Tag Archive for: jurisdiction

New Book on Court Jurisdiction and Proceedings Transfer Act

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Thomson Reuters Carswell has just published Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act by Vaughan Black, Stephen G.A. Pitel and Michael Sobkin.  More information is available here.
 
The Court Jurisdiction and Proceedings Transfer Act puts the important topic of the jurisdiction of Canadian provincial courts in civil and commercial cases on a clearer statutory footing.  It is in force in British Columbia, Saskatchewan and Nova Scotia.  The approach to jurisdiction adopted under the CJPTA is different in several respects from the common law approach, and so provinces that have adopted it are undergoing a period of transition.  One of the key issues for courts in applying the CJPTA is interpreting its provisions and explaining how they operate.  Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act examines the growing body of cases and provides a comprehensive account of how the CJPTA is being interpreted and applied by the courts. 
 
The Supreme Court of Canada has, in its April 2012 decisions on jurisdiction, indicated a willingness to develop the common law in a way that is highly mindful of the approach taken under the CJPTA.  As a result, the analysis of the CJPTA will also be of use to those in Canadian common law provinces and territories that have not enacted the CJPTA. 
 
The book may also appeal as a comparative law resource on conflict of laws, especially to those interested in how traditional rules can be affected, directly and indirectly, by statutory reform.

 

Book: Pocar – Viarengo – Villata (Eds.), Recasting Brussels I

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The Italian publishing house CEDAM has published a new volume on the review of the Brussels I regulation: “Recasting Brussels I“. The book, edited by Fausto Pocar, Ilaria Viarengo and Francesca Clara Villata (all from the Univ. of Milan) includes twenty-five papers divided into five parts, devoted to the scope of application (I), rules on jurisdiction (II), choice-of-court agreements (III), coordination of proceedings (IV) and recognition and enforcement of judgments (V).

Here’s the table of contents (.pdf file):

PART I – SCOPE OF APPLICATION

  • Rainer Hausmann, The Scope of Application of the Brussels I Regulation;
  • Ilaria Viarengo, The Removal of Maintenance Obligations from the Scope of Brussels I;
  • Claudio Consolo – Marcello Stella, Brussels I Regulation Amendment Proposals and Arbitration;
  • Peter Kindler, Torpedo Actions and the Interface between Brussels I and International Commercial Arbitration;
  • Stefano Azzali – Michela De Santis, Impact of the Commission’s Proposal to Revise Brussels I Regulation on Arbitration Proceedings Administered by the Chamber of Arbitration of Milan.

PART II – RULES ON JURISDICTION

  • Burkhard Hess, The Proposed Recast of the Brussels I Regulation: Rules on Jurisdiction;
  • Riccardo Luzzatto, On the Proposed Application of Jurisdictional Criteria of Brussels I Regulation to Non-Domiciled Defendants;
  • Fausto Pocar, A Partial Recast: Has the Lugano Convention Been Forgotten?;
  • Alexander R. Markus, Harmonisation of the EU Rules of Jurisdiction Regarding Defendants Outside the EU. What About the Lugano Countries?;
  • Ruggiero Cafari Panico, Forum necessitatis. Judicial Discretion in the Exercise of Jurisdiction;
  • Marco Ricolfi, The Recasting of Brussels I Regulation from an Intellectual Property Lawyer’s Perspective;
  • Eva Lein, Jurisdiction and Applicable Law in Cross-Border Mass Litigation;
  • Zeno Crespi Reghizzi, A New Special Forum for Disputes Concerning Rights in Rem over Movable Assets: Some Remarks on Article 5(3) of the Commission’s Proposal.

PART III – CHOICE-OF-COURT AGREEMENTS

  • Ilaria Queirolo, Prorogation of Jurisdiction in the Proposal for a Recast of the Brussels I Regulation;
  • Christian Kohler, Agreements Conferring Jurisdiction on Courts of Third States;
  • Francesca C. Villata, Choice-of-Court Agreements in Favour of Third States’ Jurisdiction in Light of the Suggestions by Members of the European Parliament.

