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.
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.
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).
As announced in the past months, on 16 March 2011 the Commission presented the proposals for two regulations on property rights of “international” married couples and registered partnerships:
The proposals are accompanied by a Communication from the Commission “Bringing legal clarity to property rights for international couples” – COM(2011) 125 of 16 March 2011 – which describes the difficulties faced by international couples in the current framework of EU legislation and national rules of the 27 Member States (see also the figures presented in the press release and the related FAQs).
The origin of the initiative dates back to the early days of the “communitarisation” of the conflict of laws. According to the Explanatory Memorandum to doc. COM(2011) 126:
The adoption of European legislation on matrimonial property regimes was among the priorities identified in the 1998 Vienna Action Plan. The programme on mutual recognition of decisions in civil and commercial matters adopted by the Council on 30 November 2001 provided for the drafting of an instrument on jurisdiction and the recognition and enforcement of decisions as regards ‘rights in property arising out of a matrimonial relationship and the property consequences of the separation of an unmarried couple’. The Hague programme, which was adopted by the European Council on 4 and 5 November 2004, set the implementation of the mutual recognition programme as a top priority and called on the Commission to submit a Green Paper on ‘the conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition’, and stressed the need to adopt legislation by 2011.
A thorough research on the matter was previously carried in 2003 at an academic level, on behalf of the Commission, by the TMC Asser Instituut and the Département de droit international of the Catholic University of Leuven (UCL) (the whole study – Final Report in French and Country Reports on the legislation of Member States – can be downloaded from the Documentation Centre of the DG Justice, Freedom and Security). The Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition, was published on 17 July 2006, and received nearly forty replies in the public consultation launched by the Commission.
The 2009 Stockholm Programme came back to the need of European legislation in the field, stating that mutual recognition should be extended to matrimonial property regimes and the property consequences of the separation of unmarried couples. The need was further stressed in the ‘EU Citizenship Report 2010: Dismantling the obstacles to EU citizens’ rights‘ (p. 5 ff.), adopted on 27 October 2010, where the Commission announced for 2011 an official legislative initiative. The drafting of the proposals is summarised as follows in the Explanatory memorandum:
A group of experts, PRM/III, was set up by the Commission to draw up the proposal. The group was made up of experts representing the range of professions concerned and the different European legal traditions; it met five times between 2008 and 2010. The Commission also held a public hearing on 28 September 2009 involving some hundred participants; the debates confirmed the need for an EU instrument for matrimonial property regimes that covered in particular applicable law, jurisdiction and the recognition and enforcement of decisions. A meeting with national experts was held on 23 March 2010 to discuss the thrust of the proposal being drafted.
Finally, the Commission conducted a joint impact study on the proposals for Regulations on matrimonial property regimes and the property consequences of registered partnerships. [see doc. n. SEC(2011) 327 fin. and SEC(2011)328 fin. of 16 March 2011]
Pursuant to Art. 81(3) TFEU the proposed regulations, as “measures concerning family law with cross-border implications”, are subject to a special legislative procedure: the Council shall act unanimously, after consulting the European Parliament. The second subparagraph of Art. 81(3), however, provides a “passerelle-clause”, under which “the Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure”. The third subparagraph of the provision grants to national Parliaments of the Member States a veto power, to be exercised within six months of the notification of the Commission’s proposal to enact the “passerelle”.
The Court of Appeal for Ontario has released Paulsson v. Cooper, 2011 ONCA 150 (available here). The plaintiff, an academic and author resident in Ontario, sued the defendants for publishing an allegedly libellous review of his book. The defendant publisher was incorporated in New York and had its national office in Massachusetts. The reviewer was an Australian academic.
The motions judge had held that Ontario lacked jurisdiction, but the Court of Appeal held that Ontario had jurisdiction and that no other forum was more appropriate for the resolution of the dispute. The court found that there was a “real and substantial connection” to Ontario. The court applied the orthodox analysis that the tort of libel was committed where the statement was read, and so had happened in Ontario. In addition, the place of the damage was Ontario since that was where the plaintiff’s reputation was located.
The case was perhaps easier than some other recent cases. The plaintiff’s connection to Ontario was quite strong on the facts; he was not a “libel tourist” who had sought out an advantageous forum. The publication was not over the internet, which raises greater complexity, but rather in printed form. The publisher had circulated 3528 copies, of which 81 were circulated in Ontario. Several of those 81 copies had ended up in academic or public-access libraries.
