get the foreign jgmt to be recognized in a sister-province or sister-state, then come to the province in question which does not recognize foreign jgmts and claim comity between provinces/states (but must do it in good faith). This would be a rejection of European rule that doesn't permit transformative judgment.

o In Girsberger (1998, Illinois), an Illinois judgment against a Manitoba Δ; Manitoba does not recognize jgmt. The U.S.A. π took the jgmt to Ontario and got it recognized there. Then relied on reciprocal recognition of jgmts btw Manitoba & Ontario (through simple registration).

o The idea comes from the U.S.A. Both the U.S.A. and Canada have "full faith & credit" principles (American Constitution, Canadian case of Hunt): the only requirement is good faith. You can seek recognition in any province where the Δ company has assets, then execute it in Québec for the balance which is not recoverable in that province (this couldn't work in Europe because you couldn't have one executory ruling based on another to bypass a protective law, and no EU national court is obliged to recognize jgmt of another EU court in a case where their own country wouldn't have given recognition to the original jurisdiction).

4.2.1.3 De Savoye v. Morguard Investments Ltd. (1990, S.C.C.)Facts π & Δ were living in Alberta, π being the giver of mortgage, and Δ being the receiver of mortgage. The mortgage

fell in default while the Δ moved to B.C. The π brought an action in Alberta, where Δ did not show up. They wish to enforce it in B.C.

Holding jgmt can be enforced in a sister-provinceReasons Usually the Δ must be in the forum at the time of the action – or must submit to it in some way. In this case

the Δ was already in B.C. However, in Moran the court decided that an action can be brought in the forum where a tort occurred provided there's substantial connection – this is a flexible way to decide on the court's jurisdiction.o Case at bar : very reasonable for Alberta court to assume jurisdiction over B.C. Δ – very real &

substantial connection btw forum and injuryo Where a connection is tenuous, there are many discretionary techniques to refuse π's request for

assuming jurisdiction – e.g. forum non conveniens, or inherent power of the court to prevent abuse of process

Modern concept of comity must be viewed in light of the purpose of federation – a union where wealth, skills, goods freely flow. Justice, necessity, convenience also demand mutual recognition of jgmts

POGG of the federal government can be said to implicitly require "full faith & credit" All superior court have JJ appointed & paid by the same federal government; all are subject to supervision

from the single S.C.C.. Plus, Canadian lawyers follow the same ethical std

4.2.1.4 Hunt v. Lac d'Amiante du Québec Ltée (1993, S.C.C.)Facts π, a British Columbian, got lung cancer from working with asbestos produced by the Δ, a Québécois co. Π sues Δ

for negligence, failure to warn, etc. The action was brought in B.C. and π wanted to examine Δ's documents during discovery. In Québec, however, a blocking statute Business Concerns Records Act prohibits taking any document from Québec on the order of any "legislative, juridical or administrative authority." Π claims this statute is unconstitutional.

Holding Québec's blocking statute is unconstitutional and should be read down as NOT applying btw provincesReasons The purpose of the statute was protecting Québec businesses from overly long-arm anti-trust legislation in the

U.S.A. A blocking statute's aim is to frustrate litigation, not simply keep documents within provincial borders The statute is unconstitutional. PIL among provinces should be "adapted to the specific nature of the Canadian

federation" as was decided in Morguard. It leaves no discretion as to blocking the documents. It also discourages interprovincial commerce and litigation. Businesses in Québec would be totally immune from producing any documents for the purposes of litigation in another province.

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"this does not mean, however, that a province is debarred from enacting any legislation that may have some effect on litigation in other provinces or indeed from enacting legislation respecting modalities for recognition of jgmts in other provinces. But it does mean that it must respect the minimum std of order & fairness of Morguard"

Here, B.C. properly assumed jurisdiction and ruled out FnC. Very reasonable for Québec to co-operate.

4.2.2 Foreign Judgments in the U.S.A. 4.2.2.1 Glenn Comments (from classmate notes) Article IV of the U.S.A. Cnt : sec. 1: full faith and credit shall be given in each State to the … judicial proceedings of

every other state. Exceptions to recognition: (i) fraud, (ii) public policy, (iii) lack of jurisdiction by foreign forum (iv) due process (14th

Amendment). But they are very rarely applied, and the federally appointed JJ who control the application of exceptions are very receptive to full faith and credit, a tradition that goes back much further than Canada's (in Canada it was not recognized till 1990). Glenn thinks this attitude was carried over to recognition of foreign judgments.

Enforcing Canadian jgmts over American Δ's – good chances of success. Hilton v Guyot (1894) – U.S.A. Supreme Court jgmt should be recognized on the basis of reciprocity, a huge principle.

Here, a French decision could not be recognized because French courts did a revision au fond, but if a court didn't, there would be reciprocity. U.S.A. courts have since recognized Canadian judgments very liberally. Glenn thinks it's just a mistake, because they simply took the absence of revision as indicating reciprocity instead of actually investigating details of Canadian provincial law on foreign judgments, so it was actually a very non-reciprocal situation!

Test for USA is 'minimum contacts". In a sense, Canada has now replicated this process. So, if a Canadian wants to enforce a Canadian judgment in the US, you can go to any federal court (with diversity) where there is a state with minimum contacts, and then that can be enforced anywhere (if you go to a state court, you have to deal with a state court judge who might give a blocking statute a liberal interpretation, and then you have to go through a full faith and credit process somewhere else, whereas a federal court ruling is instantly applicable anywhere.

4.2.2.2 Enforcement of foreign jgmts in the U.S.A. (R. Brand) An action to enforce a foreign jgmt involves diversity, so it's decided in the federal court. After Eerie, there is no federal

CmL in private law – so the federal court applies state rules on enforcement of foreign jgmts. The federal court uses:o Enactment of the Uniform Foreign Money-Judgments Acto State caselaw about foreign decisionso Federal caselaw applying state lawo Sources from outside the state, where no state statutes, no state caselaw, and no federal caselaw on point

exists – this creates federal CmL, in spite of Eerie Among several states, reciprocity exists for mutual enforcement of jgmts. As for international cases, some state apply full

faith & credit to foreign countries just like to the states, and others use comity analysis – presumption of recognition of jgmt subject to certain mandatory & discretionary grounds.

4.2.3 Foreign Judgments in Mexico4.2.3.1 Glenn comments (from classmate notes) 571 FCCP : in principle, foreign jgmts are recognized in all situations except where there is: (i) lack of jurisdiction of the

foreign forum (ii) absence of personal service (iii) decision is not final, (iv) lis pendens exists (v) there is no reciprocity (generally, reciprocity exists across N. America)

Looks like the same as anywhere else, but professor Zamora says the only jurisdiction that will be recognized is one where Δ is domiciled. This, however, is not official Mexican law (see 571 FCCP)

Also, no enforcement while employees are on strike! (so employer may collude with employees to have them go on strike)

4.2.3.2 Enforcement of Foreign Judgments in Mexico (M. Lubrano & H. Mueller) Final jgmts by U.S.A. or Canadian courts may be enforced in Mexico without de novo review of facts, but several things

must be kept in mind:o Choice of forum clause cannot be unilateral – i.e. where only one party expressly submits to a jurisdiction. It

should be drafted in mutual terms (it's a question of form, rather than of substance)

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o The Mexican Δ must be served with notice of an action against it personally. Mexico does not recognize mail as personal service.

4.2.3.3 Enforcement of Judgments in Mexico (S. Zamora) Within Mexico, individual states are entitled to full faith & credit (121 Mexican Constitution) A foreign jgmt may be enforced if it's compatible with Mexican law. Choice of forum is recognized as long as it doesn't result in miscarriage of justice Some subjects (e.g. title to real property located within Mexico) are in exclusive jurisdiction of Mexican courts and foreign

jgmts are not enforceable in these matters. Δ's must receive personally served notice of action, and must have a fair opportunity to assert his R's, and live/have

offices/do business in the forum at the time that the action is brought (Glenn: this is not official Mexican law!). A Mexican J is given considerable discretion.

Choice of forum clauses are enforceable, but must be formally accepted by the Mexican party, in writing. A brief proceedings, homologation, is carried out where the J confirms the foreign jgmt. The Δ has 9 days to raise a defence from the initiation of homologation. The Δ may delay this further by filing an amparo action. If the Δ is a company, it can ask its labour leaders to call a strike – in Mexico, a strike "renders unenforceable any jgmt that would diminish the assets of the company." Or a sneaky Δ may pledge his assets to a 3rd party – criminally – if this is undetected, the foreign jgmt enforcement is useless. Finally, a Mexican Δ may file a suit against foreign π who wishes to enforce jgmt – under Mexican law, a foreign jgmt cannot be enforced if there is a lawsuit btw the same parties pending in Mexico.

All jgmts rendered in Mexico are denominated in peso (Mexican currency), so the sums must be recalculated if the jgmt is for some other currency.

4.3 CLASS ACTIONS: JURISDICTION & CHOICE OF LAW

4.3.1.1 Recognition of foreign class-action jgmts in U.S.A. & Canada (C. Jones & A. Baxter) Currie v. McDonald's Restaurants of Canada : Ontario C.A. allowed a class action launched by Canadian π's, even

though their suit was purportedly settled in Illinois. The notice to the class members was woefully inadequate. Lépine v. Canada & HSBC v. Hocking : Québec SC refused to recognize a jgmt imposed on the Québécois π's in Ontario. U.S.A. : courts of states where π's reside sometimes refuse to recognize jgmts imposed on those π's by another state's court,

if those jgmts are abusive E.g. State of Vermont v. Homeside Lending Inc. & BankBoston Corporation : a class-action jgmt in Alabama against an

asshole bank was imposed on the Vermont π's. The jgmt was outrageous, because the amount of damages received by the π's was a lot less than their lawyer fees! The AG of Vermont then sued the Δ bank for violation of the Vermont's Consumer Fraud Act, in the court of Alabama. The court of Alabama refused the attack of its own jgmt. This was reversed by the Vermont Supreme Court.

o "Full faith & credit" does not apply for jgmts that are Constitutionally infirm . Plus the Vermont Supreme Court said that Alabama did not have personal jurisdiction over the Vermont π's.

o 3 reasons for not recognizing out-of-state class-action jgmt compiled by the Vermont court (all apply to Homeside facts):

where a class action imposes monetary burdens on π's that exceed any benefits, a state has personal jurisdiction only on those class members who have minimum contacts with the state

even if a state court obtains personal jurisdiction over out-of-state π's, it must allow for opting out on fair notice of potential burdens

a state can obtain personal jurisdiction over absent class members only if the class representative adequately represents them.

4.3.1.2 National Class Actions in the U.S.A. (J. Feldman) In national class actions π's come from different states. Rule 23(b)(3) of the Federal Rules of Civil Procedure requires

that (i) there be a predominant common legal issue ("predominance") and (ii) that a class action is superior to individual litigation ("superiority")

In national class actions a lot of laws (of different states) may apply when π's pursue state CmL or state legislation claims, defeating both predominance and superiority, because trying to charge a jury on 50 different laws makes an action unmanageable! (even if laws differ "only in nuance")

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Arguing that the law of a single state must apply (state where Δ's have head quarters) doesn't help. The JJ think the laws of π's states should apply, otherwise it violates due process. In Phillips Petroleum Co. v. Shutz the forum state would have to have a "significant aggregation of contacts"

Some commentators criticize π's for failing to prove that differences in state law are immaterial (the onus is on the π) It's not that different laws cannot satisfy predominance per se, but a lot of jgmts have arrived at that conclusion…

4.3.1.3 Successful class actions (from "Appellate Spotlight," November 2006) Hubert v. Taylor : class action suit against lawyers who represented π's in a national class action. The lawyers made some

asshole deals behind the backs of some of the clients, which resulted in the malpractice suit. No conflicts among laws of states where different clients live. Action certified.

Enernath Oakwell (ON C.A. June 2006) – jgmt where lawyers tried to assert that Singapore's judicial system was corrupt and the Ontario J rejects the argument.

4.3.1.4 Glenn CommentsGENERALITIES ON CLASS ACTIONS Class actions need authorization before they can proceed. An affidavit establishing commonality of legal issues,

(sometimes, as in Québec) prima facie merits of the case, adequate representation. Then there must be notice to the members of the class (to allow for opting out)

A class action jgmt has res judicata applying to unknown individuals (who are members of the class). The damages are also fixed. Any member of the class who has not opted out CANNOT sue the Δ's individually (so, for example, π's whose family members died because of negligence of a car company cannot sue for greater compensation if all they get is 100-dollar coupons for their next purchase of the car)

In the U.S.A. the top judicial branches are very hostile to class actions, especially to class action settlements

JURISDICTIONAL QUESTIONS ON CLASS ACTIONS [1] Jurisdiction over Δ's: there's nothing radically incompatible between Ontario & U.S.A. – nothing suggests that

Ontario will not recognize American jgmts. If a national Canadian class action is brought against a French Δ, for example, can the Ontario court assume jurisdiction? Yes – there's a notion of general jurisdiction over national classes, just like in the U.S.A. Therefore, Ontario will recognize U.S.A. jgmts. So you better go and defend yourself in the U.S.A. as a Δ.

o Side note: U.S.A. : federal law sometimes doesn't have "long arms" to reach (protect) foreign π's. As we discussed earlier, if the law does not reach certain parties, the federal court cannot assume jurisdiction over them. In one case where Glenn was counsel, securities law did not apply to Canadians, so Canadian π's were excluded from the class (by the way, the Δ's were Canadian). We are talking about subject-matter jurisdiction here, by the way – not territorial jurisdiction.

Diversity: there has to be difference btw every π & Δ (so if there are Canadians suing Canadian Δ's in the U.S.A. – there is not a complete diversity)

o Class Action Fairness Act ("CAFA") – requires national or continental class actions to be brought in federal courts (but diversity still has to exist). So as Canadian counsel, you can avoid the horrors of state courts.

o MDP – multi-district panel – a panel composed of different federal JJ who deal with multiple class actions against the same Δ for the same thing across the country in one humongous proceeding (so not only are there multiple proceedings, but those proceedings have multiple π's – and all this is sucked into one city and brought before one panel of JJ!!)

