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Double Counting the Place of the Tort?

In common law Canada there is a clear separation between the question of a court having jurisdiction (jurisdiction simpliciter) and the question of a court choosing whether to exercise or stay its jurisdiction.  One issue discussed in the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) is the extent of that separation.  Does this separation mean that a particular fact cannot be used in both the analysis of jurisdiction and of forum non conveniens?  On its face that seems wrong.  A fact could play a role in two separate analyses, being relevant to each in different ways.

The Most Appropriate Forum: Assessing the Applicable Law

Another issue in the recent Supreme Court of Canada decision in Haaretz.com v Goldhar (available here) involves the applicable law as a factor in the forum non conveniens analysis.  It is clear that one of the factors in determining the most appropriate forum is the applicable law.  This is because it is quite easy for the forum to apply its own law and rather more difficult for it to apply the law of another jurisdiction.

So if the defendant can show that the forum would apply not its own law but rather the law of another jurisdiction, that points to a stay of proceedings in favour of that other jurisdiction.  In contrast, if the plaintiff can show that the forum would apply its own law, that points against a stay of proceedings.  In Haaretz.com the plaintiff was able to show that the Ontario court would apply Ontario law, not Israeli law.  So the applicable law factor favoured Ontario.

The Role of Foreign Enforcement Proceedings in Forum Non Conveniens

The doctrine of forum non conveniens, in looking to identify the most appropriate forum for the litigation, considers many factors.  Two of these are (i) a desire to avoid, if possible, a multiplicity of proceedings and (ii) any potential difficulties in enforcing the decision that results from the litigation.  However, it is important to keep these factors analytically separate.

In the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) Justice Abella noted that “enforcement concerns would favour a trial in Israel, in large part because Haaretz’s lack of assets in Ontario would mean that any order made against it would have to be enforced by Israeli courts, thereby raising concerns about a multiplicity of proceedings” (para 142).  Similarly, Justice Cote concluded (paras 82-83) that the fact that an Ontario order would have to be enforced in Israel was a factor that “slightly” favoured trial in Israel.

News

Private International Law Aspects of Corporate Social Responsibility Ius Comparatum – Global Studies in Comparative Law – Volume 42

A new volume in the series of Ius Comparatum – Global Studies in Comparative Law has been recently published by Springer. The volume was edited by Prof. Catherine Kessedjian, Université Panthéon-Assas Paris II Paris, France, and Prof. Humberto Cantú Rivera, School of Law University of Monterrey, Mexico.

The book addresses one of the core challenges in the corporate social responsibility (or business and human rights) debate: how to ensure adequate access to remedy for victims of corporate abuses that infringe upon their human rights. However, ensuring access to remedy depends on a series of normative and judicial elements that become highly complex when disputes are transnational. In such cases, courts need to consider and apply different laws that relate to company governance, to determine the competent forum, to define which bodies of law to apply, and to ensure the adequate execution of judgments. The book also discusses how alternative methods of dispute settlement can relate to this topic, and the important role that private international law plays in access to remedy for corporate-related human rights abuses.

Postdoc Position at the Masaryk University

The Masaryk University opened the call for applications to the postdoctoral position in law. Since the call is not limited to any particular branch of law, it may be of interest to the readers of this blog. Application should be submitted by 31 May 2020 to vedavyzkum@law.muni.cz, which is also the contact for any inquiries.
Further information is available here.

Webinars on Private International Law and Covid-19: 11-22 May 2020

Gathering (or rather e-gathering) professors and researchers from Brazil, Argentina, Uruguay, Mexico, Spain, and Portugal, a series of webinars is taking place from today until 22 May, under the general topic of PIL and Covid-19: Mobility, Commerce and Challenges in the Global Order.

Subtopics are:

I – PIL, International Institutions and Global Governance in times of Covid-19

II – Protecting persons in mobility and Covid-19: Human Rights, Families, Migrants, and Consumers

III – International Commerce and Covid-19: Global Supply Chains, Civil Aviation, Technologies & Labor

Full programme and more information: here.