PART IV – COORDINATION OF PROCEEDINGS

  • Luigi Fumagalli, Lis Alibi Pendens. The Rules on Parallel Proceedings in the Reform of the Brussels I Regulation;
  • Pietro Franzina, Successive Proceedings over the Same Cause of Action: A Plea for a New Rule on Dismissals for Lack of Jurisdiction;
  • Lidia Sandrini, Coordination of Substantive and Interim Proceedings;
  • Cristina M. Mariottini, The Proposed Recast of the Brussels I Regulation and Forum Non Conveniens in the European Union Judicial Area.

PART V – RECOGNITION AND ENFORCEMENT OF JUDGMENTS

  • Sergio M. Carbone, What About the Recognition of Third States’ Foreign Judgments?;
  • Thomas Pfeiffer, Recast of the Brussels I Regulation: The abolition of Exequatur;
  • Stefania Bariatti, Recognition and Enforcement in the EU of Judicial Decisions Rendered upon Class Actions: The Case of U.S. and Dutch Judgments and Settlements;
  • Manlio Frigo, Recognition and Enforcement of Judgments on Matters Relating to Personality Rights and the Recast Proposal of the Brussels I Regulation;
  • Marco De Cristofaro, The Abolition of Exequatur Proceedings: Speeding up the Free Movement of Judgments while Preserving the Rights of the Defense.

– – –

Title: Recasting Brussels I, edited by F. Pocar, I. Viarengo and F.C. Villata, CEDAM (Series: Studi e pubblicazioni della Rivista di diritto internazionale privato e processuale – Volume 76), Padova, 2012, XXIV – 382 pages.

ISBN 9788813314699. Price: EUR 32,50. Available at CEDAM.

(Many thanks to Prof. Francesca Villata for the tip-off)

New Canadian Framework for Assumption of Jurisdiction

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After 13 months the Supreme Court of Canada has finally released its decisions in four appeals on the issue of the taking and exercising of jurisdiction.  The main decision is in Club Resorts Ltd v Van Breda (available here) which deals with two of the appeals.  The other two decisions are Breeden v Black (here) and Editions Ecosociete Inc v Banro Corp (here).

The result is perhaps reasonably straightforward: in all four cases the court upholds the decisions of both the motions judges and the Court of Appeal for Ontario.  All courts throughout held that Ontario had jurisdiction in these cases and that Ontario was not a forum non conveniens.

The reasoning is more challenging, and it will take some time for academics, lawyers and lower courts to work out the full impact of these decisions.  The court’s reasoning differs in several respects from that of the courts below.

The court notes that a clear distinction needs to be drawn between the constitutional and private international law dimensions of the real and substantial connection test.  This is an interesting observation, particularly in light of the fact that the court’s own decision is not as clear on this distinction as it could be.  I expect that going forward there will be different interpretations of what the court is truly saying on this issue.

The court is reasonably clear that the real and substantial connection test should not be used as a conflicts rule in itself.  It is not a rule of direct application.  Rather, it is a principle that informs more specific private international law rules governing the taking of jurisdiction.  This is a change from the approach used by provincial appellate courts, especially the Court of Appeal for Ontario, which arguably had been using the real and substantial connection test as its rule, at least in part, for establishing jurisdiction in service ex juris cases.

The court states that it is establishing the framework for the analysis of jurisdiction.  Going forward, a real and substantial connection must be found through a “presumptive connecting factor” which is a factor that triggers a presumption of such a connection.  The presumption can be rebutted.  If the plaintiff cannot establish such a presumption, the court cannot take jurisdiction.  This last point is perhaps the largest change made to the law.  On the law as it stood, the plaintiff could establish jurisdiction through a variety of non-presumptive factual connections that collectively amounted to a real and substantial connection to the forum.  That approach is rejected by the Supreme Court of Canada.

The court does not purport to set out a complete list of presumptive connections.  It confines itself to identifying some such connections that could apply in tort cases, namely that (a) the defendant is domiciled or resident in the forum, (b) the defendant carries on business in the forum, (c) the tort was committed in the forum, and (d) a contract connected with the dispute was made in the forum.  It is quite open, on the language in the decisions, as to what other presumptive connections lower courts will need to be finding in other cases.  One possible solution is that lower courts will largely continue to follow the recent approach of the Court of Appeal for Ontario that the enumerated bases for service ex juris, subject to some exceptions, amount to such presumptive connections.

