Views
The Role of Foreign Enforcement Proceedings in Forum Non Conveniens
The doctrine of forum non conveniens, in looking to identify the most appropriate forum for the litigation, considers many factors. Two of these are (i) a desire to avoid, if possible, a multiplicity of proceedings and (ii) any potential difficulties in enforcing the decision that results from the litigation. However, it is important to keep these factors analytically separate.
In the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) Justice Abella noted that “enforcement concerns would favour a trial in Israel, in large part because Haaretz’s lack of assets in Ontario would mean that any order made against it would have to be enforced by Israeli courts, thereby raising concerns about a multiplicity of proceedings” (para 142). Similarly, Justice Cote concluded (paras 82-83) that the fact that an Ontario order would have to be enforced in Israel was a factor that “slightly” favoured trial in Israel.
Justice Abella has arguably conflated the two factors rather than keeping them separate. The concerns raised by a multiplicity of proceedings tend to focus on substantive proceedings rather than on subsequent procedural steps to enforce a judgment. Courts rightly try to avoid substantive proceedings in more than one jurisdiction that arise from the same factual matrix, with one of the core concerns being the potential for inconsistent findings of fact. Of course, enforcement proceedings do involve an additional step that is avoided if the judgment can simply be enforced locally. But that, in itself, should not be grouped with the kinds of concerns raised by multiple substantive proceedings. It will be unfortunate if subsequent courts routinely consider contemplated foreign enforcement proceedings as raising a multiplicity of proceedings concern.
Justice Cote (with whom Justices Brown and Rowe agreed) did not conflate enforcement proceedings and the concern about multiplicity. However, it should be noted that Club Resorts, which she referenced on this point, stated (para 110 that “problems related to the recognition and enforcement of judgments” is a relevant factor for forum non conveniens. The stress there should be on “problems”. If it can be anticipated that there may be problems enforcing the judgment where the assets are, that is an important consideration. But if no such problems are anticipated, the mere fact that enforcement elsewhere is contemplated should not point even “slightly” against the forum as the place for the litigation. In Haaretz.com the judges who consider the enforcement factor did not identify any reason to believe that enforcement proceedings in Israel would be other than routine.
The dissenting judges (Chief Justice McLachlin and Justices Moldaver and Gascon) properly separated these two factors in their analysis (paras 234-237). They did not treat enforcement proceedings as part of the analysis of a multiplicity of proceedings. On enforcement, their view was that in defamation proceedings it is often sufficient just to obtain the judgment, in vindication of the plaintiff’s reputation, and that enforcement can thus be unnecessary or “irrelevant” (para 236). Justice Cote strongly disagreed (para 83). Leaving that dispute to one side, the dissent could have also made the point that this was not a case where any “problems” had been raised about enforcement in Israel.
Staying Proceedings, Undertakings and “Buying” a Forum
One of the points of interest in the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) concerns the appropriateness of the plaintiff’s undertaking to pay the travel and accommodation costs of the defendant’s witnesses, located in Israel, to come to the trial in Ontario. The defendant had raised the issue of the residence of its witnesses as a factor pointing to Israel being the more appropriate forum. The plaintiff, one presumes, made a strategic decision to counter this factor by giving the undertaking.
The motions judge and the Court of Appeal for Ontario both considered the undertaking as effective in reducing the difficulties for the defendant in having the litigation in Ontario. However, the undertaking was viewed quite differently by at least some of the judges of the Supreme Court of Canada. Justice Cote, joined by Justices Brown and Rowe, stated that “consideration of such an undertaking would allow a wealthy plaintiff to sway the forum non conveniens analysis, which would be inimical to the foundational principles of fairness and efficiency underlying this doctrine” (para 66). Justice Abella, in separate reasons, stated “I think it would be tantamount to permitting parties with greater resources to tip the scales in their favour by ‘buying’ a forum. … it is their actual circumstances, and not artificially created ones, that should be weighed” (para 140). The other five judges (two concurring in the result reached by these four; three dissenting) did not comment on the undertaking.
