Views
UKSC on Traditional Rules of Jurisdiction: Brownlie v Four Seasons Holdings Incorporated
Shortly before Christmas the UKSC released its decision on jurisdiction in Brownlie v Four Seasons Holdings Incorporated (available here). Almost all the legal analysis is obiter dicta because, on the facts, it emerges that no claim against the British Columbia-based holding corporation could succeed (para 15) and the appeal is allowed on that basis. I suppose there is a back story as to why it took a trip to the UKSC and an extraordinary step by that court (para 14) for the defendant to make those facts clear, but I don’t know what it is. On the facts there are other potential defendants to the plaintiffs’ claim and time will tell whether jurisdictional issues arise for them.
The discussion of the value of the place of making a contract for jurisdiction purposes is noteworthy. In para 16 two of the judges (Sumption, Hughes) are critical of using the traditional common law rules on where a contract is made for purposes of taking jurisdiction. This has been the subject of debate in some recent Canadian decisions, notably the difference in approach between the Court of Appeal for Ontario and the Supreme Court of Canada in Lapointe Rosenstein Marchand Melançon LLP v Cassels Brock & Blackwell LLP, 2016 SCC 30 (available here). The SCC was fine with using the traditional rules for this purpose. In Brownlie, I do not think it is clear as to what view the other three judges take on this point.
Even more interestingly, the UKSC judges split 3-2 on how to understand the idea of damage in the forum as a basis for jurisdiction. Three judges (Hale, Wilson, Clarke) retain the traditional broad common law view – the position in many Canadian provinces prior to Club Resorts Ltd v Van Breda, 2012 SCC 17 (available here) – that ongoing suffering in the forum in respect of a tort that happened abroad is sufficient. Two judges (Sumption, Hughes) reject that approach and adopt a more narrow meaning of damage in the forum (it must be direct damage only).
This 3-2 split is closer even than it might first seem, since Lord Wilson (para 57) suggests that in a different case with fuller argument on the point the court might reach a different result.
Canadian law does not get a fair description in the UKSC decision. The court notes twice (para 21 and para 67) that Canada’s common law uses a broad meaning of damage for taking jurisdiction. Club Resorts, and the change to the law it represents on this very issue, is not mentioned. This is yet another illustration of the importance of being careful when engaging in comparative law analysis.
Conflicts – Between Domestic and Indigenous Legal Systems?
In Beaver v Hill, 2017 ONSC 7245 (available here) the applicant sought custody, spousal support and child support. All relevant facts happened in Ontario. Read more
NIKI continued (now in Austria)
Written by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany
The Regional Court Korneuburg has opened a main insolvency proceeding – not a secondary insolvency proceeding that the German provisional administrator has applied for – on the assets of NIKI Luftfahrt GmbH in Austria (see here). Therefore, it obviously shares the view of the Regional Court of Berlin that NIKI’s COMI is located in Austria and not Germany. Read more
News
Call for applications: 2023 Peter Nygh Hague Conference Internship
The Australian Institute of International Affairs (AIIA) and the Australian Branch of the ILA are pleased to present the 2022 Peter Nygh Hague Conference Internship. The award will support a postgraduate student or graduate of an Australian law school to undertake an internship with The Hague Conference on Private International Law in the Netherlands by providing funds to cover the cost of travel to the Netherlands and a contribution towards living expenses.
Applications for the 2023 Nygh Internship are now open, and will close on 30 September 2022. More information about the award and how to apply is available here, and below.
The Internship
The award will provide a postgraduate student or graduate with the opportunity to work with some of the leading private international law practitioners in the world. With over 80 members (including the European Union) representing all major regions and legal systems, The Hague Conference is a global intergovernmental organisation that aims for the ‘progressive unification’ of the various State private international law rules.
Activities of The Hague Conference are coordinated by a multinational Secretariat – the Permanent Bureau – located in The Hague. The successful intern will work for 5 to 6 months under the direction of the Secretariat, assisting with research, translation and preparation of meetings in accordance with the needs of the lawyers of the Permanent Bureau.
How to apply
Please send a letter of application addressed to the Peter Nygh Hague Conference Internship Board (nygh.internship@internationalaffairs.org.au) or to c/- Ms Nicola Nygh, Resolve Litigation Lawyers, level 18, 126 Phillip Street, Sydney NSW 2000.