The decisions also address the test for the doctrine of forum non conveniens.   Three points can be made about that analysis.  First, the language suggests the burden is always on the defendant/moving party.  Second, emphasis is placed on “clearly” in “clearly more appropriate”, suggesting that it will be harder to displace the plaintiff’s choice of forum.  Third, the court cautions against giving too much weight to juridical advantage factors.  Judges should avoid invidious comparisons across forums and refrain from “leaning too instinctively” in favour of the judge’s own forum.

The decisions are not a radical break with the earlier cases but they do change the law on taking jurisdiction in several respects.  In addition, the court makes several points along the way, as asides, that will impact other aspects of the conflict of laws.  For example, the court confirms the propriety of taking jurisdiction based on the defendant’s presence in the forum.

Supreme Court of Canada Affirms Importance of Jurisdiction Agreements

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In Momentous.ca Corp v Canadian American Assn of Professional Baseball Ltd, 2012 SCC 9 (available here) the court has affirmed its willingness to give effect to exclusive jurisdiction agreements in favour of a foreign forum. 

The decision is brief (12 paragraphs) and was released only just over a month after the case was argued.  It is a unanimous decision by the seven judges. 

Academic commentary about the decision has been quite mixed.  I am not aware that anyone thinks the decision is wrong.  There is much consensus that the court reached the correct result: the defendant should have been able to rely on the jurisdiction agreement in favour of North Carolina to resist proceedings in Ontario.  But there is much disagreement about the quality of the brief reasons.

One problem I have with the reasons is that I think the court confuses a dismissal of proceedings based on a lack of jurisdiction with a stay of proceedings.  Despite the words used, my sense is that what the defendants were seeking was a stay, not a dismissal.  The court’s repeated references to discretion (paras 9 and 10) are because what the court is really considering is a stay.  There is no discretion in the assessment of jurisdiction: the court either has it or does not have it as a matter of law.  Yet the court repeatedly refers to the remedy as a dismissal rather than a stay.  This is a mixing of two fundamentally different concepts.  If we take the court at its word, there is now the discretion to hold a court lacks jurisdiction.

The court relies on Rule 21.01(3)(a) which deals with challenges based on the court’s lack of subject matter jurisdiction.  In my view, that is not the basis for motions seeking to enforce jurisdiction clauses.  Such clauses do not deprive a court of jurisdiction over subject matter.  Absent the clause the court clearly had jurisdiction over the subject matter of the dispute.  If no one had invoked the clause the litigation would have carried on in Ontario.  And is there any doubt that a jurisdiction clause in favour of Ontario, rather than a foreign forum, is a matter of territorial jurisdiction and not subject matter jurisdiction?  Parties cannot confer subject matter jurisdiction on a court by contract.  Yet in the wake of this decision, we now have to grapple with the notion that jurisdiction clauses are about subject matter jurisdiction, not territorial jurisdiction.

There are many other interesting issues left unresolved by the court, so the brevity of the decision is a disappointment.

Quebec Court Refuses Jurisdiction on Forum of Necessity Basis

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There has not been much to report from Canada for the past few months.  The Supreme Court of Canada’s jurisdiction decision in the Van Breda quartet of cases is still eagerly awaited.  There was some thought these decisions would be released by the end of February but it now appears that will not happen.  These cases were argued in March 2011.

Fortunately, Professor Genevieve Saumier of McGill University has written the following analysis of a recent Quebec Court of Appeal decision which might be of interest in other parts of the world.  The case is ACCI v. Anvil Mining Ltd., 2012 QCCA 117 and it is available here (though only in French, so I appreciate my colleague’s summary).  I am grateful to Professor Saumier for allowing me to post her analysis.

In April 2011, a Quebec court concluded that it had jurisdiction to hear a civil liability claim against Anvil Mining Ltd. for faults committed and damages inflicted in the Democratic Republic of Congo where the defendant exploits a copper mine.

The facts behind the claim related to actions alleged to have been taken by the defendant mining company in the course of a violent uprising in Kilwa in the Democratic Republic of Congo in October 2004 that caused the deaths of several Congolese (the number is disputed). In essence, the plaintiff alleges that the defendant collaborated with the army by providing them with trucks and logistical assistance.