[2] Jurisdiction over π's: π's must be informed so that they can opt out. In order for a class-action jgmt to have preclusive (res judicata) effect on member π's outside of the court's territory, the courts of the other territories must pronounce that. For Δ's that is catastrophic – imagine if other territories don't recognize res judicata of the jgmt of the forum court !

o the onus is on the π's to show why res judicata of the forum court should not be recognizedo Currie v. Macdonald's restaurant : Ontario court concluded that Currie can sue Macdonald's in Ontario, because

the notice given to the Ontario π's by the American litigants was woefully inadequate. Res judicata is only recognized where natural justice is satisfied. Nowadays notices to potential member π's are sometimes broadcasted on TV.

o State of Vermont case : π's lost money, lawyers took 30% of their commission not from the won damages, but from the π's own money!! The class action was rejected by the state of Vermont.

o Discrimination against certain clients, used to reach settlement – such a jgmt cannot be recognized because it reduces access to justice.

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INTERESTING ANECDOTE Glenn went to Washington to a conference and met professor Zamora. Zamora was involved in an interesting case: 3

U.S.A. π's and 1 Mexican π estate brought a case in Texas against American Δ's for faulty smoke detectors. Motion for forum non conveniens brought by Δ was rejected with respect to American π's, but allowed with respect to the Mexican π. The Mexican lawyer brought the case in a Mexican province that was different from one where accident occurred – because the lawyer's sister worked as a motion clerk in the court of that province (corruption). The court declared itself incompetent to take on this case, and the Mexican lawyer appealed this jgmt at the appeal court in the U.S.A. (so as to be permitted to bring the suit in U.S.A.) – Lopez v. Ford

o The American rule for recognition of jgmt is: a foreign jgmt will be recognized if the foreign court assumed jurisdiction on analogous grounds as in the U.S.A. In this case, no such grounds, since the province was inappropriate.

o U.S.A. district court discovers fraud on the part of the Mexican counsel. 28 USC §1927 : fined the Mexican lawyers $50,000 and the chief lawyer $100,000. They cannot testify anywhere. No discussion of choice of law with respect to the lawyers – the matter was considered quasi-criminal.

o In the absence of cost-shifting rules, the sanctions by the U.S.A. courts can be heavy. Corruption dominated the picture before anyone got to the merits of the case.

TRANS-BORDER CLASS ACTIONS AND BANKRUPTCY ACTIONS Trans-border class actions: the border pretty much disappeared. All members who have not opted out will be precluded

from bringing separate actions – if they received sufficient notice of the class action. So if there's a class action in the U.S.A., Canadians will be part of it, unless they opt out.

Question of fairness: notice must be in the language of the people (e.g. in French in Québec, Spanish in Mexico) What about the applicable law when a class action is national or international? As a π lawyer, you'd rather not go in there

– you need to research every state's law! Π lawyers usually bring the claim using the law of the state where the class action is brought (cf. looking at choice of law).

o Shutz case: common predominant issue needed. Result: if the case requires application of a number of laws (as choice of law rules would require), the common issues do not dominate, and the class action must be refused. So the choice of law destroys the action. Note: in class actions, exceptionally, the court invokes PIL d'office

o Hubert v. Taylor : contingency fee agreement was interpreted by the governing law, the law of Texas, so the action was not destroyed

Bankruptcy – is a collective procedure, like the class action. In order for a bankruptcy jgmt to have extraterritorial effects, creditors must be given notice of the proceedings. Corporate Creditors Association Act ("CCAA") precludes suits against bankrupts except in accordance with the bankruptcy orders. All must be treated equally – so Canada must give effect to U.S.A. decisions at the expense of the Canadian creditors, otherwise, there's no way to divide the assets of an American bankrupt fairly. The stay order (preventing creditors from individually suing) – has extraterritorial effect, and Canada will agree to be bound by the decision, as long as the Canadian creditors received a fair notice of the bankruptcy action – so that there's equal & fair treatment of the Canadian creditors. So the procedural requirements of bankruptcy are very similar to those of class actions.

This is an exception to the N. American rule of "territorial bankruptcy" – i.e. creditors of one jurisdiction can sue the bankrupt separately and the jgmt applies only within that jurisdiction. In European CvL, "universal bankruptcy" prevails. ALI/UNIDROIT.

o But in U.S.A./Canada, even in territorial bankruptcy there can be (i) joint protocols in the two proceedings, even (ii) joint proceedings where the 2 JJ talk to one another and proceedings are televised across the two courts. So in N. America informal cooperation create a kind of "universal bankruptcy" and fair treatment of creditors (procedurally)

Europe: in 2002 adopted a directive based on the principle of universal bankruptcy and allowing "incidental bankruptcies" (the language, etc. divisions btw European states is great). Glenn doesn't know how it's dealt it.

o Conclusion: in the absence of any substantive unifying law, N. America, through informal cooperation, superceded Europe – once again !

5.0 PRE-JUDGMENT REMEDIESPRE-JUDGMENT REMEDIES ARE PROCEDURAL.

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5.1.1.1 Pre-Judgment Remedies in Federal Canada (Glenn) Unlike CvL, where saisie conservatoire always existed, CmL did not have such remedies (except in Equity & Admiralty) In Aetna Financial Services Ltd. v. Feigelman the S.C.C. affirmed that Mareva injunctions (prohibiting Δ from moving

assets) are valid in Canada, but can be granted in exceptional cases only (in case at bar Δ transferred assets within Canada as part of business – does not justify a Mareva injunction. Implicitly recognized recognition of jgmts by sister provinces). Only "genuine risk of disappearance of assets, either inside or outside of jurisdiction" warrants a Mareva injunction

o N.B. Mareva injunction "freezes" assets in order to ensure execution of a jgmt In Québec saisie conservatoire is available, plus Mareva injunctions – so π can choose

5.1.1.2 Anton Piller KG v. Manufacturing Processes Ltd. (1975, HL)Facts Anton Piller, π co., delivered electric motors and generators together with confidential manuals and drawings to

the Δ, their agents who sold the machines in England. Π found out that Δ were secretly disclosing the confidential information to 3rd party co.'s who would use π's designs on the market. Π wants an ex parte injunction restraining the Δ's from infringing on its copyright

Holding injunction grantedReasons Anton Piller injunction is not a search warrant, because the π may never forcefully enter the Δ's premises. The

Δ's must give their consent (and if they don't, they will be liable for contempt of court), but nothing is forceful Π's should be attended by their solicitor, and should give the Δ the opportunity to consult their own solicitor Anton Piller can only be granted in "extreme case where there is grave danger of property smuggled away or

of vital evidence being destroyed"

5.1.1.3 Anton Piller v. ordinary measures in pre-trial discovery (A. Rock) Anton Piller is not like the usual procedures of production, discovery or inspection:

o Unlike discovery, where the parties can choose which documents the adversary views, Anton Piller gives the π the right to choose the documents by him/herself

o Unlike discovery, Anton Piller can be done even before the pleadings are exchanged – and even before an action is initiated (although π undertakes to issue the writ)

o In discovery if there's a dispute btw π & Δ about entitlement to view a document, the issue turns on the relevance of the document to the case. In Anton Piller, there's very little limit to π's search

o In discovery, privilege can be claimed over certain documents. In Anton Piller π can take any document that falls within the ambit of the order – notwithstanding privilege. Or it can be argued that by consenting to the search, the Δ implicitly waived privilege

o In discovery, one party views the documents belonging to another. In Anton Piller, one party retrieves his own documents.

Author: it is more appropriate to say that Anton Piller is derived from an English court's inherent jurisdiction to make a litigation process effective. The court always has power to prevent a party from frustrating the process.

5.1.1.4 Attachment of domestic assets belonging to foreign parties: U.S.A. (G. Berman) Nationality of either party has no relevance in the determination of availability of attachment The property owner (whose property is "attached" for the purposes of execution of jgmt) must have sufficient contacts

with forum for due process (when court exercises quasi-in-rem jurisdiction)o The presence of assets within jurisdiction can serve as valid connection to the forum for this quasi-in-rem

jurisdiction (this fits in with the fact that in the U.S.A. foreign jgmts are enforced in the forum if the Δ merely has assets in that forum – considered sufficient connection for enforcement of jgmts, in accordance with due process)

When the assets are located outside of the forum, attachment is not possible. Often courts anticipate that the other state will not cooperate – that it will refuse to recognize the ordering court's jurisdiction over Δ's assets, or refuse to enforce the pre-jgmt order on its territory. But if the Δ itself is present in the trial forum, the court may issue an injunction prohibiting the Δ from disposing of his assets, which has the same practical value

o In Republic of the Philippines v. Marcos the π asked that the assets of the Δ (located in UK and Switzerland) be frozen (i.e. that Δ be prohibited from disposing of any assets except to pay normal living expenses and his lawyer). The suit was brought in the U.S.A. by the Republic of Philippines against its former president who invested fraudulently obtained money in the U.S.A. The π showed sufficient probability of success on the merits & likelihood of irreparable damage & that balance of hardship tipped in its favour.

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o "The injunction is directed against individuals, not against property; it enjoins [Δ's] from transferring certain assets wherever they are located. Because the injunction operates in personam, not in rem, there is no reason to be concerned about its territorial reach".

o NOTE: this, and the case below, was overruled by Grupo Mexicano.

5.1.1.5 Grupo Mexicano de Desarrollo v. Alliance Bond Fund Inc. (1999, U.S.A. Supreme Court)Facts Δ was a Mexican co. which borrowed money from the π's. The Δ had bonds from the Mexican government,

which were its only viable assets as it neared bankruptcy. The π's found out that the Δ secretly dissipated these assets in favour of the Mexican creditors. The π's want an injunction restraining the Δ from giving out the bonds to other creditors.

Holding Mareva injunction – not appropriateReasonsScalia J

A well-established general rule is that equity only interferes with debtor's use of property after the jgmt Congress is in a better position to make exceptions to such a rule There's nothing new about the story of a debtor trying to favour other creditors (i.e. argues against need

created by modern times) A debtor has R to trial by jury – this would be upset if a pre-trial injunction were granted. Plus, Rule 64 in the

Federal CCP states which remedies a court can give out – it would be rendered useless if a powerful injunction, Mareva-type, were available

Balance btw creditor & debtor would be drastically altered. Plus, there would be creditors' "race to the courthouse"

DissentGinsburg J

Court has inherent jurisdiction to preserve the situation pending the outcome of a case, and prevent "abuse" of the legal process (172 CB)

The power of equity of a court is not limited to specific practices – only to general principles. So this court has flexible discretion

"increasing complexities of modern business relations" demand stronger equitable remedies. In the early time, in the "age of slow-moving capital … and comparatively immobile wealth" there was no need for such remedies

The π must show irreparable harm & likelihood of success on the merits. Irreparable harm is hard to show – the remedy is extraordinary

5.1.1.6 Attachment of Assets in Mexico (S. Zamora) A party may file for attachment of assets if both parties agreed to such attachment in a K. The π may bring the action in

the jurisdiction where the assets are located, and must show the existence of danger that the opposing party may attempt to flee the jurisdiction with the assets

5.1.1.7 Glenn comments: Anton Piller, Attachment & Mareva InjunctionsAnton Piller orders Order in personam that is an equitable order. The order says "please allow the π to enter your premises" …which Δ cannot

refuse Glenn has not seen a PIL Anton Piller proceeding – usually, it's asked in the jurisdiction where the suit is brought.

Obvious reason: too much cession of sovereignty if such an order was granted internationally. Anton Piller exists in Canada, including Québec. Less clear if it exists in the U.S.A. "Order for pre-action discovery" may

look like Anton Piller, since discovery requires the Δ's to provide info, and consequently the party may hold back some of the information.

Classic CmL: no rights prior to jgmt, so pre-jgmt remedies were unheard of, except in admiralty and equity.Attachment Exists in Québec (la saisie conservatoire), in Mexico, in the U.S.A., but does NOT exist in CmL Canada, since it received

the classical CmL – never came to Canada, since no such equitable order (Anton Piller, on the other hand, is an equitable remedy, and so is Mareva injunction)

Mareva Injunction Eventually came up in UK – enjoins the Δ from moving any assets anywhere. It's an equitable order in personam. Basic

means of enforcement is contempt of court. A "freezing order."

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Endless debate of which move is better (attachment v. Mareva). Attachment provides greater security (you've got the goods), but first you have to know which goods there are. In Mareva, you don't know which goods there are and where they are – but the goods are fixed in place securely. So both advantages & disadvantages in both systems

U.S.A. does not recognize Mareva injunction – only attachment (ref. Grupo Mexicano). Interestingly, U.S.A. appears very civilian with respect to pre-jgmt remedies.

Mexico has no equitable jurisdiction either – only attachment (provisionary or conservatory seizure) Québec does have Mareva – it has it all ! Modern world: a lot of assets may be transferred through internet, with a single click of a button There must be jurisdiction over the Δ. Enforcement of such a jgmt in a foreign jurisdiction : especially important against

3rd parties (especially banks). A bank in Switzerland, for example, is free to perform its contractual obligation to its client to move assets. Local court order is necessary enjoining the bank from doing so, otherwise the bank is free.

o Switzerland has made local orders to enforce Mareva injunction – a very important example of trans-national cooperation.

o But if Mareva (for example) does not exist in some country (e.g. in U.S.A.) can it be enforced for the benefit of Canadian π? The answer is unclear. Equitable orders may or may not be given full faith and credit

o Canada: ProSwing : in the future, Canadian courts will begin to respect equitable orders of the U.S.A. courts. In the case at bar, a penal-like contempt order was not recognized, but in general – the cooperation is forthcoming.

U.S.A. Québec Mexico CanadaAnton Piller not really yes no yesAttachment (saisie) yes yes yes noMareva Injunction no yes no yes

Situation: π sues Δ in the U.S.A., Δ has significant assets in Canada, and π fears that those assets will be spirited away. You can attach goods that are in Mexico for purposes of eventual recognition of foreign jgmt. U.S.A. – goods can be attached. Canada – Mareva injunction possible (Canadian courts froze assets in aid of proceedings going on in the U.S.A.). Québec: 3138 C.c.Q.: provisional measures may be granted for actions started abroad, without Québec needing to have jurisdiction over the action. Very broad wording. Includes a freezing order, an attachment for the benefit of a U.S.A. jgmt, and even an Anton Piller order.

6.0 PLEADING & DISCOVERY Curious side note: arbitration costs A LOT (e.g. for a 2-day hearing the fees for arbitrators & lawyers is about $1m USD!!)

6.1.1 Civil Procedures of the U.S.A., Canada and Mexico

6.1.1.1 Allan et. al. v. New Mount Sinai Hospital et. al. (1981, Ontario C.A.)Facts π sued his anesthetist for ignoring his request of not making injections in left arm, which caused a severe reaction.