Undertakings by one party in response to concerns raised by the other party on motions to stay are reasonably common. Many of these do involve some financial commitment. For example, in response to the concern that various documents will have to be translated into the language of the court, a party could undertake to cover the translation costs. Similarly, a party might undertake to cover the costs of the other party flowing from more extensive pre-trial discovery procedures in the forum. Travel and accommodation expenses are perhaps the most common subject for a financial undertaking. Is the Supreme Court of Canada now holding that these sorts of undertakings are improper?
The more general statement from Justice Abella rejecting artificially created circumstances could have an even broader scope, addressing more than just financial issues. Is it a criticism of even non-financial undertakings, such as an undertaking by the defendant not to raise a limitation period – otherwise available as a defence – in the foreign forum if the stay is granted? Is that an artificially-created circumstance?
Vaughan Black has written the leading analysis of conditional stays of proceedings in Canadian law: “Conditional Forum Non Conveniens in Canadian Courts” (2013) 39 Queen’s Law Journal 41. Undertakings are closely related to conditions. The latter are imposed by the court as a condition of its order, while the former are offered in order to influence the decision on the motion. But both deal with very similar content, and undertakings are sometimes incorporated into the order as conditions. Black observes that in some cases courts have imposed financial conditions such as paying transportation costs and even living costs during litigation (pages 69-70). Are these conditions now inappropriate, if undertakings about those expenses are? Or it is different if imposed by the court?
My view is that the four judges who made these comments in Haaretz.com have put the point too strongly. Forum non conveniens is about balancing the interests of the parties. If one party points to a particular financial hardship imposed by proceeding in a forum, it should be generally open for the other party to ameliorate this hardship by means of a financial undertaking. Only in the most extreme cases should a court consider the undertaking inappropriate. And perhaps, though the judges do not say so expressly, Haaretz.com is such a case, in that there were potentially 22 witness who would need to travel from Israel to Ontario for a trial.
Supreme Court of Canada: Israel, not Ontario, is Forum Conveniens for Libel Proceedings
The decision to stay proceedings under the doctrine of forum non conveniens is discretionary, which in part means that appeal courts should be reluctant to reverse the decisions of motions judges on the issue. It comes as some surprise, therefore, that the Supreme Court of Canada has disagreed with not only the motions judge but also the Court of Appeal for Ontario and overturned two earlier decisions denying a stay. In Haaretz.com v Goldhar (available here) the court held (in a 6-3 decision) that the plaintiff’s libel proceedings in Ontario should be stayed because Israel is the clearly more appropriate forum.
The decision is complex, in part because the appeal also considered the issue of jurisdiction and in part because the nine judges ended up writing five sets of reasons, four concurring in the result and a fifth in dissent. That is very unusual for Canada’s highest court.
The case concerned defamation over the internet. The plaintiff, a resident of Ontario, alleged that an Israeli newspaper defamed him. Most readers of the story were in Israel but there were over 200 readers in Ontario.
On assumed jurisdiction, the court was asked by the defendant to reconsider its approach as set out in Club Resorts (available here), at least as concerned cases of internet defamation. Eight of the nine judges refused to do so. They confirmed that a tort committed in Ontario was a presumptive connecting factor to Ontario, such that it had jurisdiction unless that presumption was rebutted (and they held it was not). They also confirmed the orthodoxy that the tort of defamation is committed where the statement is read by a third party, and that in internet cases this is the place where the third party downloads and reads the statement (paras 36-38 and 166-167). Only one judge, Justice Abella, mused that the test for jurisdiction should not focus on that place but instead on “where the plaintiff suffered the most substantial harm to his or her reputation” (para 129). This borrows heavily (see para 120) from an approach to choice of law (rather than jurisdiction) that uses not the place of the tort (lex loci delicti) but rather the place of most substantial harm to reputation to identify the applicable law.