The defendant, Anvil Mining Ltd, is a Canadian company with its head office in Perth, Australia. Its principal if not its only activity is the extraction of copper and silver from a mine in Congo. Since 2005, the company has rented office space in Montreal for its VP (Corporate Affairs) and his secretary. It is on the basis of this connection to the province of Quebec that the plaintiff launched the suit there. The plaintiff is an NGO that was constituted for the very purpose of instituting a class action against the defendant, for the benefit of the victims of the 2004 insurgency in Congo.

The defendant contested both the Quebec court’s jurisdiction and, in the alternative, invoked forum non conveniens to avoid the exercise of jurisdiction. At first instance, the court held that it had jurisdiction over the defendant on the basis of its establishment in Quebec (the office in Montreal) and that the claim was related to the activities of the defendant in Montreal (the two conditions for jurisdiction under 3148(2) Civil Code of Quebec given the foreign domicile of the defendant). Interpreting this second conditions broadly, the court held that the VP’s frequent visits to Congo and his activities to attract investors in Quebec were linked to the defendant’s activities in Congo and therefore to the claims based on those activities.

In rejecting the alternative forum non conveniens defense to the exercise of jurisdiction, the court considered the other fora allegedly available to the plaintiffs, namely Congo and Australia. A claim had already been made before a Congolese military court but it had been rejected. The plaintiff claimed that the process before the Congolese court, competent to hear the claim, was in breach of fundamental justice for a number of reasons. As to the Australian court, the plaintiff claimed that an attempt to secure legal representation in that country had failed because of threats made by the Congolese regime against both the victims and the lawyers they were seeking to hire in Australia. The Quebec court accepted this evidence and held that the defendants had failed to show that another forum was more appropriate to hear the case, a requirement under art. 3135 C.C.Q. It appears that the plaintiffs had also presented an argument based on art. 3136 C.C.Q. (“forum of necessity”), but since jurisdiction was established under art. 3148 and forum non conveniens was denied, the court decided not to respond to the argument based on forum of necessity. Still, the court did state that “at this stage of the proceedings, it does appear that if the tribunal declined jurisdiction on the basis of art. 3135 C.C.Q., there would be no other forum available to the victims,” suggesting that Quebec may well be a “forum of necessity” in this case.

Leave to appeal was granted and the Quebec Court of Appeal reversed, in a judgment published on 24 January 2012. The Court of Appeal held that the conditions to establish jurisdiction under art. 3148(2) C.C.Q. had not been met. As a result of that conclusion, it did not need to deal with the forum non conveniens aspect of the first instance decision. This made it necessary to deal with the “forum of necessity” option, available under art. 3136 C.C.Q. The Court found that the plaintiff had failed to show that it was impossible to pursue the claim elsewhere and that there existed a sufficient connection to Quebec to meet the requirements of article 3136 C.C.Q. In other words, the plaintiff had the burden to prove that Quebec was a forum of necessity and was unable to meet that burden.

The reasons for denying the Quebec court’s jurisdiction under art. 3148(2) C.C.Q. are interesting from the perspective of judicial interpretation of that provision but are not particular to human rights litigation. Essentially the Court of Appeal found that the provision did not apply because the defendant’s Montreal office was open after the events forming the basis of the claim. This holding on the timing component was sufficient to deny jurisdiction under 3148(2) C.C.Q. The Court also held that even if the timing had been different, it did not accept that there was a sufficient connection between the activities of the vice president in Montreal and the actions underlying the claim to satisfy the requirements of the provision.

The reasoning on art. 3136 C.C.Q. and the forum of necessity, however, are directly relevant to human rights litigation in an international context. Indeed, one of the challenges of this type of litigation is precisely the difficulty of finding a forum willing to hear the claim and able to adjudicate it according to basic principles of fundamental justice.  In the Anvil case, the victims had initially sought to bring a claim in the country where the injuries were inflicted and suffered. While the first instance court had accepted evidence from a public source according to which that process was tainted, the Court of Appeal appeared to give preference to the defendant’s expert evidence (see para. 100).

The Court of Appeal does not quote from that expert’s evidence whereas the trial judge’s reasons contain a long extract of the affidavit. And while the extract does not include the statement referred to by the Court of Appeal, it does include a statement according to which an acquittal in a penal court is res judicata on the issue of fault in a civil proceeding based on the same facts.