In his pleading, the π did not plead battery, but the finst J found Δ liable for batteryHolding if battery is not pleaded, there can be no jgmt on that. Π has to amend his S/C

6.1.1.2 Allarco Broadcasting Ltd. et. al. v. Duke et. al. (1981, B.C. finst)Holding pleadings limit the scope of discovery. Amendment of pleadings does not automatically broaden the scope of

E/D, since authorization is needed by the courtReasons Courts have recently become concerned with increasing lengths of E/D

Each case must be decided on its particular facts re: scope of E/D The scope of E/D is governed by the original pleadings. Pleadings may be amended, but further discovery is

not always authorized by the court

6.1.1.3 Soke Farm Equipment v. New Holland of Canada Ltd. (1990, Sask. C.A.)Facts π sued Δ for "interference with the economic relations" with π's clients. Π refused to provide the names of people

who allegedly were advised by the Δ not to deal with the π. The Δ demands particulars

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Holding all witnesses should be disclosedReasons General rule is : party must disclose facts but not evidence by which the facts are to be proved.

Historically, witness names were not disclosed, to prevent the other side's attempts at tampering with their evidence. These considerations are no longer applicable

Nowadays, discovery is encouraged to protect from surprise, uncover relevant evidence, encourage settlement, focus the issues, pin down witnesses, permit counsel to size up the case, ensure decisions based on full consideration of the case

Certain reasons may justify non-disclosure of witnesses: e.g. possibility of violence to the potential witness – naturally, not the case here

Obiter Ontario & B.C. Rules expressly compel parties to provide names of persons with knowledge of the matters at issue

6.1.1.4 Rule 8 of U.S.A. Federal Rules of Civil Procedure (FRCP) S/C must have (i) a "short and plain statement of the grounds upon which the court's jurisdiction depends, (ii) short and

plain statement of the claim showing that the pleader is entitled to relief (iii) demand for jgmt for the relief S/D must state "in short and plain terms the party's defences" (admit or deny each averment, or state insufficient

knowledge which is equivalent to denial) "a party may set forth two or more statements of a claim or defence alternately or hypothetically, either in one count or

defence or in separate counts or defences"

6.1.1.5 Notice versus Fact Pleading (R. Miller) Before 1938 all federal courts pleading was "fact pleading" – parties had to follow rigid rules of composition of their

pleadings, otherwise, actions were dismissed Then, through amendments to the Federal Rules, notice pleadings were accepted (a simple coherent statement of the basic

claim sufficient). However, in some areas, such as civil rights actions, more detailed/rigid requirements are set out (to weed out frivolous actions, page 184)

Rule 54 allows the court to provide a remedy that was not in the pleadings Conley v. Gibson allows an even more "simplified pleadings." Still the statement cannot be too general, as Rule 8 requires

"grounds upon which [π's claim] rests" (page 184) Introducing new facts at trial that were not mentioned in the pleadings is okay, as long as the other party has sufficient

notice. Such notice may come in E/D (Sundstrand Corp. v. Standard Kollsman Industries). However, references to new facts in E/D must not be vague, otherwise it doesn't count (Samuels v. Wilder). Sometimes a party's sufficient notice may be deduced form the behaviour of the party: e.g. Sams v. United Food & Commercial Workers Int'l Union, where Δ's arguments, made in a petition to remove the case to the federal court, show knowledge of π's additional allegations. Finally, if the Δ does not protest to new facts during trial, new issues are treated as though they were included in the pleadings.

6.1.1.6 Nagel v. Pocono Medical Center (1996, U.S.A. district court)Facts π sued Δ for malpractice. In his S/C he used 26 pages of small print and repeated the same thing in consequent

paragraphs, changing only minor facts or adding a single word.Holding π's S/C violates Rule 8Reasons Π wanted to force Δ to provide large amount of info at E/D – this is not the purpose of pleadings

6.1.1.7 Rule 26 of FRCP (U.S.A.) A party must provide, without awaiting for request at discovery, (i) names of individuals who have discoverable info (ii) a

copy /or description & location of all documents, things that are relevant to facts in the pleadings, (iii) computation of damages (iv) any insurance agreement where applicable

Discovery warrants asking any questions which are relevant to the subject matter. The info need not be admissible at trial, but must appear "reasonably calculated to lead to the discovery of admissible evidence"

The court may limit frequency and/or extent of E/D if (i) E/D is unreasonably cumulative or duplicative (ii) party has had ample opportunity by discovery to obtain info sought (iii) the burden/expense of E/D outweighs likely benefit

6.1.1.8 Mexican Civil Procedure (Herget & Camil) Each state has CCP, the procedures are very civilian.

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Actions are stated by filing a complaint (demanda), which is countered by the defence (contestacion). The π is actor, the Δ is demandado. Each S/C has (i) statement of facts, (ii) consideration of law, which lists applicable codal/legislative provisions and their interpretation, and (iii) relief sought. The S/D accepts or offers a different version of facts, lists different codal provisions or different interpretations thereof.

There is no trial! Evidence is presented to the case in a series of hearings, whose number is not limited (as long as they are in good faith). Witnesses are interrogated by the J (although counsel for either side may ask the J to interrogate on specific subjects or ask particular questions), and there is no cross-examination. Often the J is not present, and the court secretary asks questions and types up the answers (witnesses then correct & sign the statements). The J also personally inspects physical evidence. Everything is compiled into expediente (voluminous recording of all the evidence), which is then read by the J in order to arrive at a decision. Before that the counsel may make closing oral arguments before the J.

o A party may obtain a court's order to have the other party or a 3rd person produce certain evidence or testify about something. This information may be surprising, but since the hearings are not limited, the other side may produce counter-testimony at the next hearing.

o Orders to produce evidence may be appealed, significantly stalling the action The J's final decision is written. It's 2-3 pages and vague. It orders specific relief or monetary damages. Failure to

comply makes a party liable for contempt of court, fines or imprisonment. If the case is appealed, the expediente is forwarded to the Appeal Court, and the court reads it, and may listen to the oral

arguments of counsel. C.A. makes a decision on both factual and legal issues.

6.1.1.9 Glenn Comments The type of procedure is a factor for choosing jurisdiction. If you don't know much about the case, you'll want

discovery. But there may be limits: e.g. Hunt – blocking statute preventing U.S.A. discovery in Québec Two models of civil procedure, both systems consider themselves inadequate: CmL & civilian Anglo-American : "Pleading of law" – historically, writ system, where lawyers say "I have chosen this writ," which

authorizes the case to go to trial (or not). Then the case goes to trial, where the lawyers again control the situation, bringing the evidence in. The J does no investigation whatsoever.

o The adversarial system depends entirely on the lawyers, not because it's a better way to find the truth (this argument appeared in 19th C), but simply because the J did nothing except authorizing the case to go to trial, if it fit within the chosen writ.

Continental system: great reliance placed on writing: oral evidence is not as essential. Characterized by a series of hearings. Evidence is authorized by the J. The J will question the witnesses, the lawyers may ask further questions, but the rule of thumb is 3 questions per witness. The series of hearings are "proof taking" (enquête). The lawyers don't do anything except pleading the facts. The court investigates, finds the law and applies it. All the evidence is recorded as synopsis: evidence is summarized by the J during the trial. Then the hearing occurs : may be oral, but usually the lawyers submit written arguments after the proof is taken. Now France allows lawyers to submit written arguments about what the law is – to guide the courts and expedite the process (which is theoretically unnecessary). Mexico is the same. Such statements of law are not binding on the parties like in CmL (e.g. in Canadian case – battery not pleaded, battery cannot be found by the J)

Mexico: frequently, it is the secretary (legal clerk) who asks the questions. As bureaucratic as in Europe. Disadvantages: CmL leaves too much to the lawyers, making it too long & costly. But in CvL the whole procedure is

bureaucratic, since the J never pursue the details of the problem with the same vigour as do CmL lawyers. Modern procedures in CmL: writ system abolished, fact pleading (or "code pleading") replaces it. After the fact

pleading, there is discovery (a preparatory device, which is not necessary in Continental systems, where evidence is brought sequentially). An equitable procedure of investigation was adopted. The J makes no investigation. Then there is trial. Québec opted into this procedure, too.

Fact pleading had its own problems: there was abuse, where counsel would plead every possible detail to expand the scope of E/D (Nagel). So, the pleading was changed to "notice pleading" – Rule 8 of FRCP. The U.S.A. at that time also abandoned the rule of E/D being circumscribed by the pleadings – you learn nothing from the pleadings, and you investigate everything at E/D. A lot of information is filtered at the E/D stage, so the trial is well-rehearsed.

o Now there is criticism of the American-style discovery. There are statutes trying to prevent monstrous discovery. Look at Hunt again. UK, by the way, doesn't allow discovery of parties and witnesses – only of documents

o The discovery in the U.S.A. is now controlled by the pleadings (Rule 26(b)(1) of FRCP). Pleadings crystallize the claims, and thereafter, one cannot discover beyond the pleadings (going "on fishing expeditions") Discovering the parties not mentioned in the pleadings is possible, but one has to obtain permission form court.

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o Still, there is lots of abuse of discovery in the U.S.A. ! It's a lot broader than in Canada. In Canada, it's relatively easy to amend pleadings: with no leave before E/D, and with leave thereafter. Proposed new procedure: American Law Institute ("ALI") combined a number of approaches for transnational litigation.

ALI agreed that notice pleadings could not survive. Must go back to fact pleading (the original civilian model adopted by the CmL world in 19th C). Then there is a process of taking proof (like in CvL) – which can be in a manner that is customary in a given jurisdiction (i.e. by a J in civilian jurisdictions, by a lawyer in CmL). Then, to avoid duplication of proof-taking (E/D & trial), all the evidence obtained during the proof-taking is entered into the trial record, and not repeated at trial. There would be no jury, and since parties could agree to such a process, they would also agree to no jury (overcomes the U.S.A. constitutional question of guarantee of jury – parties can always opt out, and in major commercial litigation, juries are not appropriate anyway)

6.1.2 Harmonization of the civil procedures for trans-national litigation How to harmonize judicial proceedings for trans-national litigation? By state adoption? (e.g. Ontario, Québec would have

to create a second book of civil procedure for major transnational proceedings). Or K-ual agreement on civil procedure (through arbitration or even in courts)? The CCP, after all, is not of public order. Glenn argues that it would be perfectly okay for a state court to apply K-ually agreed on civil procedure rules, although many disagree.

MLAT : like the tax enforcement agreement, Canadian-U.S.A. agreement to provide access to documents for criminal investigations.

6.1.2.1 International judicial assistance Cooperation is required in the following areas: Party/witness Proof/discovery Direct int'l proof-taking (done by the court itself)/ assisted fact determination (request for international judicial assistance)

CANADA Outgoing : sanction in personam for failure to cooperate imposed on parties. Foreign witnesses cannot be reached out,

though (cannot be subpoenaed) – in this case, indirect judicial assistance comes into play. A J sends a letter rogatory (letter of request to have a witness examined) – e.g. 426 CCP (Québec): " The court may, on application, appoint a commissioner to receive the testimony of any person who resides outside Québec or in a place too far distant from the place where the case is pending", and Rule 34.07 (Ontario): "Where the person to be examined resides outside Ontario, the court may determine, (a) whether the examination is to take place in or outside Ontario; (b) the time and place of the examination; (c) the minimum notice period; (d) the person before whom the examination is to be conducted; (e) the amount of attendance money to be paid to the person to be examined; and (f) any other matter respecting the holding of the examination.

Incoming : only Québec and Ontario have blocking statutes as defence against U.S.A. discovery techniques. The provinces make it a penal offence to remove documents from them. The provincial statutes can be used as defence. (clarify this)

Request to a Canadian court to force a witness to appear before the court. There are also blocking statutes here, but they do not apply to formal letters of request from the American JJ (!)

Samson Belair : Québec C.A. (2006) simply granted the request for documents, despite the blocking statute. The Ontario Courts also hold that the Ontario blocking statutes are inapplicable to formal letters of request for judicial assistance – at least elsewhere in N. America. And this is entirely a question of discretion. Presbyterian Church of Sudan : Albertan company sued by Sudan in N.Y. – N.Y. court is seeking documents from Ontario – the court makes no mention of blocking statutes. It denies the request, however, on the basis of the Canadian understanding of the appropriate boundaries of E/D – the request was too broad. So the judicial attitudes are more important than legislation! Discovery is especially subjected to judicial attitudes.

U.S.A. Outgoing : territorial jurisdiction on the parties, wherever they are. So what happens when a Canadian party would like to

cooperate, but can't due to the blocking statute? The U.S.A. courts are remarkably tolerant – since dismissing a case is too harsh a sanction. But in the settlement of the case, there will be negotiations about it.

Incoming : use of U.S.A.-style discovery in aid of foreign proceedings (for example, if Canadians sue Americans in Canada) – very appealing to many foreign parties, where proof is situated in the U.S.A., or where there is a witness in the U.S.A. over which Canadians have no power. Again, the U.S.A. is remarkably hospitable to foreign requests for E/D,

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even to the point of allowing E/D where no such discovery would be allowed in a reverse situation. E.g. Intel v. Advanced Micro Devices – essentially allows a "fishing expedition." Hague convention on the taking of evidence abroad has been adopted & implemented in Mexico & U.S.A., but not Canada (because it has blocking statutes). A central authority issues the order in a particular jurisdiction – not an easy procedure. Société Nationale Aerospaciale : π sought info from SNA (from France) – SNA refused to give info, stating that the U.S.A. could not directly request information from a party – it must apply to a U.S.A. central authority, which would then contact the French central authority, in accordance with the Convention.

MEXICO Outgoing: Mexico will exercise direct authority, but only for proof, since Mexico has no discovery. No need to fear a

vigorous pursuit. Requests for proof are made by a Mexican J – quite unlikely that sensitive Canadian documentation would be requested. A witness abroad: Mexico will issue a letter of rogatory. U.S.A. is usually very open to it, Canada is more conservative.

Incoming: U.S.A. uses the Hague Convention. Canadian lawyers suing in American courts can use the Hague convention. The new article 563 of the Mexican Federal Code of Civil Procedure – a J should allow proof to be taken by foreign parties (this was introduced with an intention to join the NAFTA). This opens the door to U.S.A.-style E/D performed in Mexico by foreign lawyers.

