Tag Archive for: private international law

Supreme Court of Canada: Israel, not Ontario, is Forum Conveniens for Libel Proceedings

The decision to stay proceedings under the doctrine of forum non conveniens is discretionary, which in part means that appeal courts should be reluctant to reverse the decisions of motions judges on the issue.  It comes as some surprise, therefore, that the Supreme Court of Canada has disagreed with not only the motions judge but also the Court of Appeal for Ontario and overturned two earlier decisions denying a stay.  In Haaretz.com v Goldhar (available here) the court held (in a 6-3 decision) that the plaintiff’s libel proceedings in Ontario should be stayed because Israel is the clearly more appropriate forum.

The decision is complex, in part because the appeal also considered the issue of jurisdiction and in part because the nine judges ended up writing five sets of reasons, four concurring in the result and a fifth in dissent.  That is very unusual for Canada’s highest court.

The case concerned defamation over the internet.  The plaintiff, a resident of Ontario, alleged that an Israeli newspaper defamed him.  Most readers of the story were in Israel but there were over 200 readers in Ontario.

On assumed jurisdiction, the court was asked by the defendant to reconsider its approach as set out in Club Resorts (available here), at least as concerned cases of internet defamation.  Eight of the nine judges refused to do so.  They confirmed that a tort committed in Ontario was a presumptive connecting factor to Ontario, such that it had jurisdiction unless that presumption was rebutted (and they held it was not).  They also confirmed the orthodoxy that the tort of defamation is committed where the statement is read by a third party, and that in internet cases this is the place where the third party downloads and reads the statement (paras 36-38 and 166-167).  Only one judge, Justice Abella, mused that the test for jurisdiction should not focus on that place but instead on “where the plaintiff suffered the most substantial harm to his or her reputation” (para 129).  This borrows heavily (see para 120) from an approach to choice of law (rather than jurisdiction) that uses not the place of the tort (lex loci delicti) but rather the place of most substantial harm to reputation to identify the applicable law.

On the stay of proceedings, six judges concluded that Israel was the most appropriate forum.  Justice Cote wrote reasons with which Justices Brown and Rowe concurred.  Justice Karakatsanis disagreed with two key points made by Justice Cote but agreed with the result.  Justices Abella and Wagner also agreed with the result but, unlike the other seven judges (see paras 91 and 198), they adopted a new choice of law rule for internet defamation.  This was a live issue on the stay motion because the applicable law is a relevant factor in determining the most appropriate forum.  They rejected the lex loci delicti rule from Tolofson (available here) and instead used as the connecting factor the place of the most substantial harm to reputation (paras 109 and 144).  Justice Wagner wrote separately because he rejected (paras 147-148) Justice Abella’s further suggestion (explained above) that the law of jurisdiction should also be changed along similar lines.

The core disagreement between Justice Cote (for the majority) and the dissent (written jointly by Chief Justice McLachlin and Justices Moldaver and Gascon) was that Justice Cote concluded that the motions judge made six errors of law (para 50) in applying the test for forum non conveniens, so that no deference was required and the court could substitute its own view.  In contrast, the dissent held that four of these errors were “merely points where our colleague would have weighed the evidence differently had she been the motions judge” (para 179) which is inappropriate for an appellate court and that the other two errors were quite minor and had no impact on the overall result (para 178).  The dissent held strongly to the orthodox idea that decisions on motions to stay are entitled to “considerable deference” (para 177) lest preliminary motions and appeals over where litigation should occur undermine stability and increase costs (para 180).

Another fundamental disagreement between Justice Cote and the dissent was their respective view of the scope of the plaintiff’s claim.  During the motion and appeals, the plaintiff made it clear that he was only seeking a remedy in respect of damage to his reputation in Ontario (as opposed to anywhere else) and that he was not going to sue elsewhere.  The dissent accepted that this undertaking to the court limited the scope of the claim (paras 162-163) and ultimately it pointed to Ontario as the most appropriate forum.  In contrast, Justice Cote held that the plaintiff’s undertaking “should not be allowed to narrow the scope of his pleadings” (para 23).  It is very hard to accept that this is correct, and indeed on this point Justice Karakatsanis broke with Justice Cote (para 101) and agreed with the dissent.  Why should the court not accept such an undertaking as akin to an amendment of the pleadings?  Justice Cote claimed that “[n]either Goldhar nor my colleagues … may now redefine Goldhar’s action so that it better responds to Haaretz’s motion to stay” (para 24).  But why should the plaintiff not be able to alter the scope of his claim in the face of objections to that scope from the defendant?

There are many other points of clash in the reasons, too many to engage with fully here.  How important, at a preliminary stage, is examination of what particular witnesses who have to travel might say?  What role does the applicable law play in the weighing of the more appropriate forum when it appears that each forum might apply its own law?  Does a subsequent proceeding to enforce a foreign judgment count toward a multiplicity of proceedings (which is to be avoided) or do only substantive proceedings (on the merits) count?  Is it acceptable for a court to rely on an undertaking from the plaintiff to pay the travel and accommodation costs for the defendant’s witnesses or is this allowing a plaintiff to “buy” a forum?

It might be tempting to treat the decision as very much a product of its specific facts, so that it does not offer much for future cases.  There could, however, be cause for concern.  As a theme, the majority lauded “a robust and careful” assessment of forum non conveniens motions (para 3).  If this robust and careful assessment is to be performed by appellate courts, is this consistent with deference to motions judges in their discretionary, fact-specific analysis?  The dissent did not think so (para 177).