The obvious alternative forum was in Perth, Australia, where the defendant company had its headquarters (and therefore its domicile under Quebec law). There too the victims had sought to bring a claim but were apparently unable to secure legal representation or pursue that avenue due to allegedly unlawful interference by the defendant and government parties in the Republic of Congo. While the first instance judge had accepted the plaintiff’s evidence that Australia was not an available forum, the Court of Appeal quickly dismissed this finding, without much discussion.

Finally, the Court of Appeal returned to its initial findings regarding the interpretation of art. 3148 C.C.Q. to conclude that there was, in any event, an insufficient connection between Anvil and Quebec to meet that condition for the exercise of the forum on necessity jurisdiction. The court did not consider that under art. 3136 C.C.Q. it is unlikely that the timing of the connection should be the same as under 3148(2) C.C.Q. given the exceptional nature of the former basis for jurisdiction and the likelihood that the connections to the forum of necessity could arise after the facts giving rise to the claim.

The decision of the Court of Appeal in Quebec is disappointing in so far as its interpretation of the forum of necessity provision in the Civil Code of Quebec is quite narrow, particularly as regards the condition of a connection with Quebec; moreover, its application of the provision to the facts of the case deals rather summarily and dismissively with findings of fact made by the first instance judge without sufficient justification for its rejection of the evidence provided by the plaintiff and relied upon by the trial judge. Given the nature of the claims and of the jurisdictional basis invoked, it was incumbent on the Court of Appeal to provide better guidance for future plaintiffs as to what type of evidence will be required to support an article 3136 C.C.Q. jurisdictional claim and to what extent trial court findings in relation to such evidence will be deferred to in the absence of an error of law.

Italo-German Cooperation in the Brussels I Recast: Conference in Milan (25-26 November 2011)

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The University of Milan will host a two-day conference on 25 and 26 November 2011 on the review of the Brussels I regulation, organized with the University of Padova, the University of Heidelberg and the Ludwig-Maximilians-Universität München: “Cooperazione Italo-Tedesca nella revisione del Regolamento Bruxelles I – Deutsch-Italienische Kooperation im Rahmen der Neufassung der Brüssel I-Verordnung“. The working languages will be English, Italian and German. Here’s the programme (.pdf):

I Session: Friday 25 November 2011, 10h00

Saluti introduttivi – Grußworte: Prof. Dr. Marino Regini (Università degli Studi di Milano); Prof. Dr. Angela Lupone (Università degli Studi di Milano)

Chair: Prof. Dr. Ilaria Viarengo (University of Milan)

  • Prof. Dr. Rainer Hausmann (Universität Konstanz): L’ambito di applicazione del regolamento – Der Anwendungsbereich der Verordnung;
  • Prof. Dr. Andrea Gattini (Università degli Studi di Padova): I rapporti con le convenzioni internazionali – Das Verhältnis zu internationalen Abkommen;
  • Prof. Dr. Burkhard Hess (Universität Heidelberg): La competenza in materia di liti patrimoniali- Die Gerichtsbarkeit für vermögensrechtliche Streitigkeiten;
  • Prof. Dr. Ruggiero Cafari Panico (Università degli Studi di Milano): Il forum necessitatis – Die Notzuständigkeit (forum necessitatis).

–  –  –  –

II session: Friday 25 November 2011, 14h00

Chair: Prof. Dr. Peter Kindler (Ludwig-Maximilians-Universität München)

  • Prof. Dr. Claudio Consolo (Università degli Studi di Padova): La proposta di revisione del Regolamento Bruxelles I e l’arbitrato – Der Vorschlag zur Revision der Brüssel I-Verordnung und die Schiedsgerichtsbarkeit;
  • Prof. Dr. Christian Kohler (Universität Saarbrücken) – Prof. Dr. Ilaria Queirolo (Università degli Studi di Genova): Gli accordi di proroga della giurisdizione nella proposta di revisione del regolamento Bruxelles I – Die Gerichtsstandsvereinbarung im Vorschlag zur Neufassung der Brüssel I-Verordnung;
  • Prof. Dr. Luigi Fumagalli (Università degli Studi di Milano): La litispendenza – Die Rechtshängigkeit.