7.0 THE ROLE OF FOREIGN LAW7.1.1 Proof and Use of Foreign Law7.1.1.1 Québec Law: C.C.Q. articles 2806 C.c.Q. : no proof is required of a matter of which judicial notice shall be taken (me: judicial notice is

acknowledgment of something by the court as being true) 2807 C.c.Q. : Québec law is taken judicial notice of. Any law that is in force in Québec (but not published in the Gazette),

international treaties, agreements, customs can be pleaded. 2808 C.c.Q. : judicial notice shall be taken of any fact that is so generally known that it cannot reasonably be

questioned 2809 C.c.Q. : judicial notice may be taken of foreign law (states or provinces) provided it has been pleaded. The

court may require proof thereof (e.g. by expert testimony, certificate by a jurisconsult) 2810 C.c.Q. : court may take judicial notice of facts in dispute in presence of parties, may make any verifications it

considers necessary and go to the scene.

7.1.1.2 Foreign Law in English Courts (Fentiman) If the parties don't plead foreign law (even if foreign law is applicable), the J can never apply it Litigants sometimes do not plead (applicable) foreign law for reasons of strategy, cost or convenience

o E.g. there can be no legal advantage in foreign law (for example, UK law is the same)o Cost, time and difficulty of finding an expert witness is a deterring factoro Court may misinterpret foreign law to the detriment of the party invoking it. It may ignore a good expert witness

testimony. Sometimes a court mixes the interpretation of foreign law of the opposing parties and arrives at a conclusion that suits neither party!

o Lawyers may not know the techniques of comparative law and their examination-in-chief (or cross-examination) may render even a good expert witness' testimony poor.

o The UK law is unresolved re: how the applicable law is ascertained!

7.1.1.3 Rule 44.1 of the U.S.A. Federal Rules of Civil Procedure Rule 44.1: a party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or

other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

7.1.1.4 Reception of Foreign Law in the U.S.A. Federal Courts (Justice R. Miner) The current tendency of federal courts of U.S.A. is to avoid any foreign law considerations

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o E.g. in Euromepa S.A. v. R. Esmerian Inc., a party wanted relief of discovery in aid of foreign litigation. The litigation was pending in France. The district court held that because France had very limited discovery, it would be contrary to its law to allow discovery in the U.S.A. The Federal court overturned that decision, stating that discovery assistance should be available absent specific direction from the foreign court.

o The author disagrees with this approach: why not take a look at the French law and decide accordingly? In Vishipco Line v. Chase Manhattan Bank (where a Vietnamese π sued a Manhattan bank for deposits appropriated by

the Saigon branch of this Δ bank after it closed down due to the Communist takeover), the π attorneys did not plead Vietnamese law, and the court, even acknowledging that the Vietnamese law was applicable, applied the U.S.A. law

o This precedent was followed – the principle is that where parties don't plead foreign law, it's not applied.o Failure to plead foreign law deems the parties to have acquiesced to the application of U.S.A. law

Rule 44.1 of FCCP provides that application of foreign law is a ruling on a question of law. Before, this was treated as a question of fact "to be pleaded and proved, sometimes to the satisfaction of a jury!" Rulings of law may be reviewed on appeal de novo.

Author thinks that federal JJ have a duty to identify issues of foreign law, ascertain the foreign law and correctly apply it. The JJ must do their own research. Counsel usually do a good job of presenting the law, too, but the JJ research completes the picture.

o In IMAF v. J.C. Penney Co. the court, not satisfied with counsel's information on foreign law, ordered the π counsel to provide "a legal memorandum and accompanying documentation supporting its proposition that valid contracts existed under Italian law" within 20 days, and for Δ to respond within 15 days.

Federal courts may use a variety of sources to study foreign law: foreign law experts, copies of foreign codes or laws, reference works, decisions of foreign courts, law reviews, treatises, reports of special masters in foreign law.

Author thinks that courts should make more use of court-appointed experts, although experts retained by one side are not necessarily biased. Rule 706 of FRCP provides an elaborate system of testing the opinion of a court-appointed expert.

7.1.1.5 Foreign Law in Mexican courts (S. Zamora)Article 14 of the CCDF provides (for choice of law of different countries or different Mexican states): Foreign law should be applied in the same manner as a foreign J would apply it. The Mexican J should educate

him/herself about the text, effectiveness, meaning and scope of foreign law Foreign law is applied unless there are exceptional circumstances, whereby Mexican law is applied (or a 3rd party state's

law) Even if the application of foreign law requires institutions or procedures absent in Mexico, if there are analogous

institutions & procedures, foreign law must be applied Antecedent, preliminary or incidental issues may not necessarily be resolved in accordance with applicable law in the

given case When different aspects of the same legal relationship are governed by different laws, such laws shall be applied

harmoniously with the aim of achieving the intended purposes of each of these laws. Problems with application of different laws shall be resolved using equitable principles regarding the specific case.

7.1.1.6 Glenn comments: proof of foreign law Switzerland: the JJ decide on the content of foreign law on his/her own initiative (i.e. if parties fail to provide any evidence

re: content of foreign law) Jurisdictions where foreign law is applied d'office: court & expert institutes determine foreign law. The PIL rules are

applies as soon as it becomes apparent that the case has an international element – the rules are applied before it is known whether there is a conflict of laws or not – a presumption of conflict of law. This leads to delay (when the case is forwarded to a comparative law institute for an opinion. It's interesting that even despite harmonization in Europe, directives may be interpreted very differently in different states – even in Canada, dean Kasirer wrote that the CrC is interpreted differently in Québec cf. CmL Canada), and increased costs.

Jurisdiction where foreign law is optional: parties and party experts prove foreign law. North America: also a presumption of harmony of law – by mere chance, being the child of England! If the parties don't bring up foreign law, it's presumed that there is no conflict of law. Private law is not of public order, so it's ok (parties can even arbitrate in some private matters). There is least delay and least costs. But if the lawyers know nothing about foreign law, the legitimacy is doubtful … Glenn: if the lawyers do their research and see that foreign law is of no advantage, it is good to avoid the incredibly complex rules of PIL and save time & money… so, a good, smooth approach.

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QUÉBEC Proof : 2807 C.c.Q. judicial notice will be taken of Québec law, including Québec PIL – Québec courts refuse to hear

expert evidence on Québec PIL. 2809(1) C.c.Q..: other provincial law may be taken judicial notice of (i.e. JJ can look at relevant provisions themselves

without any help from lawyers). "Judicial notice may be taken of the law of other provinces or territories of Canada and of that of a foreign state, provided it has been pleaded. The court may also require that proof be made of such law; this may be done, among other means, by expert testimony or by the production of a certificate drawn up by a jurisconsult."

o The rule in Québec & Canada for admission of evidence: just as any other evidence. No rule on who can be the expert – a person who can best give the evidence can do so. Judicial discretion on who is a good expert.

o Glenn: court should accept expert evidence on domestic law. o Canada: work product privilege: product of lawyers' work cannot be discovered by the other side. The legal

experts are also covered by this (their notes, etc. are not discoverable). In N.Y., however, experts are subject to challenge on the grounds of credibility, and therefore the privilege doesn't exist (e.g. Glenn was examined aggressively during E/D on the little scraps of paper with his scribbles, which constituted the file of his research). In the U.S.A. even email is discoverable – so an expert's emails can be discovered.

Application : 2807 C.c.Q. says nothing about application. 2809(2) C.c.Q.. : "where [foreign] law has not been pleaded or its content has not been established, the court applies the law in force in Québec."

U.S.A. Rule 44.1: a party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or

other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law ( more openness to review on appeal, and excluded from jury).

o Glenn: the U.S.A. got it right, but the argument is that the N. American law is unfair to foreign law (favours forum law). Miner J (article above) thinks that it should be duty of the court to (i) find and (ii) apply the foreign law as soon as the pleadings reveal a foreign element in the case. So he supports the Bisbol model.

MEXICO Article 14 : compatible with the U.S.A. model.

7.1.2 Application of foreign law: optional v. d'office7.1.2.1 Civil Law Classic French case re: whether forum law applies and whether pleading foreign law is optional. The case is Bisbol, and

the conflict was btw French & Italian law. French law said the parties were entitled to divorce, Italy prohibited it (the rule was of "public order" – divorce was "against morality"). In both countries issues of status is decided by national law of parties, so the PIL rules were identical in the two countries.

The Bisbols were Italians who went to France to get divorce. Their divorce would not be recognized in Italy, but there is would still some recognition of their divorce to appease their minds. The French court was faced with the question: what law applies to two Italian nationals seeking divorce in France? Status is governed by the national law of parties – here, Italian law is applicable. Opposing side: argues for applying the French rules

o By the way, today this rule is irrelevant, because divorce everywhere in Europe has been subject to massive uniform reforms, it's a consensual, non-public-order matter.

So, the question in Bisbol was: does the forum apply its PIL rules, even if the parties do not plead the PIL rules? Aren't PIL rules part of substantial French law, normally applied by the French courts? The answer was affirmative.

o Argument in favour of applying PIL : the JJ know the law; PIL is enacted law in the same way as, for example, the civil code is; foreign law should have equal status as forum law in French courts, the J is neutral.

o Germany, Switzerland, Italy agree – the JJ should automatically apply PIL rules at his/her own initiative, even if parties don't plead foreign law. In Latin America – in theory, same thing but this has little bearing on reality (Mexico wouldn't have comparative law institutes, for example).

N.B. The French court of cassation overturned the Bisbol case, which makes France similar to the CmL. Québec adopted the French (CmL) rule, too. Other countries, mentioned above, stuck to the (opposite) Bisbol model. So Europe is not uniform in this sense.

o In PIL no state can expect that its rules of public order can extend beyond its boundaries.

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o Argument for harmonizing laws: the Bisbol model presumes a conflict of laws – huge obstacles to efficient conflict resolution in a EU. That is why Glenn opposes importing the European Bisbol model into N. America

7.1.2.2 Common Law Common Law courts have historically applied only forum law, their juries didn't know anything outside of England. The J

knew no law and, in any case, applied no law (the juries did). The parties and their lawyers controlled the case and the facts of the case (court did no investigation). If foreign law is to go in, it should does so at the initiative of the lawyers, and as fact. Historical premise: "foreign law is fact". It was treated as fact – the J has no obligation to apply it. It's part of the facts on which the case is decided.

8.0 DIRECT REGULATION OF FOREIGN ACTIVITY8.1.1.1 Citizenship Act (Federal, 1985) Real & personal property of every description may be taken, acquired, held and disposed of by a person who is not a

citizen But a Lieutenant-Governor can prohibit, annul or restrict the acquisition of, or succession to, any interest in real property

located in the province by persons who are not citizens /corporations controlled by non-citizenso L-G of each province can legislate on what acquisition, foreign control of corporations, etc. means o L-G cannot make any decision that (i) conflicts with Canadian obligations under int'l law (ii) discriminates btw

non-citizens on the basis of their nationality, etc.

8.1.1.2 Aliens' Real Property Act (Ontario) Every alien has the same capacity to take by gift, conveyance, descent, devise or otherwise, and to hold, posses, enjoy,

claim, recover, convey, devise, impart and transit real estate in Ontario as a natural-born or naturalized citizen The real estate in Ontario of an alien dying intestate descends and may be transmitted as if it had been the real estate of a

natural-born or a naturalized citizen

N.B. Many provinces now penalize or limit various forms of foreign activity, e.g. on foreign holding of land

8.1.1.3 Morgan v. AG Prince Edward Island (1975, S.C.C.)Facts π's are U.S. citizens who are challenging section 3 Real Property Act (1951 P.E.I.) which prohibits non-citizens

who are not residing in P.E.I. from acquiring more than 10 acres of land without permission from the P.E.I. P-G-in-council. Π's challenge the section on the grounds that it distinguishes btw aliens, which is a federal ability that section is ultra vires.

Holding 3 Real Property Act is constitutionalReasons The section applies to both citizens & non-citizens who reside outside of PEI. The purpose is to protect the

beautiful island from absentee owners "the power of a provincial Legislature to regulate the way in which land in the Province may be held, how it

may be transferred, how it may be used, is not contested" "Legislation of Province dealing with the capacity of a person, whether alien or infant or other, to hold land in

the Province is legislation in an aspect open to the Province because it is directly concerned with a matter in relation to which the Province has competence."

24 Canadian Citizenship Act gives aliens to R to hold, etc. land.. does it mean that aliens can't be distinguished on the basis of residence? No, provided that a province does not exclude or drive out the aliens from PEI, province can regulate alien holding of land

91(25) Constitution Act reserves to the Dominion Parliament the general R to legislate as to the R's and disabilities of aliens… [however] 91(25) did not empower the Dominion to regulate the management of the public property of the Province.

"I do not think that federal power as exercised in 22 & 24 Citizenship Act may be invoked to give aliens, naturalized persons or natural-born citizens any immunity form provincial regulatory legislation, otherwise within its Constitutional competence, simply because it may affect one class more than another.." as long as it doesn't affect the general capacity of an alien

Obiter same for federally-incorporated co.'s – they are not constitutionally entitled to any advantage as against

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provincial regulatory legislation

Provincial law requiring Canadian citizenship as a condition of membership in a provincial law society has been upheld in Re Dickenson & Law Society of Alberta

Higher fees for foreign students were upheld in Redlin v. Governor s of the University of Alberta There are also provincial restrictions on activities of non-residents or non-domiciliaries – in the areas of loan & trust

companies, securities industry, retail trade in books & periodicals

8.1.1.4 Canada Act 1982, s. 6 6.1: every citizen of Canada has the right to enter, remain & leave Canada 6.2: every citizen of Canada and every … permanent resident of Canada has the R (a) to move to & take up residence in

any province, and (b) pursue the gaining of livelihood in any province 6.3: the R's specified in subsection (2) are subject to (a) any laws of practices of general application in force in a

province, other than those that discriminate among persons primarily on the basis of province of present or previous residence (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services

6.4: subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada

8.1.1.5 Law Society of Upper Canada v. Skapinker (1984, S.C.C.)Facts π is a permanent resident of Canada and does not want to acquire Canadian citizenship (he's American). He was

educated in law Canada, and successfully passed the bar exam in Ontario. He was refused admission into the Law Society of Upper Canada (which means, of course, that he can't practice law there). Π challenges the Law Society Act (which specifies that members should have CAD citizenship), alleging it discriminates btw Canadian citizens & Canadian residents.

