In Lloyd’s v Classic Sailing Adventures (Pty) Ltd 2010 ZASCA 89 (31 May 2010) (available from www.justice.gov.za/sca) the South African Supreme Court of Appeal held that sections 53 and 54 of the South African Short-Term Insurance Act 53 of 1998 are rules of immediate application that cannot be excluded by a choice of law. English law was chosen as the proper law of the insurance contract. The court held that, in as far as the Marine Insurance Act 1906 (UK) was in conflict with the South African provisions, it would not be applied. Section 53 deals with the effect of non-disclosure and misrepresentations and “is designed to protect insured parties who are ignorant, careless or uneducated from unscrupulous insurers who attempt to escape liability” (par 24). Section 54 deals with the effect of a contravention of a law on a policy and “ensures that a policy is not avoided only because the insured has contravened a law” (par 24). In an important obiter dictum, the court indicates that constitutional norms are invariably of direct application (par 25). A similar view was recently adopted in Burchell v Anglin 2010 3 SA 48 (ECG), in the context of cross-border defamation.

Many of our readers will be interested to know that the American Society of International Law is looking for proposals for its Annual Meeting program.  Here is the announcement:

“ASIL welcomes ideas from its members for the 105th Annual Meeting program, Harmony and Dissonance in International Law. To view the 2011 theme statement, click here http://www.asil.org/annual-meeting-2011.cfm.”

“The aim of the Annual Meeting is to promote discussion of important topics by including a range of voices and perspectives. To this end, the ASIL Program Committee relies on the submissions process to identify important topics and knowledgeable speakers. The Program Committee will then create a program with the following goals in mind.

*     Ensuring coverage of a wide range of important topics of current interest to ASIL members.

*     Ensuring wide participation by individuals from a variety of backgrounds, both within each Annual Meeting and across Annual Meetings.

*     Ensuring a place in the program for sessions organized by ASIL Interest Groups.”

“Please be aware that, even if your proposal is included in some form in the final program, it may differ significantly from the original proposal out of a desire to achieve these three goals. The Program Committee will inform proposers by email about the status of their proposal(s) by late August.”

“In order to suggest a topic or paper to the Program Committee, please click here http://www.asil.org/submission-panel-2011.cfm. The deadline for submissions is Monday, June 28, 2010.”

A Belgian book on International Family Law (Relations familiales internationales – L’actualité vue par la pratique) was recently published by Anthemis publishers.

This book which is the result of the joint efforts of 5 young authors who combine academic expertise with practical experience of international family law disputes, takes a practical approach to the most common international family law issues which may arise in Belgium. Looking at recent case law and developments in both the EU and the Hague Conference, the book offers students, practitioners and interested readers insight into the cross-border relationships between spouses and partners and between parents and children. In order to offer the reader the most practical information, the book is framed around 50 practical cases, inspired by case law and the practical experience of the authors. These cases are discussed with a view to outline the reasoning which must be followed to determine which court has jurisdiction, which law will apply and how to cope with a foreign judgment.

Among the issues discussed by the authors are child abduction, cross-border adoption, foreign surrogacy agreements, recognition of foreign repudiation. In analyzing these issues, the authors take into account the latest case law on international instruments such as the Brussels IIbis Regulation and various Hague Conventions.

P. Wautelet (ed.), International Family law in practice, Anthemis publishers, 72 EUR, ISBN 978-2-87455-225-0.

The book is written in French.

The long-running litigation between the United States and a group of defendants who operated a cross-border telemarketing business selling Canadian and foreign lottery tickets to Americans has reached another mile-post with the decision of the Court of Appeal for Ontario in United States of America v. Yemec, 2010 ONCA 414 (available here).  The defendants were likely riding high before this decision, having done quite well in resisting the enforcement of the judgment of an Illinois court finding them liable for $19 million and permanently enjoining them from telemarketing any product or service to anyone in the United States.  But the tables are now turned, with the Court of Appeal for Ontario ordering enforcement of the Illinois judgment.

The most notable jurisprudential issue in the case concerns the scope of the defences at common law to an action to recognize and enforce a foreign judgment.  At common law there are three central defences: fraud, denial of natural justice, and public policy.  However, the Supreme Court of Canada indicated in Beals v. Saldanha, [2003] 3 S.C.R. 416 that this was not a closed list and in the appropriate circumstances a new defence might be created.  In Yemec the motions judge of the Superior Court of Justice hearing the case was persuaded that there was a genuine issue requiring a trial on the question of a “fourth defence”, namely “denial of a meaningful opportunity to be heard”.  The Court of Appeal has now held that there is no such defence: that concerns of this nature fall comfortably within the scope of the denial of natural justice defence.  Further, on the facts, the appellate court found that the defendants were not denied an opportunity to be heard in the courts of Illinois (paras. 26-29). 

