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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
Workshop on Cross-border Protection of Cultural Property-Agenda
Workshop on Cross-border Protection of Cultural Property Agenda
2025.2.28, UTC 8:00 – 12:15 (London Time)
| 8:00 – 8:05 | Opening Remarks | ||
| Zheng Tang | professor of Law, editor in chief, Chinese Journal of Transnational Law; Associate Dean, Wuhan University Academy of International Law and Global Governance | ||
| 8:05 – 8:45 | Keynote Address | ||
| Christa Roodt | Senior Lecturer of History of Art, University of Glasgow | ||
| Zhengxin Huo | Professor of Law, China University of Political Science and Law | ||
| Panel 1: Legal Mechanisms of Cross-Border Cultural Property Protection | |||
| 8:45 – 9:00 | Elena Moustaira | The contribution of Postcolonial Theory to the cross-border protection of Indigenous cultural heritage | |
| 9:00 – 9:15 | Yehya Badr | Restitution of stolen foreign cultural property and hurdles in choice of law | |
| 9:15 – 9:30 | Maggie Fleming Cacot | Forfeiture and freezing orders in transborder cultural property litigation | |
| 9:30 – 9:50 | Commentary and Discussion | ||
| Panel 2: Regional Practices and Challenges in Cultural Property Restitution | |||
| 9:50 – 10:05 | Andrzej’s Jakubowski | Moving People, Shifting State Borders and the Return of Cultural Property: The Case of Poland | |
| 10:05 – 10:20 | Miroslaw Michal Sadowski | From freedom to restitution (with special focus on Central and Eastern Europe and the Lusophone community) | |
| 10:20 – 10:35 | Ekin Omeroglu | The Issue of Applicable Law in Disputes Arising from Violations of Private Law Regulations on Cultural Properties: The Case of Turkiye | |
| 10:35 – 10:50 | Ruida Chen | Restitution of cultural property in China: In search of a new paradigm for cross-border cultural property claims | |
| 10:50 – 11:10 | Commentary and Discussion | ||
| Panel 3: Looking to the Past and the Future | |||
| 11:10 – 11:25 | Dabbie De Girolamo | The Relevance of ADR for transnational cultural property disputes: A Survey and Analysis of China’s experience | |
| 11:25 – 11:40 | Andreas Giorgallis | Restitution of cultural objects unethically acquired during the colonial era: The intersection of Public and Private International Law | |
| 11:40 – 11:55 | Evelien Campfens | Evolving Legal Models of Restitution | |
| 11:55 – 12:15 | Commentary and Discussion | ||
Join Zoom Meeting:
https://zoom.us/j/87424891864?pwd=8rHX72dmzi7FCDWWnm7F2n1OLIOFaC.1
Meeting ID: 874 2489 1864 Password: 574150
Giustizia consensuale No 2/2024: Abstracts
The second issue of 2024 of Giustizia consensuale (published by Editoriale Scientifica) has just been released, and it features:
Tommaso dalla Massara (Professor at Università Roma Tre), Per un’ermeneutica della certezza nel processo civile romano: tra regula iuris e determinazione pecuniaria (For a Hermeneutics of Certainty in the Roman Civil Process: Between Regula Iuris and Pecuniary Determination; in Italian).
This contribution offers a reflection on procedural certainty, starting from the Roman classical process. In particular, crucial is the idea that, in this procedural system, certainty is to be related to the rule of ‘condemnatio pecuniaria’. Thus, certainty is translated into the determinacy of the pecuniary sentence. What emerges is a peculiar way of understanding judicial activity, which is characterised by the alternativeness between the groundedness and groundlessness of the claim (si paret/si non paret oriented to a certum), as opposed to the hypothesis in which the assessment is left entirely to the judge.
Beatrice Ficcarelli (Associate Professor at the University of Florence), L’acquisizione di informazioni e «prove» nella negoziazione assistita da avvocati: la tessera che mancava (The Acquisition of Information and ‘Evidence’ in Negotiation Assisted by Lawyers: The Missing Piece of the Puzzle; in Italian). Read more
Call for Participants: Quo Vadis Preferential Law Approach? A Survey on the Interpretation of Article 6(2) Rome I Regulation Across EU Member States
Benedikt Schmitz (University of Groningen) has shared the following call for participants with us:
Quo Vadis Preferential Law Approach? A Survey on the Interpretation of Article 6(2) Rome I Regulation Across EU Member States
Project description:
The Rome I Regulation plays a crucial role in determining the applicable law in cross-border consumer contracts within the European Union. Article 6(2) Rome I Regulation allows parties to choose the governing law while ensuring that consumers do not lose the protection granted by mandatory provisions of the law that would apply in the absence of such a choice. Despite its significance, the interpretation of this provision varies across Member States, leading to questions about its practical coherence and effectiveness. Read more