Holding Law Society Act is constitutionalReasons SS 6.2 (a) and (b) are not separate rights (to move and to work in a province). "The two R's in (a) and (b) both

relate to movement into another province, either for the taking up of residence, or to work without establishing residence (e.g. trans-border commuting to perform work). Paragraph (b) therefore does not avail π of an independent constitutional right to work as a lawyer in the province of residence so as to override provincial legislation.

In Andrews v. Law Society of BC (1989) a permanent resident of Canada, Andrews, challenged a BC legislation which denied entry into law profession for non-citizens on the grounds that it violated 15 Charter. This case overrules Skapinker.

In federal legislation relating to banks, trust co, loan & investment companies, the government frequently uses "25-10 formula" – foreigners can't own more than 25% of outstanding shares of a corporation, and more than 10% of outstanding shares being held by any one shareholder.

8.1.1.6 Alien Landownership in the U.S.A. (J. Fletcher) In the U.S.A., there are plenty of state restrictions on alien landholding. Vast majority of the states distinguish btw citizens

who are resident and those who are not resident. Many states restrict foreign corporate ownership. Federal restrictions are rare, but existent. E.g. Territorial Land Act (1887) prohibits non-resident foreigners from

purchasing U.S.A. land without intention to become citizens. There is also the Agriculture Foreign Investment Disclosure Act (1978) which requires foreigners who obtain or transfer any interest in agricultural land in U.S.A. to submit a report to the Secretary of Agriculture, and Foreign Investment in Real Property Tax Act (1980) which obliges foreigners to pay the same taxes on real estate investment as citizens

Foreigners are entitled to equal protection under 14th Amendment ("equal protection clause") but it's not absolute. When a case deals with aliens, the JJ exercise "heightened scrutiny" of a legislation, but in practice it doesn't mean much. Where the grounds for distinction are necessary to protect the special interest of the State or its citizens, discrimination btw citizens & non-citizens is permissible. "Special public interest" doctrine is sufficient for restriction of devolution of real property to aliens, for example, or denying aliens the R to acquire or own land.

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Lehndorff-Geneva v. Warren deals with a distinction btw resident & non-resident aliens. The court said that heightened scrutiny applies to resident aliens (since they pay taxes, support the economy, etc.), but the same is not true for non-resident aliens. The concern with non-resident aliens is that they logically have less interest in the welfare of U.S.A.

The above considerations re: welfare of state may legitimately serve the interests of the states. Another distinction that ought to be made with respect to corporations is are they buying an office (for example) for operation of its business, or for mere speculation? Prohibition of the former may stifle economy and int'l commerce, while prohibition of the latter seems reasonable.

8.1.1.7 Globalization & Dispute resolution – extracts (H.P. Glenn) NAFTA provides for resolution of anti-dumping and "countervailing duty" (a duty imposed to counter unfairly subsidized

products) through arbitration by jointly-named panels, replacing national courts. WTO Dispute Settlement Understanding (1994) also provides for arbitral panels for resolution of disputes arising

under WTO law. There are also other int'l agreements that provide for binding arbitration of int'l disputes. In the recent years NAFTA & WTO arbitrations have become more "legalistic" – there is talk of precedent in World Trade

law, for example, and there are time limits for brining actions, some measure of appellate review, stipulation of permissible sanctions. But arbitration is not completely "legalized" yet – parties still choose their adjudicators, sanctions are not imposed by panels, no court supervision, etc.

BUT substantive justice is not dying either – there is concurrent strengthening of international judicial collaboration. E.g. Brussels Convention (jurisdiction & recognition of foreign jgmt), Rome Convention (contracts), European Court of Justice and the European Court of Human Rights are all examples of a greater role of substantive justice in int'l disputes.

o No equivalent in N. America. But Latin America followed suit and created an Inter-American Court of Human Rights.

8.1.1.8 Glenn Comments "The Rome Directive" written in Brussels – but nothing of that sort in N. America.Three types of direct control: When choice of law rules become operative ("indicative rules") Control of choice of law rules (when they are excessive, e.g. when a jurisdiction unilaterally claims control over matters,

in its national Constitution) Direct regulation of foreign activity (rules which provide material results – "substantive PIL" – which achieve specific

results. E.g. securities regulations, foreign investments (foreigners can purchase only up to 10% of ownership of business, NAFTA rules, barriers to international trade, Blocking Statutes, rules on foreign ownership of land (everywhere in N. America), regulation of legal profession – but citizenship-based criteria has been struck down on constitutional grounds everywhere in N. America to further lawyer mobility, Refugee & Immigration law, access to education, welfare and health services for people of non-local origin. All of this is via specific legislation.

o 1 C.C.Q. every human enjoys rights – including "aliens"o CmL eliminates all disentitlements through statute

When is constitutional control needed in indicative rules? If there is bias in Europe, the case goes to the European courts of human rights – no such thing in N. America. Who controls neutrality of the choice-of-law process in Canada? Usually, PIL questions are considered by federally-appointed JJ. The review of cases is also done by a federally-appointed (higher) J. In principle, these JJ are not biased to any jurisdiction. In Mexico, the push for review is much greater because of its judicial system. In the U.S.A., diversity jurisdiction leads the case to a federal court. By and large, the U.S.A. resisted constitutionalizing the PIL – it's NOT a constitutional matter. State-state conflicts (cf. state-federal laws conflicts) are determined according to the PIL methods and not the Constitution.

o 14th Amendment in U.S.A., available to the aliens. Mexican Bill of Rights in Mexico, prohibiting discrimination against non-citizens. So, a national Cnt can provide control against excessive unilateralism in determining int'l rules. Rules against excessive absenteeism of foreign land owners have been upheld in all 3 jurisdictions.

o In Canada, however, there is a whole system for reviewing constitutionally the biased PIL decisions.

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9.0 CHOICE OF LAW : HISTORY & METHODOLOGY9.1 H ISTORY

9.1.1.1 History of PIL in France, 1827 (Merlin) A distinction btw real and personal statutes existed. Personal statutes had effect everywhere, even on goods that are

outside of the jurisdiction. Real statutes applied only within the jurisdiction, but extended to everyone within, domiciled or not.

E.g. Custom of Paris allowed passing of only 1/5th of property by will, the rest 4/5th had to be passed on to the heirs. This custom was real with respect to the immovables (doesn't matter where the person lives, goods located in Paris have to be passed on to heirs)

In a personal statute, immovables located outside of the jurisdiction (and owned by a person domiciled within jurisdiction) are governed by the law of forum. E.g. a forum citizen cannot alienate his property located elsewhere if a personal statute prohibits it.

So indirectly, foreigners are affected both by personal & real statutes. There are no statutes which are both personal and real (absurd notion)

9.1.1.2 History of PIL in UK (A. Sack) Unlike continental Europe, England had common law across the country, cf. varying local statutes – no "intra-national"

conflicts of laws Until the 17th C all international cases were tried at "common law." The reason for rejection of foreign law was the system

of jury trial – the jury represented the local community and knew of the matter in dispute. They could not decide on a case that happened elsewhere, and court strictly enforced that.

Instead, the admiralty tackled foreign cases (not only maritime matters, but also bills of exchange and other K's made abroad), which used the "general law of nations" or "merchant law." The CmL did not claim jurisdiction over foreign cases.

When the jury system evolved to the point where juries obtained information strictly from witnesses (cf. their own investigation), trying in a particular locality was no longer necessary. Bulwer case established that a case involving several English counties could be tried in any of the counties. This was extended to the international sphere – England could assume jurisdiction over foreign cases.

o Choice of law was a different matter. It evolved slowly: in 1760 Robinson v. Bland decided that laws of the place where K was entered into governed the K-ual matter, except if parties agreed otherwise

o Marriages recognized abroad were treated as valid in England. In divorce, the exclusivity of English courts prevails. Foreign spouses simply cannot apply to a UK court.

o The modern law is : "every action tried in UK must be tried by the law of England, but the law of England says that in a variety of circumstances, with regard to K's legally made abroad, the laws of the country where the cause of action arose shall govern"

9.1.1.3 Glenn Comments on History Coquille shows the debate which was happening in France in the 16th C – he says acts by human will have to be regulated

by the law of domicile. This is a PIL rule! Juridical acts are governed by the law of domicile. But, Coquille goes on, we must then look at statutes – at the intention of the legislator (cf. actual statement of the statute) – would the legislator want the statute to apply extraterritorially to achieve its goal?

o New PIL rules are created when statute interpretations crystallize Savigny (19th C) – the father of modern PIL. He argues for autonomous states with their own rules of positive law. This is

a very modern language, reflecting reality today (to a large extent). Each country is a "center of gravity."o The system of positive law is a fact. E.g. French law exists as a fact, German law exists as a fact – and there is no

obligation to obey a law (one obeys to avoid penalties, but there is no obligation). This leads to the idea that internationally, there is no obligation to follow foreign laws either. Coquille doctrine cannot apply (the interpretation of law) – a rule is a rule, because it is formally enacted. They don't have a normative objective. Each national legal system is incompatible with all others. So rules of allocation are needed.

o Rules of allocation are not normative in character. They are neutral – they have a simple geographic character. Nature of relationship is evaluated. Black-letter law has been written - e.g. Dicey & Morris.

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Today: a comeback to the Coquille, Savigny criticized. An interplay between the PIL black-letter laws and methods of PIL. Now is the time of change… and reduced predictability.

9.2 METHODOLOGY

9.2.1 Introduction Exclusivity & territoriality of national laws ? Some are now arguing for neo-Medievalism – multi-law society (in Canada,

multiculturalism prevails, for example) Solution 1 : rejection of foreign law. E.g. ius civile : applied to the Romans only. The rest of the people were Barbarians.

If the Barbarians had any contact with the Romans, ius gentium : law applicable to private relations, K with the Barbarians (the first sophisticated comparative law, or maybe just Roman law that is adjusted for non-Romans). The law of other states was neither known, nor considered.

o England, till about 18th C: same thing. England had many internal law (ecclesiastical, maritime, common laws, etc.). But the only rule in each of those jurisdictions was lex fori – no choice-of-law rules. The reason for this was the jury, who only knew the local law and customs – they couldn't decide using some foreign rules. Only by 1760 the "witness-informing-the-jury" concept was developed, and choice of law began to be considered.

o In Canada, in matters of divorce the rule still exists – no choice of law lex fori. o In Mexico, divorce & succession are a big PIL issue. "Chihuahua divorce" – people used to get divorced in

Chihuahua because of its expedient divorce process – but now Mexico, as a true civilian tradition, applies the law of the spouses' domicile.

Solution 2: personality of laws: law is not territorial, but an intellectual construction that regulates human relations. Law attaches to human beings, not to the ground. The law of one's community travels with the person. Imagine a group of people sitting under a tree, each governed by his own law. Jewish, Muslim, Hindu, Aboriginal law (88 Indian Act – aboriginal marriages and adoptions are valid, for example) are personal (e.g. in India, Muslims are governed by Muslim law).

o Ontario prohibits religious arbitration (unlike all other provinces, except Québec which outlaws any arbitration in family law). Freedom of religion plays a big role in this : reasonable accommodation. Also, intellectual property, international human rights – challenge the modern idea of territorialism of law.

Solution 3 : common laws in the whole state, particular laws in localities. Choice of law was not a problem. Common law couldn't regulate local matters. "Statutists" would argue about the reach of the laws of localities into other areas: they needed to decide whether a law was personal or real. Today: a parallel – state laws are like the 'particular laws,' and transnational laws are like 'common law.' Such laws need to coexists with each other.

o It is said that national codifications destroyed ius commune, and the world became composed of national legal systems. Presumption of validity of national laws – each system is a fact, and is irreconcilable with the other – presumption of conflict of laws. Science of the conflict of laws is developed.

Solution 2 & 3 were historically based on interpretation, not rules. If the legislators were asked, would they say that the rule has to apply to a particular situation?

9.2.2 Theories on Private International Law9.2.2.1 Treatise on Conflict of Laws (Coquille) Dispositions and acts ought to be regulated by the custom of the place where the actor is domiciled The question is whether a statute is real or personal, which depends on the "intention with which the statute was passed"

9.2.2.2 Treatise on Conflict of Laws (Savigny) "in deciding cases, which come in contact with different independent states, the J has to apply that local law to which the

case pertains, whether it is the law of his own country or the law of a foreign state" exceptions to applying foreign law:

o certain "absolute" laws (i.e. citizens have no choice with respect to it – e.g. age of majority) call for exclusive application of domestic law. Some absolute laws are enacted for the protection of right-holders (e.g. age of majority), and should not be the exceptions. Other absolute laws are made on moral grounds (e.g. prohibition of polygamy) or for public interest – and should be the exceptions.

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9.2.2.3 Determining the reach of laws (Pillet) The distinction btw "territorial" and "extraterritorial" statutes is important: in the latter, the law follows a citizen, in the

former, the law applies to all who come within a state. In choosing which type a statute should be classified under, on has to consider the social effect of a statute. A social goal

determines if the law is obligatory or elective in each case. Both laws in conflict should be evaluated in this way

9.2.2.4 French PIL (Francescakis) Public order interferes in the selection of laws: if the application of a foreign law produces unacceptable results (e.g. illegal

adoption of a child being recognized), the domestic law becomes exclusive In the French civil code, exclusive domestic laws are those of "police et de surêté" (e.g. prohibition of export of grain,

regulation of weights and measures). Of doctrinal origin are the rules of public order which are exclusive.

9.2.2.5 Better model of PIL (B. Currie) The court, instead of using "choice-of-law rules" should look at the governmental policy behind laws of forum, and then to

the relation of the law to the case. If the court finds that the domestic state has no interest in application of its policy in a given case, but the foreign state does, it should apply the foreign law. Vice-versa situation: it should apply domestic law. If both have an interest, domestic law should apply. If neither has an interest, domestic law should be applied for simple convenience. It would save a lot of hassle.

9.2.2.6 Choice of Law in Mexico (S. Zamora) Mexico doesn't have a PIL, the closest thing is rules in the FCCP. Separate rules apply to physical & moral persons In the past, Mexico was fiercely territorial. But in the 1980's article 12 of the Civil Code for the Federal District (CCFD)

was amended:o 12 CCFD "Mexican laws apply to all persons within the Republic, as well as to acts and events that take place

within the Mexican territory or under its jurisdiction, and to those persons who submit themselves (or their acts) hereto, unless Mexican law provides for the application of a foreign law, or the application of foreign law is otherwise provided by treaties or conventions

o FCCP (federal civil procedure, applicable in the federal courts of all of Mexico) received the same amendments.