The case is one of several in the wake of Pro Swing Inc. v. Elta Golf Inc., [2006]  2 S.C.R. 612 to enforce a foreign non-monetary order, namely the permanent injunction.  The Court of Appeal found the criteria for enforcement set out by the Supreme Court of Canada in Pro Swing were met in this case (paras. 45-53).

The case raises one other interesting issue.  The United States had, at the outset of the litigation in Illinois and Ontario, obtained a freezing order (Mareva) and a civil seizure order (Anton Piller).  These interlocutory orders were subsequently dissolved, in part for failure of the United States to make full disclosure when moving ex parte to obtain the orders.  The defendants then insisted on a damages inquiry under the undertaking in damages the United States had provided as a condition of obtaining the orders.  The plaintiff argued that such an inquiry should not proceed, given that in effect the defendants were seeking to recover lost profits from a business the Illinois court had concluded was illegal.  The Court of Appeal for Ontario held that the damages inquiry should proceed, stressing the importance of enforcing the general undertaking in damages (paras. 69-72).  It did note, though, that there was evidence that the defendants had violated both Canadian and American law (paras. 78-83) and that accordingly it would be difficult for them to establish compensable damages.  But they were entitled to try (paras 85-86).

The University of Dijon will host a conference on Choice of Law in International Contracts under the Rome I Regulation (Le règlement communautaire « Rome 1 » et le choix de loi dans les contrats internationaux) on September 10th and 11th, 2010.

Speakers will be mostly French academics, but will also include some practitioners and a few academics from other European jurisdictions. Some of the leading French specialists such as Paul Lagarde or Pierre Mayer will be present.

The full programme and list of speakers can be found here. Further details can be found here and here.

The last issue of French daily legal journal Gazette du Palais dedicated to european and international litigation (Contentieux judiciaire européen et international) was released on May 29th, 2010.

In a first piece, Marie-Laure Niboyet and Mathias Audit, who are both professors at Paris X Nanterre University discuss the recent decisions rendered by French courts in the Vivendi case (L’affaire Vivendi Universal SA ou comment une class action diligentée aux États-Unis renouvelle le droit du contentieux international en France).

In a second piece, two French judges, Nicolas Castell (who is currently seconded to the French Ministry of Justice) and Michel de Lapasse, offer an analysis of the revision of the Brussels I Regulation (La révision du règlement Bruxelles I à la suite de la publication du livre vert de la Commission – Perspectives et opportunités).

Finally, the Gazette offers various short reports and casenotes.

Articles of the Gazette can be downloaded here by suscribers to Lextenso.

The Icelandic Parliament (Althingi) approved yesterday by 49 votes to none against a law that allows marriage between same sex partners. The so called rule of “neutral marriage ” means the end of the rules on partnerships, existing since 1996. With the adoption of this new law that will enter into force later this month, Iceland has become the ninth country to allow marriage between same sex couples, after the Netherlands, Spain, Belgium, Canada, South Africa, Norway, Sweden and Portugal (on May 17  the President of the Republic of Portugal enacted a law allowing civil marriage for same sex couples, without the right to adoption; the law had been approved by the Parliament on February).

With regard to Latin America, homosexual marriage is accepted by Mexico City since December 2009. On May 2010 the Chamber of Deputies of Argentina became the first Latin American legislative body to approve a bill allowing marriage between same sex; however, it still needs to be approved by the Senate. So far, five couples have been married, but mediating judicial authorization that can be appealed. It is worth recalling that on March, the 30^th, Argentina decreed the expulsion of a Spanish woman married in Canada since 2008 to an Argentinian citizen (also a woman). The enforcement of the decree has nevertheless been suspended.

We will have to wait to see the PIL implications of these laws. As for Spain, Spanish law is always applied, and therefore two persons of the same sex can always get married in Spain regardless of their national law (obviously provided they meet the reminding requirements).

The most recent EU Proposals on Private International Law (on the one hand, the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, COM(2009) 154 final, and on the other hand, the Proposal for a Council Regulation (EU) implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, COM(2010) 105 final) have raised some concerns regarding their possible effects in States with more than one legal system of private law, such as Spain and the United Kingdom. To analyse from a Spanish perspective some of the issues that may be triggered by these Proposals, a Workshop organised by the Department of Justice of the Generalitat de Catalunya (the Catalan regional Government) took place in Barcelona on June 8th (see the Program here)

The Workshop started with a brief presentation of the Proposal on successions (by Albert Font, from the Universitat Pompeu Fabra) and the Proposal on divorce and legal separation (by Rafael Arenas, from the Universitat Autònoma de Barcelona), paying special attention to those aspects which are likely to have an impact in Spain, as a consequence of the several private law legal systems which coexist in this country.