The letter should include:
- the applicant’s reasons for applying for the Peter Nygh Hague Conference Internship;
- the benefits which the applicant expects are to be derived from the internship and the contribution which the applicant expects to make to the work of The Hague Conference;
- the applicant’s career ambitions and how the internship will relate to those ambitions;
- a description of the applicant’s current research, if applicable; and
- the dates when the applicant would be available to undertake the internship (Note: The applicant must be available to undertake the internship for 5 to 6 months. The preferred start date is the beginning of January 2023 and the preferred end date is the end of June 2023. The start date, and indeed whether the internship can be undertaken in 2023, may vary depending on what travel restrictions are in place at the time).
The award is for a lump sum amount, and the successful candidate will need to accept the risks and increased costs of travelling during the COVID-19 pandemic, including limited and more expensive flights (in particular into and out of Australia), government restrictions on travel, and quarantine regimes for travellers.
Please also enclose the following:
- the applicant’s up-to-date résumé;
- the applicant’s most recent academic transcript;
- two letters of reference for the applicant (including at least one academic reference), with contact details of referees;
- a copy of research work by the applicant in a field relevant to the work of The Hague Conference; and
- any other proof of the applicant’s legal and linguistic abilities and knowledge. Knowledge of French would be an asset but is not required. Knowledge of any other languages may also be an advantage.
The Hon Dr Peter Nygh AM
The Peter Nygh Hague Conference Internship has been established in memory of the late Hon Dr Peter Nygh AM, a leading international lawyer, former judge of the Family Court of Australia and former President of the ILA (Australian Branch). Dr Nygh began his 25 year association with The Hague Conference as a member of Australia’s delegation in 1975. During this time, Dr Nygh helped to draft the Convention on the Celebration and Recognition of the Validity of Marriages as well as the Convention on the Law Applicable to Matrimonial Property Regimes, work which contributed to his appointment to the Family Court of Australia. After his retirement from the bench, Dr Nygh returned to The Hague Conference and between 1994 and his death in 2002 he contributed in many ways, including serving as co-rapporteur on The Hague ‘judgments project’ from 1996 and representing Australia in the negotiations that led to the Convention on the Protection of Children. In his later years Dr Nygh spent extended periods in The Hague without remuneration or payment of his expenses, yet his work did not go unrecognised. He was awarded the Centenary Medal by the Australian Government as well as the Order of Australia, partly in recognition of his outstanding and longstanding contribution to private international law, and in particular his representation of Australia at The Hague Conference.
Unilag Law Review
The University of Lagos Law Review (“Unilag Law Review”) in its 2022 issue recently published articles on Nigerian law. One of the articles is focused on conflict of laws:
P Oladimeji, “Simplifying the Doctrine of Renvoi under Conflict of Laws”
The doctrine of Renvoi is a topic in Conflict of Laws that posits a stumbling block, more often than anticipated, to students of the academic discourse trying to understand the scope of Conflict of Laws and how the framework of this topic applies in international matters. As such, this paper is an effort by the writer to simplify the tenets of the doctrine of Renvoi, its applicability, and its suppositions as reflected by scholars of English jurisprudence who dealt extensively with the doctrine at the time of its inception in the early 20th century. The paper begins with an introduction to the doctrine of Renvoi and its meaning per Private International Law; and then proceeds to distil the doctrine further by looking at the theories concocted by early scholars of its discourse as to its functionality in law. This paper also looks at the often quoted types of Renvoi and simplifies the difference(s) between these types as much as possible. Following this, the paper analyses the challenges brought to bear by the application of Renvoi in international matters – challenges that have led to rising arguments for and against the application of the doctrine as is.
Brussels IIb Practice Guide published
Thanks to Costanza Honorati and Laura Carpaneto for the tip!
The Practice Guide on the Brussels IIb Regulation (Regulation 2019/1111) has been published on the site of the European Judicial Network in Civil and Commercial Matters (EJN) – scroll to the bottom.
The Guide was written by Boriana Musseva under a contract between the European Commission and Milieu Consulting, under the supervision of the EJN. It uses the name Brussels IIb (presumably the Commission’s preferred nomenclature) even though some authors also use Brussels IIter. The Guide is still being translated in the other EU languages and will then also be published with the other information that the Commission provides on the European Judicial Atlas.
Here is the direct link to the Practice Guide for the application of the Brussels IIb Regulation.