On the stay of proceedings, six judges concluded that Israel was the most appropriate forum. Justice Cote wrote reasons with which Justices Brown and Rowe concurred. Justice Karakatsanis disagreed with two key points made by Justice Cote but agreed with the result. Justices Abella and Wagner also agreed with the result but, unlike the other seven judges (see paras 91 and 198), they adopted a new choice of law rule for internet defamation. This was a live issue on the stay motion because the applicable law is a relevant factor in determining the most appropriate forum. They rejected the lex loci delicti rule from Tolofson (available here) and instead used as the connecting factor the place of the most substantial harm to reputation (paras 109 and 144). Justice Wagner wrote separately because he rejected (paras 147-148) Justice Abella’s further suggestion (explained above) that the law of jurisdiction should also be changed along similar lines.
The core disagreement between Justice Cote (for the majority) and the dissent (written jointly by Chief Justice McLachlin and Justices Moldaver and Gascon) was that Justice Cote concluded that the motions judge made six errors of law (para 50) in applying the test for forum non conveniens, so that no deference was required and the court could substitute its own view. In contrast, the dissent held that four of these errors were “merely points where our colleague would have weighed the evidence differently had she been the motions judge” (para 179) which is inappropriate for an appellate court and that the other two errors were quite minor and had no impact on the overall result (para 178). The dissent held strongly to the orthodox idea that decisions on motions to stay are entitled to “considerable deference” (para 177) lest preliminary motions and appeals over where litigation should occur undermine stability and increase costs (para 180).
Another fundamental disagreement between Justice Cote and the dissent was their respective view of the scope of the plaintiff’s claim. During the motion and appeals, the plaintiff made it clear that he was only seeking a remedy in respect of damage to his reputation in Ontario (as opposed to anywhere else) and that he was not going to sue elsewhere. The dissent accepted that this undertaking to the court limited the scope of the claim (paras 162-163) and ultimately it pointed to Ontario as the most appropriate forum. In contrast, Justice Cote held that the plaintiff’s undertaking “should not be allowed to narrow the scope of his pleadings” (para 23). It is very hard to accept that this is correct, and indeed on this point Justice Karakatsanis broke with Justice Cote (para 101) and agreed with the dissent. Why should the court not accept such an undertaking as akin to an amendment of the pleadings? Justice Cote claimed that “[n]either Goldhar nor my colleagues … may now redefine Goldhar’s action so that it better responds to Haaretz’s motion to stay” (para 24). But why should the plaintiff not be able to alter the scope of his claim in the face of objections to that scope from the defendant?
There are many other points of clash in the reasons, too many to engage with fully here. How important, at a preliminary stage, is examination of what particular witnesses who have to travel might say? What role does the applicable law play in the weighing of the more appropriate forum when it appears that each forum might apply its own law? Does a subsequent proceeding to enforce a foreign judgment count toward a multiplicity of proceedings (which is to be avoided) or do only substantive proceedings (on the merits) count? Is it acceptable for a court to rely on an undertaking from the plaintiff to pay the travel and accommodation costs for the defendant’s witnesses or is this allowing a plaintiff to “buy” a forum?
It might be tempting to treat the decision as very much a product of its specific facts, so that it does not offer much for future cases. There could, however, be cause for concern. As a theme, the majority lauded “a robust and careful” assessment of forum non conveniens motions (para 3). If this robust and careful assessment is to be performed by appellate courts, is this consistent with deference to motions judges in their discretionary, fact-specific analysis? The dissent did not think so (para 177).
News
Bonn University / HCCH Conference — The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook, 9 and 10 June 2023
Registration now open
Dates:
Friday and Saturday, 9 and 10 June 2023
Venue:
Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn
Registration:
sekretariat.weller@jura.uni-bonn.de
| Registration Fee: | € 220.- |
| Young Scholars Rate (limited capacity): | € 110.- |
| Dinner (optional): | € 60.- |
Registration: Please register with sekretariat.weller@jura.uni-bonn.de. Please communicate your full name and your postal address (for accounting purposes). Clearly indicate whether you want to benefit from the young scholars’ reduction of the conference fees and whether you want to participate in the conference dinner. You will receive an invoice invoice per email for the respective conference fee and, if applicable, for the conference dinner. Please make sure that we receive your payment at least two weeks in advance to the conference (26 May 2023 at the latest). After receiving your payment we will send out a confirmation of your registration. This confirmation will allow you to access the conference hall and the conference dinner.