The second part of the Workshop was devoted to the presentation of the Working Materials prepared by the Group on Interregional Law of the Observatory on Private Law of Catalonia. These Working Materials are the result of an initial project of elaborating the draft of an Act on Interregional Law, dealing with the determination of the applicable law in intra-Spanish conflicts of private law (a matter currently dealt with by the Preliminary Title of the Spanish Civil Code). Although the draft has so far not been officially presented for its consideration by the Spanish Parliament, these Working Materials can be useful for further discussion on the subject.

For an account of the Workshop and a link to the Working Materials, please click here.

Many thanks to Cristian Oró Martínez, Postdoctoral
Researcher at the Universidad Autónoma de Barcelona

Three recent articles have been published about multijurisdictional class actions in Canada.  One of the most critical issues is whether the courts of a province will enforce a class action judgment from another province or another country approving a settlement that purports to bind plaintiffs resident in the province.  I know that similar issues are under consideration in other countries, so this literature could be of value as comparative law.

Genevieve Saumier, “Competing Class Actions Across Canada: Still at the Starting Gate after Canada Post v. Levine” (2010) 48 C.B.L.J. 462

Tanya Monestier, “Personal Jurisdiction over Non-Resident Class Members: Have We Gone Down the Wrong Road?” (2010) 45 Texas International Law Journal 537

Peter W. Hogg & S. Gordon McKee, “Are National Class Actions Constitutional?” (2010) 26 N.J.C.L. 279

These take their place alongside several other articles on this topic from the past few years.

Can foreign freezing orders prevent the forum from granting leave to attach provisionally local assets? The Rouen Court of appeal ruled so in a judgment of 24 March 2009.

The case was about the sale of a ship from a company incorporated in Panama to a companny incorporated in the Marshall Islands. The parties had concluded a memorandum of agreement whereby the buyer, which had paid a deposit upon the signature of the memorandum, would pay the price within three days of the notification of the delivery of the ship. The seller notified. The buyer did not pay. The seller terminated the contract, but kept the deposit. The buyer initiated arbitration proceedings in London (substantive claims are not known).

Parallel arrest proceedings

While the arbitration proceedings were pending, the buyer sought to arrest provisionally (saisie conservatoire) the ship in Greece. A Greek court granted leave to do so ex parte, but when the defendant challenged the order in inter partes proceedings, a Greek court set aside the order on the ground that two critical requirements of Greek law were not met: there was neither a good arguable case nor a real risk that the award would go unsatisfied.

When the ship showed up in France a year later, the buyer sought to arrest it provisionally again. The commercial court of Rouen (Normandy) granted leave to do so ex parte. The defendant challenged unsuccessfully the French order in inter partes proceedings. It then appealed.

Recognition of Foreign Order

The Court of appeal of Rouen allowed the appeal, and set aside the arrest. It did so on the ground that the dispute had been settled by the Greek court, not on the ground of French substantive law. Indeed, the Court ruled that French law had different requirements, but that this was irrelevant since the court was bound to recognize the foreign order. It underlined that the foreign order had been rendered between the same parties, had the same object and the same cause.

One would have expected the court to rule that the foreign order was res judicata and thus prevented any other European court  from deciding the dispute again. The court referred to article 33 of the Brussels I Regulation and held that it was bound to recognize the foreign order. It also held that the two disputes were the same by the Brussels I Regulation standards (parties, cause, object).

However, the court got it all wrong when it offered its final legal analysis. It held that the French order was irreconcilable with the Greek order. It concluded that, in such circonstances,  article 34 of the Brussels I Regulation demanded that the foreign order be recognized and the French court not issue a contradictory order. This was a rather innovative reading of article 34. Article 34 provides that, when one of the two irreconcilable judgments was rendered by the forum, it should always be preferred. Article 34  does not help recognition: it offers grounds for denying it.

Nevertheless, the decision is interesting. If the court had applied the res judicata doctrine instead of addressing the issue through the conflict of judgments doctrine, it would have reached the exact result that it wanted to reach.

It might then have wanted to discuss the issue of the applicable law to res judicata: res judicata of provisional orders is typically limited , as they often can be modified in case of new circumstances. This is what article 700 of the Greek Code of civil procedure provides. But did Greek law govern the issue?

I am grateful to Sebastien Lootgieter for drawing my attention to this case.