–  –  –  –

III session: Saturday 26 November 2011, 9h00

Chair: Prof. Dr. Kurt Siehr (Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg)

  • Prof. Dr. Marco De Cristofaro (Università degli Studi di Padova) – Prof. Dr. Thomas Pfeiffer (Universität Heidelberg): L’abolizione dell’exequatur – Die Abschaffung des Exequaturverfahrens;
  • Prof. Dr. Manlio Frigo (Università degli Studi di Milano): Il riconoscimento e l’esecuzione delle decisioni in materia di diffamazione – Die Anerkennung und Vollstreckung von Entscheidungen bei Verleumdungsklagen;
  • Prof. Dr. Stefania Bariatti (Università degli Studi di Milano): Il riconoscimento e l’esecuzione delle decisioni rese a seguito di class action – Die Anerkennung und Vollstreckung von Entscheidungen ergangen aufgrund einer Sammelklage (class action).

–  –  –  –

Round Table: Saturday 26 November 2011, 11h15

Tavola rotonda sull’impatto della revisione del Regolamento sull’ordinamento italiano e sull’ordinamento tedesco – Podiumsdiskussion zu den Auswirkungen der Revision der Verordnung auf das italienische und das deutsche Recht

Chair: Prof. Dr. Fausto Pocar (Università degli Studi di Milano)

  • Prof. Stefano Azzali (Camera Arbitrale di Milano)
  • Prof. Dr. Sergio M. Carbone (Università degli Studi di Genova)
  • Prof. Dr. Herbert Kronke (Universität Heidelberg)
  • Prof. Dr. Riccardo Luzzatto (Università degli Studi di Milano)
  • Prof. Dr. Alexander R. Markus (Universität Bern)
  • Prof. Dr. Marco Ricolfi (Università degli Studi di Torino – Studio Tosetto, Weigmann & Associati)

The event is organized under the patronage of the Italo-German Chamber of Commerce and Chamber of arbitration of Milan, and with the financial support of: Ateneo Italo-Tedesco; Law firm Gebhard (Milan, Stuttgart); Law firm Tosetto, Weigmann & Associati (Turin, Milan, Rome); “Associazione per gli scambi culturali tra giuristi italiani e tedeschi”.

For further information and registration, see the programme and the conference’s webpage.

(Many thanks to Prof. Francesca Villata, University of Milan, for the tip-off)

Clearer Patrimonial Regimes for International Couples: Joint Conference of the European Commission and CNUE

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On Monday 17 October 2011 the Council of the Notariats of the European Union (CNUE) is organising, jointly with the EU Commission, a conference in Brussels on the proposals for two regulations on property rights of “international” married couples and registered partnerships: “Clearer Patrimonial Regimes for International Couples”. A dedicated section of the CNUE website has been set up for the event, for further information and registration (there are still some places left to attend the conference). Here’s the programme (interpretation will be available in English, French, German, Italian, Polish, Romanian and Spanish):

9.30 – 9.40 Opening: Rudolf Kaindl, CNUE President

9.40 – 10.20 Keynote speeches:

  • Viviane Reding, Vice-President of the European Commission
  • Frank Molitor, President of the Luxembourg Chamber of Notaries

10.20 – 10.40 Proposals for Regulations on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and regarding the property consequences of registered partnerships: Salla Saastamoinen, Head of Unit, DG Justice, European Commission

11.00 – 12.40 Panel discussion: Session 1 – The applicable law

Moderator: Prof. Katharina Boele-Woelki, University of Utrecht

Speakers:

  • Prof. Paul Lagarde, University of Paris I “Panthéon Sorbonne”
  • Prof. Brigitta Lurger, University of Graz
  • Prof. Barbara Reinhartz, University of Amsterdam
  • Franco Salerno Cardillo, Civil Law Notary in Palermo
  • Alexandra Thein, Member of the European Parliament
  • Richard Frimston, STEP, Solicitor and Notary Public in London

14.00 – 15-15 Panel discussion: Session 2 – The competent court

Moderator: Sjef van Erp, Maastricht University, Deputy-Justice, Court of Appeal, ‘s-Hertogenbosch

Speakers:

  • Ulf Bergquist, Lawyer in Stockholm
  • Prof. Patrick Wautelet, University of Liège
  • Katarzyna Lis, Judge, Polish Ministry of Justice

