Conflicts – Between Domestic and Indigenous Legal Systems?
In Beaver v Hill, 2017 ONSC 7245 (available here) the applicant sought custody, spousal support and child support. All relevant facts happened in Ontario. Read more
Tag Archive for: choice of law
Characterization of Unfunded Pension Liability Claims
In Re Walter Energy Canada Holdings, Inc, 2017 BCSC 709 (available here) the British Columbia Supreme Court had to consider the validity of a large claim (over $1 billion) filed in restructuring proceedings underway in the province under federal legislation. The claim was for unfunded pension liabilities and was based on an American statute, the Employee Retirement and Income Security Act of 1974, 29 U.S.C. § 1001. So the court had to consider whether that statute could apply to a claim in British Columbia against entities organized in Canada (mostly in British Columbia).
Starting at para. 93 the court considered whether the claim against the entities being restructured was governed by Canadian or American law (in each case the relevant law was either federal rather than provincial or state or did not vary as between provinces). This is a choice of law question which raises the issue of the characterization of the claim. Canadian courts do not often analyze characterization in detail, but the court did so in this case, making the decision notable. The claimant argued that the claim was one in the law of obligations and sought to identify the proper law of the obligation. The entities being restructured in contrast argued the claim went to a point of corporate law, namely their separate existence from other entities in an international corporate group. The court referred to several of the main general authorities about the characterization process but considered the specific issue before it to be one of first instance. It sided with the entities being restructured – the claim went to the issue of separation of corporate personality and status. The American statute was imposing liability by “lifting the corporate veil” (paras. 137-38) between international corporate entities.
Having characterized the issue, the court then had to identify the connecting factor for the choice of law rule. It held:
[160] The issue as to whether the Walter Canada Group’s separate legal personalities can be ignored is subject to the Canadian choice of law rule that the status and legal personality of a corporation is governed by the law of the place in which it was incorporated, namely British Columbia and Alberta. Here, as with the corporations within the Walter Canada Group, both with limited liability and unlimited liability, it is admitted that all of the partnerships were organized under British Columbia law. Accordingly, the choice of law analysis leads to the same result in relation to the partnerships, namely British Columbia law, including under the Partnership Act, R.S.B.C. 1996, c. 348.
[161] The place of incorporation or organization is a matter of public record and all persons who would do business with or otherwise deal with the Walter Canada Group entities would or should be well aware of that fact.
[162] I agree that, under Canadian choice of law rules, the place of incorporation or organization of the Walter Canada Group entities is the appropriate “connecting factor” in relation to the issue arising from the 1974 Plan’s claim. As a result, British Columbia and Alberta law determine whether the separate legal personalities of the Walter Canada Group entities can be ignored.
Given that the American statute is not part of British Columbia or Alberta law, the court concluded that the claim failed (paras. 177-78).
I want to reflect more on the decision, but at this point I am not certain I agree with the characterization analysis. It is true that the only way the American statute makes the Canadian entities liable is by imposing liability on others within a larger corporate group. But to me it does not follow that the statute is a matter of corporate status and not of obligation. The statute imposes an obligation and extends that obligation to various entities. I think there is room to debate that the primary element of the statute is the obligation it imposes.
However, support for the decision could lie in Macmillan Inc v Bishopsgate Investment Trust (No 3), [1996] 1 WLR 387 (CA), which the court does mention (see for example para. 126), which stresses the possibility of characterizing a specific legal issue within the context of a broader claim. The analysis could be that there is a nested issue – that of corporate separation or status – within the broader question of liability for an unfunded pension.
Private International Law in Commonwealth Africa
Published this week is Private International Law in Commonwealth Africa (Cambridge University Press, 2013) by Prof. Richard Oppong of Thompson Rivers University.
From the book’s website:
The book won the 2013 American Society of International Law prize in Private International Law. The prize ‘recognizes exceptional work in private international law’. The Secretary General of the Hague Conference on Private International Law, Dr. Christophe Bernasconi, observes in his foreword to the book that: ‘The publication of Private International Law in Commonwealth Africa marks a significant milestone in the history and development of private international law in Africa. Its encyclopaedic analysis of fifteen national legal systems – which account for over 40 per cent of the continent’s population yet over 70 per cent of its economic output – will go a long way to filling a gap in knowledge in respect of this important region of the world’.
The book offers an unrivalled breadth of coverage in its comparative examination of the laws in Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Namibia, Nigeria, Sierra Leone, South Africa, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe. The book draws on nearly 1500 cases decided by courts in these countries (the majority of which have never been cited in any academic work) and numerous national statutes. It covers the areas of jurisdiction, choice of law, foreign judgments and arbitral awards enforcement, and international civil procedure. It also provides an extensive bibliography of the literature on African private international law.