This article doesn't create much: for a foreign law to apply, there has to be a law – JJ cannot invent rules 13 FCCP was added, enumerating choice of law rules:

o status & capacity of persons are governed by laws of their domicileo real estate governed by law of the place where it is located, regardless of the foreign nationality of owners

15 FCCP: foreign law cannot be applied to evade fundamental principles of Mexican law Moral persons are governed by the law of the place where they were incorporated and by their articles and rules.

9.2.2.7 Glenn comments on the theories Pillet (1903) – a French theorist of PIL – he is Coquille-like. Talks about "but social" of statutes. But whose legislative

intention are we looking at? He was ambiguous. Also, look at how much a law loses its authority by non-application: look at the damage of not applying the law in order to assess which jurisdiction has greatest interest in application of its law. The one that suffers most from non-application should be given priority. Unlike Savigny, he insisted that we look at what laws are created to do

Fancescakis (1966) – we must reverse the choice of law process. Keep the rules, but reverse the process: start with the public order, and determine if there is law "of immediate application" ("de police et de sûreté) which protect crucial interests of a state. If there is, the law of immediate application must be applied – if not, engage in the process of choice of law.

Currie (1963) – father of the U.S.A. revolution of PIL (wrote in 1960's). "We would be better off without the choice of law rules." We should engage in a pure process of interest analysis, which state has the greatest interest in seeing its rules applied in resolution of a case. Where both jurisdictions have an equal interest, the forum law should apply.

Baxter (1963) – we should have no choice of law rules, but rather a process of comparative impairment (like Pillet – whose law suffers most from non-application). Don't just talk about interest, identify the damage caused by non-application. Engage in a comparative analysis – don't be a J exclusively of one's own jurisdiction (this is not very realistic in the U.S.A., where JJ are elected)

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In Mexico : no choice of law whatsoever, only territoriality original. In 2000, a reversion to total territoriality in the federal sphere. No application of foreign law in federal district courts (federal district in Mexico is like Washington, D.C. in the U.S.A.)

o In N. America, theoretically all JJ deciding international cases are federal, so supposedly neutral (they have multiple loyalties), so we can argue that we don't need neutral PIL rules, since the JJ can do so anyway. This is unlike Europe. So the argument for harmonization of the European PIL is most justified in terms of uniform interpretation… due to the judicial function in PIL. European JJ are biased in favour of local law.

In Québec: 3076 C.c.Q. – codification of Francescakis, first pay attention to local rule. Then, 3079 C.c.Q. : codification of Baxter, may apply a foreign rule if "legitimate and manifestly preponderant interests so require." So be prepared to prepare arguments of all sorts.

3081 C.c.Q. : public policy plays a role if the application of foreign law (in concreto) violates fundamental principles of Canadian law. So incompatibility of foreign law is assessed to abstractly (by looking at the law itself), but concretely (by applying it and looking at the results). Public order "as understood in international relations" – narrows down public order considerations even more.

o so foreign law is rarely rejected due to public policyo "bilateral rules" determine application of forum and foreign laws in the respective states – to ensure equality

in treatment of countries

9.2.2.8 Choice of Law à la Savigny: the Québec example (i) We start with the legal relationship. (ii) Then we look at the "connecting factors." (iii) Then we apply the substantive

law (which you need to prove using experts). This is à la Savigny. (iv) But exceptions exist (which even Savigny acknowledges) – brought about by public order.

o Public order is a notion that challenges the black-letter choice of law rules. Critics: if the substantive outcome of applying foreign laws is what matters, why don't we say it upfront.

E.g. : we determine that the legal relationship is status and capacity ("qualification of the problem"). We look at 3083 C.c.Q. which governs status and capacity. Then we establish the connecting factors: domicile of the party ("fixing of the connecting factor"). Substantive law: Ontario law (expert proof required). Possible exception: particular Ontario law is incompatible with the forum public order.

E.g. 3088 C.c.Q. : capacity to marry ante-nuptial domicile appropriate law subject to public order. E.g. 3097 C.c.Q. : rights in immovables lex re sitae, i.e. law of the site of the property (universal rule) appropriate law.

N.B. first the court ascertains its jurisdiction over the property, and if it does, it applies lex sitae. Why is this rule universal? No other jurisdiction can have any effect on the immovable situated in a particular jurisdiction. Immovables don't move.

E.g. 3126 C.c.Q. : tortuous/ delictual liability site of tort or delict, because we want to control behaviour in our forum, rather than in other jurisdictions (critics: should be place where wrongdoer comes from). Even in U.S.A., which abandoned choice of law rules in tort, this rule is used.

Next question: what if the question formulated in the forum is one of procedure, whereas the question formulated in the foreign jurisdiction is one of substance? Qualification of the problem is done by lex fori, but foreign law is taken into account.

9.2.2.9 Renvoi of domicile: selection of substantive law A deceased person from Italy, Signore X, who came to Canada as a young person, acquired Canadian citizenship, made a

large fortune, but then came back to Italy to live the rest of his days there, transferring his moveable assets to Switzerland. Glenn wrote an opinion for a Swiss court on the Canadian law on domicile. He talked about renvoi of the domicile of origin.

Currie, in his article, would institute a method of PIL which would eliminate the complexity of renvoi. What does renvoi mean? It can mean that the Italian substantive law will apply to the moveable property of Signore X.

3080 C.c.Q. prescribes exactly that ("Where, under the provisions of this Book, the law of a foreign country applies, the law in question is the internal law of that country, but not its rules governing conflict of laws." – Tetley wanted to eliminate this article!). Secondly, it can mean applying Italian PIL ("simple renvoi") (which may lead to application of substantive foreign law – remission, or to transmission, if the Italian PIL points to laws of a 3rd jurisdiction ). Thirdly, it can mean applying Italian rule on renvoi. Fourthly, a "foreign court theory" may be applied – forum court steps into Italian JJ's shoes and tries to do what an Italian J would do – any options above could be considered.

o Critics: this is a highly absurd.

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o We will probably never have to argue renvoi in our lifetimes. Renvoi is a Godzilla of PIL, a black swamp to be avoided

10.0 DOMICILE10.1.1.1 Trottier v. Rajotte (19??, Québec C.A.)Facts π is a married woman who was injured. According to the law of Québec at the time, she could not bring an action

herself – only a husband could do that. Her husband was born in Québec, and went to the U.S.A. to look for work. She was also born in Québec, and also went to the U.S.A. to look for work. They got married in Connecticut. Together, they returned to Québec, where π brought her action. Which law governs their marriage ( assets R of action)

Holding their domicile of origin governs their marriageReasons The marriage is governed by the law of matrimonial domicile (at that time, of the husband)

A domicile of origin is only lost when a new domicile is acquired – need (i) have a residence in the new place, and (ii) have intention to permanently settle there ("for the rest of natural life"). The settlement cannot be merely for the purpose of working

Case at bar: husband showed no proof of intention to remain in the U.S.A. forever. Neither did the wife (she was 17, and went to the U.S.A. to look for work.). The husband took some papers for American citizenship, but this does not prove intention to remain in the U.S.A. forever – dual citizenship is possible. So the couple's domicile of origin remains, and the law of Québec is applicable.

10.1.1.2 Fedeluk v. Fedeluk (1968, Alberta C.A.)Facts husband & wife are divorcing – which law to apply? Husband was born in Manitoba, and moved to Alberta,

where he married the wife. The facts are not that important here…Reasons A domicile of choice is a place where one makes his permanent residence with the intention to make it

permanent. "while residence is not the conclusive proof of domicile, it constitutes prima facie evidence of intent" when one moves from province to province within Canada, the proof of intent is much lighter than if one

moves to a foreign country form Canada Abandonment of a domicile of choice needs (i) intention to abandon and (ii) leaving the place

10.1.1.3 Udny v. Udny (1968, HL in UK)Facts Udny, originally from Scotland, established his residence in London, took a long-term lease of a house, and lived

there with his wife and children for 32 years. After his wife's death, he packed up, sold furniture, dismissed his servants, etc. and went to Boulogne. The question here is his son, born out of wedlock – not important.

Reasons Civil status (marriage, succession, majority/minority) is governed in England by the law of domicile Whenever a person changes his domicile wilfully, the domicile of origin lays latent, and is revived when

the chosen domicile is abandoned. An acquired domicile can be abandoned "by unequivocal intention and act" in this case, domicile of origin is

revived. It doesn't matter where a person goes after he abandons the domicile of choice – until he settles somewhere permanently, he is governed by the law of the domicile of origin

Case at bar: Udny had a domicile of choice in London, but once he left London (and his actions show clearly an intention never to come back), his original Scottish domicile was revived – whose law governs his civil status

Obiter Domicile of origin can be extinguished by law – e.g. by a death sentence, or by exile for life. It can never be destroyed by the will and act of the party

Re Flynn: (1968) "domicile of choice may be lost if there has been physical departure and if the intention to return has merely withered away"

Claus v. Sonderegger (1979) : Québec law does not accept reverter theory at the simple intention of leaving domicile.

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10.1.1.4 The Family Law Act (1986) A minor's domicile is that of his parents (if parents live together), or of his parent with whom he habitually resides, or that

of his lawful custodians, or, failing all that, "the jurisdiction with which the minor has the closest connection"

10.1.1.5 Glenn Comments Family, succession, types of testamentary dispositions which are permitted, etc. depend on domicile. It's one of the largest

and most important connection factors, but also one of most difficult ones. Contrasted with nationality (which one may not have) – more connected with real life.

Domicile was developed in the UK law 75 C.c.Q. : a person who is born acquires the domicile of origin immediately, which is the domicile of the tutor (i.e.

doesn't matter where a person is born – his domicile is that of the tutor). The domicile of origin never changes. The domicile of choice ("independent domicile") can change during lifetime. A child's independent domicile, if the two married parents live in the same place, will be the parents' domicile – or, if the parents have different domiciles – that of the parent with whom the child lives. 80 C.c.Q. "an unemancipated minor is domiciled with his tutor. Where the father and mother exercise the tutorship but have no common domicile, the minor is presumed to be domiciled with the parent with whom he usually resides unless the court has fixed the domicile of the child elsewhere."

The physical and the mental element are necessary to establish a domicile. When the child becomes achieves the age of majority, he acquires his own domicile. He may change his domicile of

choice. A domicile is not abandoned until a new one is acquired. One has a domicile at all times. It is the place with which one

has the closest connection. Being a student, or on an extended business trip does not mean that one relocated his domicile to the place of studies/work.

In 1994 the notion of reversion to the domicile of origin is rejected in Québec. Today the domicile of origin is irrelevant. Udney v. Udney : common law. UK law is much criticized. CmL makes it hard to lose a domicile of the native country –

the domicile clung to them as they worked abroad. Need an intention to reside somewhere permanently (or "for indefinite period" – which is a bit easier).

o SN: Rajotte is an old Québec case that uses UK jurisprudence.o Fedeluk : a Canadian finst case that makes abandonment easier, but it has little weight given that it's from finst.

A domicile of choice can be abandoned in CmL (cf. Québec law: the latest domicile sticks to the person until he finds a new domicile). When a domicile of choice is abandoned, there is a reverter to the domicile of origin, which may have LITTLE TO DO WITH YOU!

The place of litigation is crucial: you use the rules of the forum in deciding what the domicile is – doesn't matter what domicile we are talking about (e.g. we are trying to decide whether a party's domicile is Québec)

11.0 TORT & DELICT – CHOICE OF LAW11.1.1.1 Jensen v. Tolofson, Lucas v. Gagnon (1994, S.C.C.)Facts in both cases the π's were injured in car accidents which happened outside of their home provinces. In Tolofson,

the Δ-driver was the resident of the province where the accident occurred, in Gagnon, both π & Δ were residents of the same province, but not the one where the accident occurred.

Holding lex loci delicti applies in tortReasons N.B. Here the only question is application of law: jurisdiction of the π's province's court is not contested

Lex loci delicti applies because it gives certainty, predictability & conforms to parties' expectations Even though the Hague convention (which recognizes lex loci delicti) provides an exception to the delicti rule

for nationals of the same state, who injure each other in a foreign state and then litigate back home, lex loci delicti should always apply in Canada. It's a unified country, and Hague considerations aren't relevant here (e.g. that JJ shouldn't be burdened with foreign law where residents litigate at home, that countries must protect their sovereignty, that health system & insurance of the parties' state are affected by the jgmt). Also, it's a normal expectations of the parties to be governed by the law of the place they visit.

Crashing into a pole would lead to one sort of litigation, crashing into a co-resident would be a different story. This would be absurd.

If an exception to the delicti rule is made, there could be frivolous joinder of foreign 3rd parties just to avoid the exception. Litigation would be extended, and settlement not readily pursued due to unpredictability of law

An attempt of one province to impose liability for actions occurring within another would be un-constitutional

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Obiter historically, CmL adopted an old English rule (Phillips v. Eyre) which allowed using the forum law if (i) the wrong was actionable in the forum, and (ii) the wrong "was not justifiable" in the foreign state where it occurred – so as long as some legislation of the foreign state prohibits the wrong, it doesn't matter whether it has different rules re: litigation/compensation of that wrong

applying lex loci delicti in cases where the real wrong is the consequences of Δ's actions, or where the wrong is an interprovincial/international activity could be difficult

if lex loci delicti does not apply, a country may decide on liability btw 2 foreigners from an action which occurred in their (foreign) homeland – this is preposterous

11.1.1.2 New York choice of law in tort actions In Babock v. Jackson (1963, N.Y.) the N.Y. C.A. completely rejected the lex loci delicti. The "interests of jurisdictions"

doctrine was instead affirmed – i.e. the jurisdiction which has the greatest concern for the specific issue of litigation should have its law applied.

o In the case at bar, two New Yorkers, a passenger and a driver, got into a single-car accident in Ontario. The passenger sued the driver. Ontario precluded claims of a "gratuitous passenger" against the driver. Ontario's interest in litigation was judged unimportant, since Δ's were foreign, and the statute clearly wanted to protect Ontarian insurers against "fraudulent claims." N.B. if this were a negligence question, Ontario's interest would be important, since a province wants to control dangerous conduct according to its own rules

In Neumeier v. Kuehner (1972, N.Y C.A.) the same court overturned its absolute rejection of the lex loci delicti, because the litigation in multi-state car accidents became too unpredictable. In the matters of gratuitous passengers, the court re-introduced a limited version of lex loci delicti, with the following rules:

o When the passenger & driver are from the same state, the law of their state is applied (me: the exception to lex loci delicti)

o When the driver & passenger are from different states, lex loci delicti applies (sure-fire application in 2 situations – where Δ has immunity, or where π would receive compensation), unless:

o "it can be shown that displacing that normally applicable rule [lex loci delicti] will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants"

in the case at bar, the passenger was form Ontario and the driver from N.Y., and the accident occurred in Ontario. "Failure to apply Ontario's law would impair… the smooth working of multi-state system and produce great uncertainty for litigants," whereas it would not further N.Y. substantive law (the JJ here protected the N.Y. Δ using Ontario's stricter rules)

11.1.1.3 IPCO v. The Queen in right of Manitoba (1975, S.C.C.)Facts Δ's are chlor-alkali plants which released mercury into waterways from Saskatchewan and Ontario. The water

flowed to Manitoba and polluted its fish. Manitoban fishermen lost business, and the province of Manitoba compensated them for their losses, pursuant to Fishermen's Assistance and Polluter's Liability Act (Manitoban statute). Manitoba now sues the Δ's. The Act expressly states that a polluter cannot rely on the fact that some other authority permitted it to pollute (in this case, it is assumed Ontario & Saskatchewan licensed Δ's to pollute)

Holding a provincial statute cannot undermine R's granted by other provinces – even if damage occurred in its local forum. Pigeon J: this is very different from a litigation btw private parties

Reasons When a provinces tries to nullify the effect of other provinces' licenses, it's unconstitutional. It is the same as if one province tries to enforce its law in another province – it has no R to do so

Applying the old English rule of Phillips v. Eyre, the tort of pollution IS justifiable in the foreign province, so the test for applying the local (Manitoban) law is not satisfied.