15.15 – 16.30 Panel discussion: Session 3 – Recognition and enforcement in cross-border cases

Moderator: Pedro Carrión García de Parada, Chair of the CNUE’s Family Law Working Group

Speakers:

  • Matthias Neumayr, Judge at the Austrian Supreme Court
  • Prof. Philippe De Page, Université Libre de Bruxelles
  • Prof. Dieter Martiny, European University Viadrina
  • Edmond Jacoby, Civil Law Notary in Forbach

16.30 – 17.00 Information session – More information and services for European citizens

  • The patrimonial property regimes website project, Harald Steinwendter, University of Graz
  • The European Directory of Notaries, Thomas Diehn, Federal Council of the German Notariat

17.00 – 17.30 Closing speech: Paraskevi Michou, Director, DG Justice, European Commission.

 

European Parliament’s Workshop on the Brussels I Proposal (rescheduled)

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The workshop organized by the EP JURI Committee on the review of the Brussels I regulation, originally scheduled on 20 September 2011 (see our previous posts here and here) is taking place in Brussels this morning (h 10.00 – 12.00).

The live video streaming is broadcasted on this page. The link to the recorded session can be found here.

Jurisdiction Based on a Domain Name

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In Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548 (available here) the Court of Appeal for Ontario considered whether to take jurisdiction in a dispute over the ownership of an internet domain name. 

Tucows is a Nova Scotia corporation with its principal office in Ontario.  Renner is a Brazilian corporation operating a series of retail department stores.  Tucows bought 30,000 domain names from another corporation, and one of the names was renner.com.  Tucows is the registrant of that domain name with the internationally-recognized non-profit organization, the Internet Corporation for Assigned Names and Numbers (ICANN).  Renner complained to WIPO and in response Tucows sued in Ontario, seeking a declaration that it was the owner of the domain name.  Renner objected to Ontario’s jurisdiction over the dispute.

The core issue was whether this dispute concerned “personal property in Ontario”.  An earlier decision of the Ontario Superior Court, Easthaven Ltd. v. Nutrisystem.com Inc. (2001), 55 O.R. (3d) 334 (S.C.J.), had concluded that because a domain name lacks a physical existence it was not “property in Ontario” and the mere fact the domain name was registered through a corporation that happened to carry on business in Ontario (the domain name Registrar) did not give it a physical presence here.

The court reviewed several scholarly articles on the issue from around the world and also considered jurisprudence from several other countries, including the United States, the United Kingdom and Australia.  It concluded that the emerging consensus appears to be that domain names are a form of property.  After a further analysis of the nature of personal property, the court concluded that a domain name is personal property.  Further, the connecting factors favouring location of the domain name in Ontario were held to be the location of the registrant of the domain name and the location of the registrar and the servers as intermediaries.  On this basis the court found the domain name in issue to be personal property in Ontario, and thus took jurisdiction under the approach in Van Breda (discussed in an earlier post).

The case discusses several other issues, including (i) the relationship between the dispute settlement mechanism provided by WIPO and civil litigation and (ii) the propriety of a claim to obtain a declaration as a remedy.

Franzina on Jurisdiction Regarding Rights in Rem in Moveable Property in the Brussels I Review

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Pietro Franzina (University of Ferrara) has posted “The Proposed New Rule of Special Jurisdiction Regarding Rights in Rem in Moveable Property: A Good Option for a Reformed Brussels I Regulation?” on SSRN.  The abstract reads:

On 14 December 2010, the European Commission published a proposal for the recasting of regulation No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I). The proposal purports, inter alia, to add a provision granting non-exclusive jurisdiction “as regards rights in rem and possession in moveable property” to “the courts for the place where the property is situated”. The paper examines the scope of application of the proposed new rule and the connecting factor it employs, in an attempt to determine whether it would be a useful addition to the existing rules on jurisdiction in civil and commercial matters in Europe. It concludes that, although it may in some cases (and subject to some conditions) serve the goals of proximity of predictability underlying the special heads of jurisdiction of the Brussels I regulation, the provision would bring more disadvantages than advantages, and suggests that the Commission’s proposal in this respect should better be abandoned.

The article is forthcoming in “Diritto del Commercio Internazionale” (issue 3/2011).