Views
The jurisdictional hurdles of s 26 of the Trans-Tasman Proceedings Act 2010 (Cth), in the context of interim anti-enforcement relief in aid of New Zealand proceedings
The New Zealand High Court recently granted a permanent anti-enforcement injunction in relation to a default judgment from Kentucky in Kea Investments Ltd v Wikeley Family Trustee Limited [2023] NZHC 3260. The plaintiff, a British Virgin Islands company, claimed that the defendants had committed a tortious conspiracy against it because the Kentucky default judgment was based on fabricated claims intended to defraud it. The defendants were a New Zealand company, Wikeley Family Trustee Ltd (WFTL), and persons associated with the company.
In an undefended judgment, the High Court granted the injunction, awarded damages for the costs incurred in the foreign proceedings (referring to cases such as Union Discount Co Ltd v Zoller [2001] EWCA Civ 1755, [2002] 1 WLR 1517 by analogy), and issued a declaration that the Kentucky judgment would not be recognised or enforceable in New Zealand. As noted previously on this blog (see here), the case is an interesting example of “the fraud exception to the principles of comity” (Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215 at [192]).
Second Act in Dutch TikTok class action on privacy violation: court assesses Third Party Funding Agreements
Written by Eduardo Silva de Freitas (Erasmus University Rotterdam), Xandra Kramer (Erasmus University Rotterdam/Utrecht University) & Jos Hoevenaars (Erasmus University Rotterdam), members of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.
Introduction
Third Party Litigation Funding (TPLF) has been one of the key topics of discussion in European civil litigation over the past years, and has been the topic of earlier posts on this forum. Especially in the international practice of collective actions, TPLF has gained popularity for its ability to provide the financial means needed for these typically complex and very costly procedures. The Netherlands is a jurisdiction generally considered one of the frontrunners in having a well-developed framework for collective actions and settlements, particularly since the Mass Damage Settlement in Collective Actions Act (WAMCA) became applicable on 1 January 2020 (see also our earlier blogpost). A recent report commissioned by the Dutch Ministry of Justice and Security found that most collective actions seeking damages brought under the (WAMCA) have an international dimension, and that all of these claims for damages are brought with the help of TPLF.
Is this a Conflicts Case?
In Sharp v Autorité des marchés financiers, 2023 SCC 29 (available here) the Supreme Court of Canada has held that a Quebec administrative tribunal, the Financial Markets Administrative Tribunal, can hear a proceeding brought by the administrative agency that regulates Quebec’s financial sector, the Autorité des marchés financiers, against four defendants who reside in British Columbia. The AMF alleged in the proceedings that the defendants had contravened the Quebec Securities Act.
The courts below, including a majority of the Quebec Court of Appeal, focused the analysis on s. 93 of the Act respecting the Autorité des marchés financiers, CQLR, c. A-33.2, which grants the FMAT jurisdiction to make determinations under the Securities Act. They interpreted and applied this provision in light of Unifund Assurance Co. v Insurance Corp. of British Columbia, 2003 SCC 40, a leading decision on the scope of application of provincial law, which held that a provincial regulatory scheme constitutionally applies to an out-of-province defendant when there is a “real and substantial connection”, also described as a “sufficient connection”, between the province and the defendant. This test was met on the facts [see para 22] and so the FMAT had jurisdiction. This analysis is not generally understood as being within the field of conflict of laws. Indeed, the majority of the Court of Appeal “saw no conflict of jurisdiction or any conflict of laws that would require the application of private international law rules to this case” [see para 29].
News
Report on the 2024 Asia-Pacific Colloquium of the Journal of Private International Law (JPIL)
On 5–6 December 2024, 18 private international lawyers from Australia, Hong Kong, Japan, New Zealand and Singapore came together at the University of Melbourne for the 2024 Asia-Pacific Colloquium of the Journal of Private International Law (JPIL).
The colloquium was the first since 2018, when it had been held in Japan. The 2024 event was expertly hosted by Professor Richard Garnett and Professor Ying Khai Liew of the University of Melbourne Law School, and held at University House at UniMelb’s Parkville campus. Read more
Out Now: New open Access book on Children in Migration and International Family Law (Springer, 2024) by Stefan Arnold & Bettina Heiderhoff
Stefan Arnold (Institute of International Business Law, Chair for Private Law, Philosophy of Law, and Private International Law, University of Münster, Münster, Germany) and Bettina Heiderhoff (Institute for German and International Family Law, Chair for Private International Law, International Civil Procedure Law and German Private Law, University of Münster, Münster, Germany) have recently published an edited book on Children in Migration and International Family Law (Springer, 2024).
The book is an open access title, so it is freely available to all. In the editors’ words, the book aims “to shed light on the often overlooked legal difficulties at the interface between international family law and migration law” (p. 3) with focus placed “on the principle of the best interests of the child and how this principle can be more effectively applied.” (p.4)
The book’s blurb reads as follows:
This open access book offers readers a better understanding of the legal situation of children and families migrating to the EU. Shedding light on the legal, practical, and political difficulties at the intersection of international family law and migration law, it demonstrates that enhanced coordination between these policy areas is crucial to improving the legal situation of families on the move. It not only raises awareness of these “interface” issues and the need for stakeholders in migration law and international family law to collaborate closely, but also identifies deficits in the statutory framework and suggests possible remedies in the form of interpretation and regulatory measures.
The book is part of the EU co-financed FAMIMOVE project and includes contributions from international experts, who cover topics such as guardianship, early marriage, age assessment, and kafala from a truly European perspective. The authors’ approach involves a rigorous analysis of the relevant statutory framework, case law, and academic literature, with particular attention given to the best interest of the child in all its facets. The book examines how this principle can be more effectively applied and suggests ways to foster a more fruitful understanding of its regulatory potential.
Given its scope and focus, the book will be of interest to researchers, scholars, and practitioners of Private International Law, Family Law, and Migration Law. It makes a valuable contribution to these fields, particularly at their often-overlooked intersections.
The content of the chapters is succinctly summarized in the introductory chapter of the book, authored by the editors (“Children in Migration and International Family Law: An Introduction,” pp. 11–16). This summary is referenced here as a sort of abstract for each chapter. Read more
XVII Conference of the ASADIP: A More Intelligent and Less Artificial Private International Law
ASADIP: A More Intelligent and Less Artificial Private International Law
By Juan Ignacio Stampalija
The XVII Conference of the American Association of Private International Law (ASADIP) was held on September 25-27. Under the title ‘A More Intelligent and Less Artificial Private International Law,’ the main regional experts, as well as international guests, met at Universidad Austral of Argentina to discuss the main challenges of current private international law. Read more