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
Third Issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2025
The third issue of Lloyd’s Maritime and Commercial Law Quarterly for 2025 has recently been published. It contains two private international law case notes and a book review.
Andreas Giannakopoulos, “Asymmetric Jurisdiction Clauses and EU Exceptionalism”
Matthew Hoyle, “Full Service: Freezing Injunctions and Service Out (Again)”
Thomas Raphael, “The Virtues of Symmetry”
Call for Papers: 4th APILA Conference, Doshisha University (Kyoto, Japan), 13–14 December 2025
The fourth annual APILA Conference will take place in person at Doshisha University in Kyoto (Japan) on Saturday 13 (Day 1) and Sunday 14 (Day 2) December 2025. The APILA Conference will be in the form of two days of roundtable discussions in English. Persons whose abstracts have been selected (see next paragraph) will deliver oral presentations in turn on Days 1 and 2. Each presentation will run for about 10 minutes and be followed by a discussion of about 10 to 15 minutes in which participants will have the opportunity to comment on the presentation. The objective of the APILA Conference is to assist presenters to refine prospective research papers with a view to eventual publication. Read more
Rivista di diritto internazionale privato e processuale (RDIPP) No 2/2025: Abstracts
With a slight delay – entirely due to myself – I am pleased to announce the release of the second 2025 issue of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM). This issue features:
Francesco Pesce, Associate Professor at the University of Genoa, Il riconoscimento delle decisioni straniere in materia civile tra previsioni sulla competenza funzionale del giudice interno e comunicazioni alla Commissione europea (Recognition of Foreign Decisions in Civil Matters between Provisions on the Functional Jurisdiction of National Courts and Communications to the European Commission; in Italian) Read more