Please note: Access will only be granted if you are vaccinated against Covid-19. Please confirm in your registration that you are, and attach an e-copy of your vaccination document. Please follow further instructions on site, e.g. prepare for producing a current negative test, if required by University or State regulation at that moment. We will keep you updated. Thank you for your cooperation.
Accommodation: We have blocked a larger number of rooms in the newly built hotel “MotelOne Bonn-Beethoven”, https://www.motel-one.com/de/hotels/bonn/hotel-bonn-beethoven/, few minutes away from the conference venue. The hotel’s address is: Berliner Freiheit 36, D – 53111 Bonn. The contact details are: bonn-beethoven@motel-one.com, +49 228 9727860. These rooms need to be booked on your own initiative and account by making reservation with the Hotel and by referring to „Universität Bonn“. These rooms will be blocked until 22 April 2023 at the latest. As there will be several larger events in town at the date of our conference we recommend making arrangements for accommodation quickly.
Programme
Friday, 9 June 2023
8.30 a.m. Registration
9.00 a.m. Welcome notes
Prof Dr Matthias Weller, Director of the Institute for German and International Civil Procedural Law, Rheinische Friedrich-Wilhelms-Universität Bonn;
Dr Christophe Bernasconi, Secretary General, HCCH
Moderators: Prof Dr Moritz Brinkmann, Prof Dr Nina Dethloff, Prof Dr Matthias Weller, University of Bonn; Prof Dr Matthias Lehmann, University of Vienna; Dr João Ribeiro-Bidaoui, Former First Secretary, HCCH; Melissa Ford, Secretary, HCCH
Part I: Cornerstones
- Scope of application
Prof Dr Xandra Kramer, Erasmus University Rotterdam, Utrecht University, The Netherlands
- Judgments, Recognition, Enforcement
Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany
- The jurisdictional filters
Prof Dr Pietro Franzina, Catholic University of Milan, Italy
- Grounds for refusal
Adj Prof Dr Marcos Dotta Salgueiro, University of the Republic, Montevideo; Director of International Law Affairs, Ministry of Foreign Affairs, Uruguay
- Article 29: From a Mechanism on Treaty Relations to a Catalyst of a Global Judicial Union
Dr João Ribeiro-Bidaoui, Former First Secretary, HCCH
Dr Cristina Mariottini, Senior Research Fellow at the Max Planck Institute for International, European and Regulatory Law, Luxembourg
1.00 p.m. Lunch Break
- The HCCH System for choice of court agreements: Relationship of the HCCH Judgments Convention 2019 to the HCCH 2005 Convention on Choice of Court Agreements
Prof Dr Paul Beaumont, University of Stirling, United Kingdom
Part II: Prospects for the World
- European Union
Dr Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission
- Perspectives from the US and Canada
Professor Linda J. Silberman, Clarence D. Ashley Professor of Law, Co-Director, Center for Transnational Litigation, Arbitration, and Commercial Law, New York University School of Law, USA
Professor Geneviève Saumier, Peter M. Laing Q.C. Professor of Law, McGill Faculty of Law, Canada
- Southeast European Neighbouring and EU Candidate Countries
Prof Dr Ilija Rumenov, Associate Professor at Ss. Cyril and Methodius University, Skopje, North Macedonia
8.00 p.m. Conference Dinner (€ 60.-)
Dinner Speech
Prof Dr Burkhard Hess, Director of the Max Planck Institute for International, European and Regulatory Law, Luxembourg
Saturday, 10 June 2023
9.00 a.m. Part II continued: Prospects for the World
- Perspectives from the Arab World
Prof Dr Béligh Elbalti, Associate Professor at the Graduate School of Law and Politics at Osaka University, Japan
- Prospects for Africa
Prof Dr Abubakri Yekini, University of Manchester, United Kingdom
Prof Dr Chukwuma Okoli, University of Birmingham, The Netherlands
- Gains and Opportunities for the MERCOSUR Region
Prof Dr Verónica Ruiz Abou-Nigm, Director of External Relations, Professor of Private International Law, University of Edinburgh, United Kingdom