Copies of the book may be obtained from many sources including the Cambridge UK and Amazon websites (link here).
Rome III Regulation Adopted by Council
As a Christmas gift for European PIL scholars, the first enhanced cooperation in the history of the EU has been achieved in the field of conflict of laws (on the origin of the initiative see our previous post here).
The Council, in its meeting of 20 December 2010, adopted the Rome III regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (for previous steps of the procedure, see here and here). As of mid-2012 (18 months after its adoption, pursuant to Art. 21), the Rome III reg. will apply in the 14 Member States which have been authorised to participate in the enhanced cooperation by Council decision no. 2010/405/EU: Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. Further Member States which wish to participate may do so in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union.
The text of the new regulation is available in Council doc. no. 17523/10 of 17 December 2010; after the signing of the President of the Council, it will be soon published in the Official Journal. The regulation is accompanied by a Declaration of the Council regarding the insertion of a provision on forum necessitatis in reg. no. 2201/2003, worded as follows:
The Council invites the Commission to submit at its earliest convenience to the Council and to the European Parliament a proposal for the amendment of Regulation (EC) No 2201/2003 with the aim of providing a forum in those cases where the courts that have jurisdiction are all situated in Member States whose law either does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings (forum necessitatis).
The European Parliament, merely consulted under the special legislative procedure provided by Art. 81(3) TFEU for measures concerning family law, gave its opinion on 15 December 2010 (informal contacts with the Council have ensured that the EP views were taken into account in the final text). In the preamble of the legislative resolution, the EP called “on the Commission to submit a proposal for amendment of Regulation (EC) No 2201/2003, limited to the addition of a clause on forum necessitatis, as a matter of great urgency before the promised general review of that Regulation”.
Many thanks to Federico Garau (Conflictus Legum blog) and to Marina Castellaneta for the tip-off.
New Articles in Canadian Publications
Two recent publications contain several topical articles:
In the 2010 issue (volume 60) of the University of New Brunswick Law Journal are the following five articles: Catherine Walsh: “The Uses and Abuses of Party Autonomy in International Contracts”; Joshua Karton, “Party Autonomy and Choice of Law: Is International Arbitration Leading the Way or Marching to the Beat of its own Drummer?”; Stephen Pitel, “Reformulating a Real and Substantial Connection”; John McEvoy, “‘After the Storm: The Impact of the Financial Crisis on Private International Law’: Jurisdiction”; and Elizabeth Edinger, “The Problem of Parallel Actions: The Softer Alternative”. This journal is available to subscribers, including through Westlaw.
In Jeff Berryman & Rick Bigwood, eds., The Law of Remedies: New Directions in the Common Law (Toronto: Irwin Law Inc., 2010) are four articles that relate to the conflict of laws: David Capper, “Mareva Orders in Globalized Litigation”; Scott Fairley, “Exporting Your Remedy: A Canadian Perspective on the Recognition and Enforcement of Monetary and Other Relief”; Garry Davis, “Damages in Transnational Tort Litigation: Legislative Restrictions and the Substance/Procedure Distinction in Australian Conflict of Laws”; and Russell Weaver & David Partlett, “The Globalization of Defamation”. This collection of articles is available for purchase here.
Publication: Galgano & Marrella, Diritto e Prassi del Commercio Internazionale
Prof. Francesco Galgano (emeritus in the University of Bologna Law School
and founder of Galgano Law Firm) and Prof. Fabrizio Marrella (“Cà Foscari” University of Venice) have recently published “Diritto e Prassi del Commercio Internazionale” (CEDAM, 2010), vol. LIV of the “Trattato di Diritto Commerciale e di Diritto Pubblico dell’Economia“, one of the most authoritative Italian legal series, directed by Prof. Galgano.
A presentation has been kindly provided by the authors (the complete TOC is available on the publisher’s website):
The problems affecting cross-border transactions from a legal standpoint as well as arbitration have boomed in the last years. This book is the first systematic and accurate analysis of International Business Law updated to the most important reforms in the European Union such as: the Lisbon Treaty; Regulation Rome I on the law applicable to contractual obligations and Regulation Rome II on the law applicable to non contractual obligations. New competences for international trade negotiations have been attributed by Member States to the EU. Moreover, an entirely new choice of law regime has been introduced in the European Union affecting world international contracts and transnational arbitration. In addition,new instruments have been generated from the business side such as the new UCP 600 (the Uniform Customs and Practice for Documentary Credits, i.e. a set of rules on the issuance and use of letters of credit utilised by bankers and commercial parties in more than 175 countries in trade finance).