The court agreed with a key quotation from Barrick Gold Corp. v. Blanchard and Co. (2003), 9 B.L.R. (4th) 316 (Ont. S.C.J.): “If a person issues a statement and places that statement in a normal distribution channel designed for media attention and publication, a person ought to assume the burden of defending those statements, wherever they may damage the reputation of the target of those statements and thereby cause the target harm, as long as that harm occurred in a place that the originator of the statements ought reasonably to have had in his, her or its contemplation when the statements were issued.”
As noted in an earlier post on this forum, many of these issues are being heard by the Supreme Court of Canada later this month in four other cases being appealed from the Court of Appeal for Ontario.
The Italian publishing house Giuffrè has recently published a new book in the law dictionary series Dizionari del diritto privato, directed by Prof. Natalino Irti. The volume, Diritto internazionale privato, edited by Prof. Roberto Baratta, is entirely devoted to Private International Law.
It contains more than 60 entries relating to conflict of laws and jurisdictions, authored by prominent Italian PIL scholars. A detailed TOC is available here.
Title: Diritto internazionale privato, edited by Roberto Baratta, Giuffrè (series: Dizionari del Diritto privato), Milano, 2010, VI-566 pages.
ISBN: 978-88-14-15911-4. Price: EUR 65. Available at Giuffrè.
(Many thanks to Fabrizio Marongiu Buonaiuti, Univ. of Rome “La Sapienza”, for the tip-off)
On March 21, 22 and 25, 2011 the Supreme Court of Canada will hear appeals in four private international law cases. Each is a case in which the Ontario court has held that it has jurisdiction to hear the dispute and that the proceedings should not be stayed in favour of another forum.
Two of the cases – Van Breda (information here) and Charron (information here) – involve Ontarians who were killed or severely injured while on holiday in Cuba. They now seek to sue various foreign defendants in Ontario. These cases involve tourists in the traditional sense of the word. Two of the cases – Banro (information here) and Black (information here) – involve claims for defamation over the internet and damage to reputation in Ontario. There is some allegation that these cases involve what has become known as “libel tourism”, especially in England and in the United States.
Several parties have already been granted leave to appear as intervenors and others are seeking such leave. The decisions in these four cases could be very important for the Canadian law on jurisdiction.
The Supreme Court of Canada now posts PDFs of the written submissions of litigants as they are received, so those wanting more details about the cases should click on the “factums” button for each case.
In Kazemi (Estate of) v. Islamic Republic of Iran, 2011 QCCS 196 (available here) the estate of Zahra Kazemi and her son, Stephan Kazemi, sued Iran and certain state officials in Quebec, alleging that in 2003 Ms. Kazemi was tortured and assassinated in Iran. The defendants argued that the claim could not succeed due to state immunity.
Much of the court’s analysis involves the provisions of the State Immunity Act, R.S.C. 1985, c. S-18. The court has to consider whether this statute is a complete code on the issue of state immunity or whether it is open to courts to create exceptions to the statutory immunity beyond those listed in the statute. The court also has to address whether aspects of the statute are constitutional.
The court ends up concluding that the estate has no claim because the wrongs done to her occurred in Iran and so are covered by the immunity under the statute. However, the court allows the claim by Stephan Kazemi, a claim for his own losses arising from hearing the reports of what was done to his mother, to continue since his losses were suffered in Quebec, not Iran, and so the immunity does not cover them (see section 6 of the statute).
The decision is lengthy (220 paragraphs), and yet it does not mention the recent decision of the Supreme Court of Canada on state immunity: Kuwait Airways Corporation v. Republic of Iraq from October 2010.
Following our previous post on the forum on the Brussels I review currently hosted by the website of the Italian Society of International Law (SIDI-ISIL), another comment has been added, on the amendments proposed by the Commission in respect of lis pendens and related actions. The contribution is authored by Fabrizio Marongiu Buonaiuti (University of Rome “La Sapienza”), who has recently published an extensive monograph on the regime of lis pendens and related actions in Italian law, in the European regulations and in other international instruments (Litispendenza e connessione internazionale. Strumenti di coordinamento tra giurisdizioni statali in materia civile, Napoli, 2008):
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.