- Perspectives for ASEAN
Prof Dr Adeline Chong, Associate Professor of Law, Yong Pung How School of Law, Singapore Management University, Singapore
- China
Prof Dr Zheng (Sophia) Tang, University of Newcastle, United Kingdom
1.00 p.m. Lunch Break
Part III: Outlook
- Lessons Learned from the Genesis of the HCCH 2019 Judgments Convention
Dr Ning Zhao, Principal Legal Officer, HCCH
- International Commercial Arbitration and Judicial Cooperation in civil matters: Towards an Integrated Approach
José Angelo Estrella-Faria, Principal Legal Officer and Head, Legislative Branch, International Trade Law Division, Office of Legal Affairs, United Nations; Former Secretary General, UNIDROIT
- General Synthesis and Future Perspectives
Hans van Loon, Former Secretary General, HCCH
Download poster as a PDF Document.
HCCH Monthly Update: January 2023
Conventions & Instruments
On 1 December 2022, the 2007 Maintenance Obligations Protocol entered into force for Ukraine. At present, 31 States and the European Union are bound by the Protocol. More information is available here.
On 7 December 2022, the 1961 Apostille Convention entered into force for Saudi Arabia. The Convention currently has 124 Contracting Parties. More information is available here.
On 1 January 2023, the 1980 Child Abduction Convention entered into force for Cabo Verde. The Convention currently has 103 Contracting Parties. More information is available here.
On 19 January 2023, El Salvador deposited its instrument of accession to the 1970 Evidence Convention. The Convention, which currently has 65 Contracting Parties, will enter into force for El Salvador on 20 March 2023. More information is available here.
Publications & Documentation
On 20 December 2022, the Permanent Bureau published the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children. More information is available here.
On 18 January 2023, the Permanent Bureau published the second edition of the Practical Handbook on the Operation of the Apostille Convention. More information is available here.
Other
On 13 December 2022, the Permanent Bureau celebrated the 10th anniversary of the establishment of the HCCH Regional Office for Asia and the Pacific. More information is available here.
These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.
Conference in Milan on the European Account Preservation Order, 3 March 2023
On 3 March 2023, the Catholic University of the Sacred Heart will host a conference titled The European Account Preservation Order – Six Years On. The aim is to discuss the operation of Regulation (EU) 655/2014 in light of practice and case law, six years after its provisions became applicable, in January 2017.
Presentations will be given in English and Italian, with simultaneous interpretation.
The speakers include Fernando Gascón Inchausti (Complutense University of Madrid), María Luisa Villamarín López (Complutense University of Madrid), Katharina Lugani (Heinrich Heine University, Düsseldorf), Antonio Leandro (University of Bari), Carlos Santalò Goris (Max Planck Institute, Luxembourg), Caterina Benini (Catholic University of the Sacred Heart), Elena Alina Ontanu (Tilburg University), Raffaella Muroni (Catholic University of the Sacred Heart), Elena D’Alessandro (University of Torino), and Gilles Cuniberti (University of Luxembourg).
The event will also serve as a launch event for an article-by-article commentary on the EAPO Regulation, edited by Elena D’Alessandro and Fernando Gascón Inchausti, and recently published by Edward Elgar Publishing in its Commentaries in Private International Law series. Augusto Chizzini (Catholic University of the Sacred Heart) and Luca Radicati di Brozolo (formerly of the same University, now partner at ArbLit) will discuss the commentary with the editors and the audience.
Attendance is free, but prior registration is required.
See the registration form and the full programme. For further information: pietro.franzina@unicatt.it