The recent decision of the Eastern Cape High Court in Grahamstown (South Africa) in Burchell v Anglin 2010 3 SA 48 (ECG) deals with cross-border defamation in a commercial context. The plaintiff (who runs a game reserve and a hunting safari business in the vicinity of Grahamstown) alleged that the defendant made defamatory statements about him to a booking agent in Sydney, Nebraska (USA). Most of his safari clients originated from this agent. However, the bookings suddenly and dramatically decreased and, according to the plaintiff, this was due to defamatory statements made by the defendant to the agent. Accordingly, he instituted action for general damages and loss of profit.
Crouse AJ decided that the lex loci delicti was the law of Nebraska as the defamatory statements were heard and read in that state. However, although “[weighing] heavily in the balancing scale” (par 124), the place of the delict was in final instance “only to be used as a factor in a balancing test to decide which jurisdiction would have the most real or significant relationship with the defamation and the parties” (par 128). Nevertheless, taking into account the other connecting factors (listed in par 124), the judge decided that the law of Nebraska would prima facie be applicable.
In the process, the judge rejects the double actionability rule of the English common law (par 113). She refers in some detail to foreign case law (from the UK, Canada and the USA) and to foreign commentators (including Harris and Fridman). Her views are similar to these found in Forsyth’s Private International Law (2003) 339-340, the leading textbook on Southern African private international law.
However, according to Crouse AJ, the defamation laws of Nebraska needed to pass constitutional muster to be applied by a South African court: “In South Africa the highest test for our public policy is our Constitution. Just as all South African law is under public scrutiny, so any foreign law which a court intends to apply in South Africa should be placed under constitutional scrutiny. I must therefore decide whether the law of Nebraska passes constitutional muster in South Africa before deciding I can apply [the] same” (par 127). The court is therefore of the opinion that constitutional norms are always of direct application. (A similar view may be found in the recent judgement of the Supreme Court of Appeal in Lloyd’s v Classic Sailing Adventures 2010 SCA 89 (31 May 2010) per www.justice.gov.za/sca.) The issue of conflict with constitutional norms was referred to decision at the end of the trial (par 127). This may lead to an interesting decision as US defamation law is perceived to be pro-defendant (the defendant alleges that his statements are protected under the US constitution) (par 121) while South African defamation law is, in comparison, more favourable to the plaintiff, also due to constitutional provisions.

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.