Beautifully written by two world reputed Authors in the field, the purpose of this work is to closely examine actors and sources of International Commercial Law with particular reference to contracts for the sale of goods and other forms of exports; licensing of intellectual property; and foreign direct investment.
Title: Diritto e Prassi del Commercio Internazionale, by Francesco Galgano and Fabrizio Marrella, CEDAM (series: Trattato di Diritto Commerciale e di Diritto Pubblico dell’Economia, vol. LIV), Padova, 2010, XLVIII-956 pages.
ISBN: 978-88-13-28228-8. Price: EUR 98.
European Commission Presents Proposal on Succession and Wills
According to a press release by the DG Freedom, Security and Justice (IP/09/1508), the long-awaited Proposal for a Regulation on succession and wills, whose presentation, initially expected in last March, had been significantly delayed, was finally released on 14 October 2009 by the European Commission.
The official reference should be the following: 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 fin. of 14 October 2009.
The text of the proposed regulation, along with the Commission’s explanatory memorandum, is not yet available on the institutional websites. Interested readers may have a look at the press release and at a basic set of Q&A (MEMO/09/447) prepared by the Commission. References to the preparatory studies, the 2005 Green Paper and the subsequent public consultation can be found in our previous post here.
Italian Commentary on Rome I Regulation
An extensive and thorough commentary on the Rome I Regulation – the first, to the best of my knowledge, to provide an article-by-article analysis of the rules of the new EC instrument on the law applicable to contractual obligations – has been published in the latest issue (no. 3-4/2009) of the Italian journal Le Nuove Leggi Civili Commentate , one of the most authoritative Italian law review, published bimonthly by CEDAM (Padova).
The commentary (nearly 450 pages) has been edited by Francesco Salerno and Pietro Franzina (both Univ. of Ferrara), and has been written by a team of Italian scholars: Paolo Bertoli (Univ. of Insubria), Giacomo Biagioni (Univ. of Cagliari), Bernardo Cortese (Univ. of Padova), Anna Gardella (Univ. Cattolica del Sacro Cuore, Milan), Antonio Leandro (Univ. of Bari), Fabrizio Marongiu Buonaiuti (Univ. of Rome “La Sapienza”), Giuseppina Pizzolante (Univ. of Bari), Paolo Venturi (Univ. of Siena). The same group of PIL experts had already published, back in 2007, a volume discussing the 2005 Rome I Commission’s Proposal (see our post here).
Here’s the comments’ list:
Introductory remarks: F. Salerno, F. Marongiu Buonaiuti; Art. 1: P. Bertoli (general comment and lit. i), G. Biagioni (lit. a-c), A. Gardella (lit. d–f), P. Franzina (lit. g–h), G. Pizzolante (lit. j); Art. 2: P. Franzina; Art. 3: A. Gardella, G. Biagioni; Art. 4: A. Leandro (general comment), P. Franzina (lit. a, c, d and g), F. Marongiu Buonaiuti (lit. b, e, and f), A. Gardella (lit. h); Art. 5: G. Biagioni; Arts. 6-7: G. Pizzolante; Art. 8: P. Venturi; Art. 9: G. Biagioni; Arts. 10-11: B. Cortese; Art. 12: A. Leandro; Art. 13: F. Marongiu Buonaiuti; Arts. 14-18: A. Leandro; Art. 19: F. Marongiu Buonaiuti; Art. 20: P. Franzina; Art. 21: G. Biagioni; Art. 22: P. Franzina; Art. 23: F. Marongiu Buonaiuti; Arts. 24-26: P. Franzina; Arts. 27-29: F. Marongiu Buonaiuti.
A detailed table of contents is available here.
New Book on Rome II
Brill / Martinus Nijhoff has recently published The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: A New International Litigation Regime. The book is edited by John Ahern and William Binchy of Trinity College Dublin. Full details of the book are available here. It can be ordered through this link from the publisher or web sites like Amazon.
The book is the result of a conference held in Dublin in June 2008. It contains fifteen chapters by authors from across Europe and North America.
Manitoba Law Reform Commission Releases Report on Private International Law
The province of Manitoba’s Law Reform Commission has released a report on Private International Law (available here). It considers three central issues:
1. Should legislation be adopted to modify the common law choice of law rule for torts as formulated in Tolofson v. Jensen?
2. Should legislation be adopted regarding the characterization of limitation periods?
3. Should Manitoba adopt the Uniform Law Conference of Canada’s model Court Jurisdiction and Proceedings Transfer Act?
A secondary question under the first issue is how similar the legislation should be to the English PIL(MP)Act 1995.