Pigeon J Neither the Manitoban statute, nor the Ontarian & Saskatchewanian licenses are constitutional. All of them are ultra vires, because inter-provincial pollution is a federal matter.

Dissent Laskin J

Ontario & Saskatchewan, even if they licensed Δ's to pollute, cannot have an effect extraterritorially and protect its residence from liability elsewhere

lex fori delicti must apply here. Plus, Manitoba clearly has a greater interest to have its statute applied than Ontario & Saskatchewan.

Manitoba's statute clearly has an intra-territorial effect – protecting its property and residents

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11.1.1.4 Miller v. White (1997, District Court, Vermont)Facts Δ & π, a passenger and a driver from Vermont, were in a single-vehicle accident in Québec. The passenger sued

the driver. The Δ wants the Québec's no-fault scheme to apply, the π wants to sue in tort.Holding Vermont law appliesReasons In tort, determination of law depends on (i) policies and interests of the two jurisdictions (ii) the needs of the

international system. These considerations apply to each issue, even in a single case (i.e. certain law can apply to one issue of the case, different law can apply to the other issue). E.g. negligence is often decided on lex fori delicti, whereas damages are determined with local law

In case at bar: Québec has little interest in this action: its no-fault scheme is for the residents who pay taxes. If two foreigners are not compensated under this scheme, it suffers no harm – in fact, it benefits, since Québec would have to subrogate the π's action and go after the Δ itself. Plus, C.c.Q. provides that where both parties are citizens of the same state, their law applies

Vermont, on the other hand, has great interest to compensate π, since his losses (social & economic repercussions form the accident) arise in Vermont. Plus, it wants to deter the dangerous conduct of its citizens (something that no-fault scheme fails to do)

International sphere: Hague convention provides an exception to lex fori delicti when all parties reside in the same state

11.1.1.5 Québec's no-fault automobile insurance Québec no fault auto insurance: can't sue for any damage caused by an automobile, just recover according to the regime of

automobile insurance, a low amount of money. This is direct regulation of foreign activity, displaces all litigation and all choice of law. Can't sue in Québec for an auto accident no matter where the accident took place, no right of action.

You are a Québec resident and you have an accident outside of Québec. You are injured and therefore the π. You recover the amount that you would recover under the Québec regime if you sue in Québec. The Quebec regime has extra-territorial application. But the Québec recovery might be low. You might therefore want to sue where the accident happened to recover an additional amount. The lex fori delicti would apply in that case. You can therefore recover providing that you can establish fault.

You are a Québec Δ and hit someone abroad. You get back into Quebec to find out that you have been sued in the loci delicti or elsewhere. You want to make sure that you are covered by your insurance company. The insurance company might assume the defence. The Quebec regime applies to Quebec Δ's and π's extra-territorially. But the coverage extends to the minimal amount of coverage required in the place of accident. You can buy a supplementary package in Quebec.

Exception in Québec to the application of lex fori delicti : both parties are from the same forum which is not Québec

11.1.2 Choice of law in tort and delict : rules, direct regulation & Constitution Potential resolutions: choice of law rules, the Constitution, direct regulation (e.g. Québec no-fault rules – Québécois

can sue abroad for the excess of damages that are not recoverable under Québec scheme)

11.1.2.1 Choice of law rules In CmL Canada, lex loci delicti applies, with no exceptions (Tolofson). Legal certainty and most strictness. Mexico: same thing, but it's impossible to find the discussion of this anywhere! The reason is probably because no one

sues in delict in Mexico – it's a developing country, lives are cheap! U.S.A. : 10 states which adhere to lex loci delicti, contrary to what the others are doing (the U.S.A. "revolution" of choice

of law rules) Another choice of law rule: regulation, e.g. in Québec 3126 C.c.Q. - lex loci delicti applies except where Δ & π are from

the same forum, or where two parties are completely connected to the place of their origin. N.Y. – reaches the same result as Québec (Neuenmeier). The rest of U.S.A. – no rules, only consideration of which forum has the greatest interest in having its law applied (Babcock). European Union – "Rome II." Currently, lex loci delicti in UK, France, Germany, etc., with some states having exceptions for parties having the same domicile. So, why create the unified document "Rome II" if each state currently has lex loci delicti? For situations where there is doubt as to where the tort occurred (e.g. transnational travel).

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In spite of huge diversity of PIL within N. America, it still functions! Uniformity is not required, even with the common market – the diversity can be remedied by Constitution. The national Constitution can always be impleaded as a last resort. But Constitution is very rarely invoked…

Neuenmeier: the law of the place has by far the greatest interest of governing conduct. But for compensation issues, the personal law of the parties (from the same domicile) is most appropriate. In manufacturing cases – the law of the place where the injury to the π occurred (like in Moran) is most appropriate; same thing in 4/5 of U.S. cases. In Québec, the π can choose either the law of the place of manufacture, or of the place where the product was acquired (3128 C.c.Q.)

o Even in CmL Canada, the common domicile rule is applicable. It's most logical. o So in the result, there is not as much diversity. Insurance co. in N. America can predict the outcome. But you

must litigate first.

11.1.2.2 Direct Regulation If a Québécois sues a foreigner, the Québec government subrogates the action, and takes the money (the amount it paid to

the π) Question: will SAAQ reduce its subrogation by the amount of lawyer fees? Currently, a N.Y. firm is looking for the answer (a flyer is hanging somewhere in law school, inviting McGill students to research an answer for $100 USD). Glenn: the answer is probably not written anywhere, but it's an unwritten rule.

o This money (art. 7 of SAAQ) can be substantial – e.g. damages, health, and even incremental payments for π's life. The π sues for excess and pockets all the money that remains after SAAQ subrogation.

o Is there a conflict of laws here? Glenn: doesn't appear to be! Both countries would probably allow the reduction of subrogation by the amount of lawyer fees. The N.Y. lawyer is simply looking for some solid support.

o Lex loci delicti applies here – N.Y. law applies to the action. What law applies to subrogation? The law of Québec (SAAQ)? There are cases that have said the reverse – that lex loci delicti applies to subrogation, too. Therefore SAAQ body might have to adhere to the N.Y. law on subrogation.

o What law governs fees? That of a K, which the client enters into with the lawyer. N.Y. law would control the contracts concluded there… but SAAQ is not a party to the K…

11.1.2.3 Constitution Constitution is the last resort. In each of the 3 federations in N. America there are choice of law rules for federal levels. IPCO : Manitoba makes a strict-liability rule for pollution. Ritchie J : this is essentially a tort case, and conflict of laws is

applicable. Lex fori rule prevailed at the time. Manitoba's direct regulation does not have to apply outside of it. Glenn: how can judge-made PIL rules prevail over legislation? Ritchie J's position is unsupportable.

o Pigeon J : Manitoba legislation cannot prevail – this is a federal matter since this is an interprovincial trade issue. Glenn: nothing in the Constitution supports this.

o Laskin J (dissent): the best argument. He interprets "extraterritoriality" mentioned in our Constitution. We are dealing with a Constitutional problem – this is not PIL. Manitoba, through legislation, has ousted PIL, so the only way to challenge it is through Constitution.

92(13) Constitution, or due process clause, or 121 Mexican Constitution – provinces cannot legislate extraterritorially

o Extraterritoriality, he says, can be dealt with through "choice of law principles" – relation of provinces to one another (this is a classical "statutist" doctrine). The "principles" are Manitoba's predominant interest – he uses an interest analysis! Neither Saskatchewan, nor Ontario can claim any interest. "In other words, the tort has been committed in Manitoba" – he uses interest analysis to locate the tort. Manitoba's fisheries would be completely destroyed if the other provinces pollute its waters – Manitoba's rules are 100% impaired. The impairment to Ontario's legislation (which relieves polluters of strict liability) is only limited with respect to activities affecting Manitoba – so the integrity of Ontario's legislation is preserved.

Here, all three methods (choice of law, Constitution, legislation) are important

11.1.2.4 Additional Points Qualification of a claim: there may be family, or K-ual relations (e.g. is a marriage effective, is a K effective) – which are

dealt with rules other than the PIL of delict. Must interpret the rules relevant to a particular case. Some relationships are sui generis.

Some people are upset about N. American differences in choice-of-law rules. Glenn thinks that an "interpretation analysis" is the best – you should interpret a law, not as a fact, but as a normative device! What is the purpose of law? By

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answering this question, you decide whether a law should apply or not. Laws are not "brute, dumb animals" :) So it should be "lex loci principle"

Constitution can be used, even in torts, as it was in IPCO. It can be used to control extraterritoriality of provincial legislation, but it can also control state/provincial PIL ! State JJ decide where state law applies. But U.S.A. federal courts have repeatedly refused to "constitutionalize" state law conflicts. Horizontal relations btw states are unaffected by the Constitution (even though state courts are subject to federal review). Same thing in Canada.

12.0 CONTRACT – CHOICE OF LAW lex loci actus : the law of the place where a legal act takes place. In private international law, this law governs such

questions as whether or not property in a bill of exchange or promissory note passes to the transferee and the formal validity of an assignment of an intangible movable (e.g. a share in a trust fund).

lex loci solutionis : the law of the place where a contract is to be performed or a debt is to be paid. In private international law as applied in England, the lex loci solutionis governs the due date for payment of a bill of exchange but does not usually govern matters relating to the law of contract

12.1.1.1 Conflict of laws: Mexico and U.S.A. (Bayitch & Siqueiros) In Mexico lex loci actus serves as a choice of law rule (federal Civil Code). The effects of K's entered into abroad are

governed by lex loci solutionis. Mexican courts seem reluctant to permit parties to choose controlling legal system. But caselaw appears to say the

opposite. In general, K-ual parties will always be subjected to public policy and interests of 3rd parties (if prejudicial). Also,

whenever Mexican JJ doubt the compatibility of law of parties' choice & Mexican law, they apply lex fori. E.g. there are imperative or prohibitive statutes in regard to marriage K.

In U.S.A., lex loci actus and solutionis apply. If there is an express or implied agreement of parties to chose foreign law, this choice is respected subject to public policy (although some jurisdictions also require a close relation btw chosen law and K)

o Prohibitions in lex fori or lex loci actus may affect the freedom of K. In K's involving restrictions as to ownership of land, lex rei sitae may apply.

12.1.1.2 Vita Food Products v. Unus Shipping Co. (1939, C.A., Nova Scotia)Facts Δ, owner of a ship (incorporated in Nova Scotia), contracted with π to deliver herring to New York. The fish was

loaded in Newfoundland, and the bill of lading was signed there. The bill of lading provided that the ship is exempted form any negligence liability, and that the K "shall be governed by English law". The captain of the ship was negligent, and herring was damaged. But the laws of Newfoundland provide that any such exemption clause is void.

Holding English law applies – Newfoundland law doesn'tReasons "where there is an express statement by the parties of their intention to select the law of K, it is difficult to see

what qualifications are possible, provided the intention expressed is bona fide and legal, and provided there is no reason for avoiding the choice on the ground of public policy"

connection of K to the chosen law is not necessary it doesn't matter whether the K would be illegal in Newfoundland. We only consider public policy of the

forum where the action is tried (cf. where the K is made). If public policy allows the K, and the K is valid under the law chosen by the parties, then there is no problem.

12.1.1.3 Lauritzen v. Larsen (1953, Circuit Court, U.S.A.)Facts π is a Danish sailor who was employed by a Danish ship. He signed his K in New York, and the K provided that

it would be governed by Danish law. Π was injured on the ship while in Cuba. Argues that N.Y. law should apply since the K was signed there. Which law applies?

Holding law of the flag applies – i.e. Danish

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Reasons Here lex loci delicti is of little use, since we are talking about maritime law. Ships travel everywhere, including the high seas which belong to no one.

Law of the flag is appropriate. Each nation determines how the activities on its ships are regulated, and this is useful

In some cases, U.S.A. allowed its law to apply to its citizens aboard a foreign ship. Not applicable here. Sometimes courts enforced the law of the ship owner (because U.S.A. ship owners tended to register a ship under a foreign name to avoid stricter U.S.A. law). Does not apply here either.

Lex loci contractus is inapplicable here, because the issue at bar is a tort. Tortuous liability is not the same as contractual obligations. Moreover, if lex loci contractus were applicable, then each sailor would be governed by the law of the place where he signed it – which is a fortuitous circumstance among sailors odd results.

Π pleads that it's too hard for π to go back to the foreign forum to plead his case. But, firstly, this is not necessary (U.S.A. JJ can apply Danish law), and secondly, Denmark provides an expedient process of compensating sailors under its law

Π argues that he's entitled to invoke U.S.A. law because U.S.A. can assume jurisdiction over Δ. That's not true!

