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
Out Now: 3rd Edition of Ostendorf, Internationale Wirtschaftsverträge
Internationale Wirtschaftsverträge edited by Patrick Ostendorf (Berlin University of Applied Sciences) but otherwise exclusively written by practitioners occupies a unique position with the German literature on international transactions. It is undeniably aimed at practitioners, featuring a great number of check lists, English sample clauses, and practical tips. Accordingly, most of the book is structured around specific elements of international contracts such as penalties (ch. 6), indemnities (ch. 7), limitations of liability (ch. 8), force majeure (ch. 10), choice of law (ch. 13) and so on. In addition, the book features a number of cross-cutting chapters dedicated to particular types of contracts (ch. 18–23). But despite this hands-on approach, the book’s authors reflect on, and draw from, a wealth of academic material, which they condense into immediately applicable guidance.
Although coming out a mere five years after the previous edition, the third editions contains significant updates to most chapters in light of Brexit, Covid 19, Russia’s attack on Ukraine, the updates to Incoterms (2020) and the ICC Arbitration Rules (2021), and some significant legislative activity in Germany and Europe, e.g. with regard to international supply chains. Of course, these rapid developments make the book all the more useful for German lawyers navigating the high seas of international transactions.
ArbMetaBlock2023 Conference, Ghent, 26 May 2023
At the ArbMetaBlock2023 Conference leading experts in technology and dispute resolution will discuss the impact of blockchain, the Metaverse, and Web3 on arbitration. These concepts have become part of the conversation in the arbitration community, but few understand their true significance and potential impact.
Panelists will discuss the impact of blockchain and the Metaverse on arbitration, the changing role of lawyers and arbitration institutions, and the effect of new technology on arbitration fundamentals during our full-day event.
Confirmed speakers include Mihaela Apostel, Pedro Arcoverde, Elizabeth Chan, Paul Cohen, Dirk De Meulemeester, David Earnest, Elizabeth Zoe Everson, Anna Guillard Sazhko, Wendy Gonzales, Emily Hay, Cemre Kadioglu Kumptepe, Creguta Leaua, Matthias Lehman, Niamh Leinwather, Aija Lejniece, Maud Piers, Colin Rule, Sean McCarthy, Sophie Nappert, Ekaterina Oger Grivnova, Pietro Ortolani, Amy Schmitz, Takashi Takashima, David Tebel, Leandro Toscano, and Dirk Van Gerven.
The event is organized by the Center for the Future of Dispute Resolution at the University of Ghent in collaboration with leading organizations, including ArbTech, Arbitrate.com, Cepani, Cepani40 CyberArb, MetaverseLegal, and UNCITRAL.
Diversity & Inclusiveness In International Arbitration: Hybrid event on 24 April 2023
The School of Law of the University of Aberdeen is organising a hybrid even on Diversity & Inclusiveness In International Arbitration: Challenges, Progress and Excuses on Monday 24 April (13.00 – 14.15 British Summer Time).
Despite the broadly accepted desirability and value of diversity in international arbitration, statistics show that very little changes in the appointment practices in international arbitration. Tribunals remain largely non-diverse – with the exception of a growing number of female arbitrators. In this context, there is a clear need to reconceptualize the approach to diversity efforts, starting with the questions guiding the diversity debate, the parameters of success and the methods of their realization.
The speaker is Fahira Brodlija.
The event is free. Please contact Mr Georgi Chichkov for more information at georgi.chichkov@abdn.ac.uk or enrol here.