12.1.1.4 R. v. Thomas Equipment Ltd. (1979, S.C.C.)Facts π is an Albertan retailer of farm equipment, Δ is its supplier from N. Brunswick. Following the provisions of the

Albertan Farm Implement Act, π demanded that Δ buy back all its unused farm equipment. The Δ refused, and was charged with violation of the Act and fined. The K btw the parties provided that it would be governed by the law of N. Brunswick. Does the law of the K overcome Albertan legislation?

Holding by contracting with π, Δ effectively carried on business in Alberta, therefore he must submit to Albertan laws. Law of K has nothing to do with this.

Reasons The law of K applies to rights and duties arising out of the K itself Meanwhile, the K between the parties is such that Δ effectively does business in Alberta: it supplies its goods

to π with the intention of its re-sale in Alberta, and promotion of its goodwill in Alberta. The performance of the K is in Alberta.

So Δ's liability arises under its conduct in Alberta (figuratively speaking…) This statutory obligation is completely independent of any K-ual provisions. Plus, the Δ's action is not part of rights or obligations under the K

12.1.1.5 Automatic Systems v. Bracknell Corp. (1994, C.A., Ontario)Facts π & Δ entered into K of subcontracting in Ontario. The K provided that any claims arising under it would be

arbitrated in Missouri. Π & Δ had a disagreement, which was not resolved, leading to π's registering a lien on the property of Δ under Construction Lien Act (CLA). To enforce the lien, π instituted a court action against Δ and the main contractor – which Δ wants to stay due to the presence of the arbitration clause. But CLA prohibits contracting out of its provisions.

Holding arbitration & lien litigation can co-existReasons The parties can arbitrate on their differences, but the lien action still holds. The action against the main

contractor remains alive and well. The CLA expressly accommodates parallel arbitration There is no problem with the parties' choice of place and law for the arbitration. No significant differences

btw Missouri & Ontario Lien Acts. Anyway, the Act is not in dispute in the arbitration – only the contractual matters are.

The action is stayed (to allow for arbitration), but it may be suspended at the request of any parties whose interest might be affected by this.

12.1.1.6 Choice of law in Contracts Substantive validity of K is governed, in principle, by the law chosen by the parties – in all 3 countries of N.

America (from late 20th C)o Though in Mexico, until 1988, the traditional principle of territoriality was strong (K formed in Mexico had to be

governed by Mexican law). This attitude was prevalent across Latin America, as well as Russia, China, etc.

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Nowadays, in Federal Civil Code (1988), art. 13.5: "legal consequences of acts and contracts shall be governed by the law of the place of their performance [old Mexican law] unless the parties have validly designated a different law"

o 1995 Mexico Convention on choice of law in K – autonomy of parties in K affirmed.o U.S.A. : Laurenzen v. Larson established autonomy of K-ual parties

In Europe, lex mercatori always applied. In the 19th C national courts took over merchant cases, and that's when the principle of party autonomy (officially) arose in Europe.

Battle of doctrines re: interpretation of party choice: subjectivists v. objectivists. Subjectivists believe that K is the law that parties create for themselves, and therefore, K is not dependent on law outside of it. Any national law can be used to govern a K. The logical extension of this is that parties can choose a "contrat sans loi" – "this K is not subject to any (state) law" The enforcement and interpretation of such a K could be done by an arbitrator, or even a State court. Also, no physical or any other connection btw K and a national law is required.

o UNIDROIT is a K law which is sufficient for any K in the world. Any party can know exactly what this law is – unlike national laws. Lando Commission is the same. Such non-state laws provide perfect legal certainty.

Objectivists : a law (of a geographical place) that is objectively connected to the K should apply. If the parties have a choice of law clause, it must be reviewed by the court, to make sure that the law is objectively connected to the K. Contrat sans loi is impossible. Objectivists think that subjectivists just want to avoid state law to reach their decadent goals!

Today, no jurisdiction is at objectivist or subjectivist extreme in all questions of contract. In the European Union, Rome I explicitly recognizes contrat sans loi – the same people who were in Rome contributed to writing UNIDROIT, they see no harm in it. The general grip of state law is loosening in the area of K.

12.1.1.7 K-ual choice of law in specific jurisdictions Québec : is the most modern PIL jurisdiction. The language is quite radically subjectivist. 3111 C.c.Q. : a juridical act, whether or not it contains any foreign element, is governed by the law expressly designated in

the act or the designation of which may be inferred with certainty from the terms of the act. A juridical act containing no foreign element remains, nevertheless, subject to the mandatory provisions of the law of the country which would apply if none were designated. The law of a country may be expressly designated as applicable to the whole or a part only of a juridical act.

o Very subjectivist : "is governed whether or not it contains any foreign element" – you can choose any law whatsoever for a K that is, for example, concluded in Québec btw two Québécois.

o Even a marriage K can be chosen to be governed by a foreign law.o Québec is compatible with K sans loi, and UNIDROIT and any other non-state law. 3111(3) C.c.Q. – "dépeçage"

– you can subject a K to 2 laws! (e.g. this part of K is governed by the law of X, this part is governed by the law of Y)

o 3112 C.c.Q. if law chosen by the parties invalidates the K, JJ will not invalidate the K, because the parties clearly intended to conclude the K. JJ apply the law that would have been applied had the choice-of-law clause not existed.

CmL Canada : Vita Foods (an admiral law case, 1930). The case established that parties are entirely free to choose the law governing their K. Even though English law (which was chosen) had no connection to the K. But the choice is subject to any provisions of public policy. Thomas Equipment – dépeçage!

o So CmL Canada agrees that we should start from radical subjectivists, but then ask whether a particular legislative policy should override party choice.

U.S.A . : historical principle of lex loci contractus (there are 10 states that still adhere to it). Laurenzen v. Larsen : a N.Y. K entered into by a Dane, with other Danes, with a Danish law choice clause. Case establishes that the parties are entitled to choose a K which is not lex loci contractus. But the parties had chosen Danish law, which had a major connection with the K – what if there was no connection? So as a result, U.S.A. PIL is different! The law chosen by the parties must have a substantial connection to the K. Is this simply the force of precedent of Laurenzen v Larsen ?? All Larsen did was overrule the lex loci contractus rule.

o N.Y. state has a statue: "parties can choose N.Y. law for K of more than $250K" – this is for foreigners. When foreigners choose N.Y. law they can plead (in their own courts) that it applies, and it doesn't require being objectively connected to their K. That is the reason it was passed. Under $250K – can't choose N.Y. law?? Not clear why U.S.A. clings to objective connections and "groping for contacts" (lol) despite being so liberal.

Mexico : the K "is chosen by law of the parties" – but absolutely no jurisprudence or doctrine supporting this !!!

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12.1.1.8 K governed by "people's law" – no choice of law clause Note: sometimes K-ual provisions can give rise to implicit choice of law. The law which has the closest connection is applied. Québec : 3113 C.c.Q. in the absence of choice-of-law clause, the law of the place of the party who furnishes the

"characteristic prestation" – something unique (NOT paying money), e.g. providing the object which is leased or sold, providing services – is applied. This was borrowed from Swiss law. The main justification for this is ensuring some stability in PIL. Also, it seems that the party performing the "characteristic" prestation would care more which law applies, since he's performing the service, manufacturing the goods, etc…

o In other cases, direct regulation of PIL (also called "material regulation") is used. This is a process of dépeçage. Unlike K, you can discern legislative intention – and sometimes such an intention is to limit party freedom of choice – e.g. consumer protection, employment, insurance K, etc. 3117 C.c.Q. : consumer protection (the level of protection is guaranteed by the law of the residence of consumer, the rest is open to party choice, e.g. choosing law that provides more protection than domestic law), 3118 C.c.Q. : protection of employees (same as consumers), 3119 C.c.Q. : insurance K (no foreign law allowed). These are specific limitations, which are exceptions to the radical subjectivism (very sophisticated!). AND: 3111(2) C.c.Q . : "a juridical act containing no foreign element remains, nevertheless, subject to the mandatory provisions of the law of the country which would apply if none were designated" – choice of law does not allow parties to evade provisions of Québec law which are mandatory in Québec for Québec K's – this is a public order exception built-in. So parties are totally free to ignore any suppletive provisions governing K's in Québec – save the "mandatory" provisions (connected to public order).

o AND : 3076 C.c.Q. 3079 C.c.Q. : all choice of law rules are subject to appreciation to any mandatory legislative intentions, either in Québec or in a 3rd country.

CmL Canada : Thomas Equipment (S.C.C.). The evil farm equipment manufacturers sell stuff to innocent and hardworking Albertan farmers and retailers – of course, with the N. Brunswick choice of law. Alberta wants to protect its farmers and retailers. When it's a bad harvest year and a farming retailer has purchased lots of equipment that is, of course, not wanted – the manufacturer is required to re-purchase its own equipment. N. Brunswick evil manufacturer resists, relying on the choice-of-law clause.

o If this were in Québec: verify choice of the parties against the general legislative intention of the law of the forum! This decision is therefore perfectly consistent with Québec law (3076 C.c.Q.).

o Does this legislation apply to vendors who are not Albertan? No, it doesn't say that anywhere! But S.C.C. ignores that! But: it regulates the sale in Alberta and it's clear that there are no manufacturers of farm equipment in Alberta. So if we didn't assume that it applies to out-of-province manufacturers, we'd totally destroy the legislation. Comparative impairment of competing policies – Albertan would be destroyed, N. Brunswick policy would be minimally impaired (only to the extent that it doesn't apply to Alberta). Glenn: comparative impairment is quite appropriate. Reasonableness is also assessed, "le but social" is part of the assessment – not just the interest of provinces.

U.S.A. "Dormant Commerce Clause" – the courts would not allow one state to regulate commerce through protective legislation – that's a federal matter to deal with. So, a constitutional matter.

In Thomas Equipment, constitution was also inevitably looked at – but it didn't add anything to the discussion. Canada doesn't have a "Dorman Commerce Clause." This is still PIL, not a constitutional question – the Constitution will allow to legislate extra-territorially where the objective is valid, and the failure to do so would totally annihilate the legislation.

Mexico: we don't know!! No relevant constitutional premises. We can guess that the same process would be applied

13.0 SECURITY ON MOVABLE PROPERTY13.1.1.1 Reid v. Favor (1955, SC, Québec)Facts Ontarian π bought a car from Québécois Δ, and then re-sold it to one Calder (in Ontario) with the warranty that

the car is free of encumbrances. The car was then revendicated by the Public Finance Corporation (which had the car as a security for payment from a 4th party – in Ontario). The π's were forced to pay the Corporation so that Calder could keep the car. The Δ's refused to reimburse π's.

Holding Québec law governs security on the car, since Ontario law was not pleadedReasons "No proof was made of the law of Ontario respecting the registration of liens or any other matter. No

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proceedings were taken in Ontario by plaintiffs to contest the seizure or urge their rights under their contract" "As no proof whatever was made of the law of Ontario, the Court must assume, for the purposes of this case,

that the law of Ontario is the same as the law of Quebec. This doctrine of presumed identity does not however extend to statutory law"

according to the law of Québec, Calder was not obliged to give up possession of the car, and the revendication could be successfully attacked. Hence, π didn't have to pay anything to the Public Finance Corporation and consequently cannot recover anything from Δ

13.1.1.2 Personal Property Security Act (Ontario, 1990) Sec. 5(1) : "validity, perfection and effect of perfection or non-perfection of (a) security interest in goods and (b)

possessory security interest in a security, an instrument, a negotiable document of title, money and chattel paper, shall be governed by the law of the jurisdiction where the collateral is situated at the time the security interest attaches."

Sec. 5(5) : "where goods brought into Ontario are subject to an unpaid seller's R to revendicate or to resume possession of the goods under the law of Québec or any other jurisdiction, the R becomes unenforceable in Ontario 20 days after the goods are brought into Ontario unless the seller registers a financing statement or repossesses the goods within that 20-day period."

Sec. 6(1) : "subject to s. 7, if the parties to a security agreement … understand, at the time the security interest attaches, that the goods will be kept in another jurisdiction, and the goods are removed to that other jurisdiction … within 30 days after the security interest attached, the validity, perfection and effect of perfection & non-perfection of the security interest shall be governed by the law of the other jurisdiction."

Sec. 7(1) : "validity, perfection, [etc.] of (a) security interest in an (i) intangible or (ii) goods that are of a type that are normally used in more than one jurisdiction, and (b) non-possessory security interest in a security, instrument, [etc.], shall be governed by the law of the jurisdiction where the debtor is located at the time the security interest attaches."

Sec. 7(3) : "…debtor shall be deemed to be located at the debtor's place of business [or] chief executive office if there is more than one place of business, and otherwise at the debtor's principal place of residence."

Sec. 8(1) : (a) "procedural matters affecting the enforcement of the R to a secured party in respect of collateral other than intangibles are governed by the law of the jurisdiction in which the collateral is located at the time of the exercise of those R's." (b) intangibles: by the law of the forum (c) "substantive matters affecting the enforcement of the R's of a secured party against collateral are governed by the proper law of the contract btw the secured party and the debtor." clarify this part

Sec. 8(2) : "… a security interest shall be deemed to be perfected under the law of a jurisdiction if the secured party has complied with the law of the jurisdiction with respect to the creation and continuance of a security interest..."

13.1.1.3 Glenn Comments Law of the situs prevails. For immovables, it's a beautiful rule! Lex re sita is simple and straightforward. The same

applies to movables – but movables move! Conflicts in time : where and when is the situs?? The general solution is the time of each transaction – e.g. attaching security in jurisdiction X – X will govern even in jurisdiction Y. But a new jurisdiction can annul the security if the thing is sold to bona fide purchasers ("marché ouvert" jurisdiction, movables can be "washed" there!). UCC and C.c.Q. deal with this problem: give the possibility of perfecting the security interest in the new jurisdiction if you register it within a number of days (e.g. 60 days).

Exams are at OUS. Exams are on large questions, "macro perspective." Another is an essay question – comparison of European & N. American perspective! Three questions in total: 2 fact patters, 1 essay. Equal value question. Three hours.

General jurisdiction – sue for anything if you do business in the forum. Québec – no. CmL Canada – maybe U.S.A. – long-arm statutes are like head of jurisdiction Salami method – interpreting head of jurisdiction : you slice off a cause of action and argue it as a head of actionCosts are within discretion of courts, and probably cannot be derogated from by a K

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Table of Contents: - LSA - AED :: Accueillsa.mcgill.ca/pubdocs/files/privateinternationallaw/288... · Web viewNo bar exam, although big exam at the end of law school Traditional