Symposium Publication: Court Jurisdiction and Proceedings Transfer Act

The most recent issue of the Osgoode Hall Law Journal (available here) is a special issue, guest edited by Janet Walker, Gerard Kennedy and Sagi Peari, considering the Court Jurisdiction and Proceedings Transfer Act.  This statute governs the taking of jurisdiction and both staying and transferring proceedings in civil and commercial matters in three Canadian provinces: British Columbia, Nova Scotia and Saskatchewan.

The abstract to the introductory article states: “In 2016, the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) marked its tenth year in force.  Promulgated by the Uniform Law Conference of Canada, and adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA was developed to clarify and advance the law of judicial jurisdiction.  In a symposium hosted by Osgoode Hall Law School, ten leading scholars were invited to present papers on specific questions in order to assess the promise of the CJPTA to meet the needs of Canadians in the years ahead and to provide leadership for the law in other parts of Canada.  This article provides an overview of the issues discussed in the symposium; it places the papers that were presented in the larger context of developments in the law of judicial jurisdiction in Canada and internationally; and it summarizes in an appendix the drafting reforms that might be made to the Act.”

The articles about the CJPTA are:

Judicial Jurisdiction in Canada: The CJPTA—A Decade of Progress (Janet Walker)

Six of One, Half a Dozen of the Other? Jurisdiction in Common Law Canada (Stephen G.A. Pitel)

Jurisdiction Motions and Access to Justice: An Ontario Tale (Gerard J. Kennedy)

Has the CJPTA readied Canada for the Hague Choice of Court Convention? (Geneviève Saumier)

General Jurisdiction over Corporate Defendants under the CJPTA: Consistent with International Standards? (Catherine Walsh)

Residual Discretion: The Concept of Forum of Necessity under the Court Jurisdiction and Proceedings Transfer Act (Michael Sobkin)

Three Objections to Forum of Necessity: Global Access to Justice, International Criminal Law, and Proper Party (Sagi Peari)

Cross-Border Transfers of Court Proceedings (Vaughan Black)

The Court Jurisdiction and Proceedings Transfer Act and the Hague Conference’s Judgments and Jurisdiction Projects (Joost Blom)

New Article: Jurisdiction Clauses in Canada

Tanya Monestier (Roger Williams University School of Law) has published an article (available here) addressing the Supreme Court of Canada’s decision in Douez v Facebook, Inc. (available here).

The abstract reads: Every day, billions of people use the online social media platform, Facebook.  Facebook requires, as a condition of use, that users “accept” its terms and conditions — which include a forum selection clause nominating California as the exclusive forum for dispute resolution.  In Douez v. Facebook, the Supreme Court of Canada considered whether this forum selection clause was enforceable, or whether the plaintiff could proceed with her suit in British Columbia.  The Supreme Court of Canada ultimately decided that the forum selection clause was not enforceable.  It held that the plaintiff had established “strong cause” for departing from the forum selection clause.  The Court premised its decision on two primary considerations: the contract involved a consumer and was one of adhesion, and the claim involved the vindication of privacy rights. The Court’s analysis suffers from several major weaknesses that will undoubtedly cause confusion in this area of law.  This Article will examine those weaknesses, and argue that the Supreme Court of Canada actually abandoned the strong cause test that it claimed to be applying.  The consequence of the Douez decision is that many forum selection clauses — at least in the consumer context — will be rendered unenforceable.  While this may be a salutary development from the perspective of consumer protection, it will undoubtedly have an effect on companies choosing to do business in Canada.

Child Abduction and Habitual Residence in the Supreme Court of Canada

The Supreme Court of Canada, in Office of the Children’s Lawyer v Balev (available here), has evolved the law in Canada on the meaning of a child’s habitual residence under Article 3 of the Hague Convention.  The Convention deals with the return of children wrongfully removed from the jurisdiction of their habitual residence.

A majority of the court identifies [paras 4 and 39ff] three possible approaches to habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.  The parental intention approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.  This approach has been the dominant one in Canada.  In contrast, the hybrid approach, instead of focusing primarily on either parental intention or the child’s acclimatization, looks to all relevant considerations arising from the facts of the case.  A majority of the court, led by the (now retired) Chief Justice, holds that the law in Canada should be the hybrid approach [paras 5 and 48].  One of the main reasons for the change is that the hybrid approach is used in many other Hague Convention countries [paras 49-50].

The dissent (three of the nine judges) would maintain the parental intention approach [para 110].  One of its central concerns is the flexibility and ambiguity of the hybrid approach [para 111], which the judges worry will lead to less clarity and more litigation.  Wrongful removal cases will become harder to resolve in a timely manner [paras 151-153].

The majority did not apply the law to the facts of the underlying case, it having become moot during the process of the litigation [para 6].  The court rendered its decision to provide guidance going forward.  The dissent would have denied the appeal on the basis that the child’s habitual residence was in Germany (as the lower courts had held).

The court briefly addresses the exception to Article 3 in what is commonly known as “Article 13(2)” (since it is not numbered as such) – a child’s objection to return – setting out its understanding of how to apply it [paras 75-81 and 157-160].

The Supreme Court of Canada has recently adopted the practice of preparing summaries of its decisions (available here for this decision) to make them more accessible to the media and the public.  These are called “Cases in Brief”.

UKSC on Traditional Rules of Jurisdiction: Brownlie v Four Seasons Holdings Incorporated

Shortly before Christmas the UKSC released its decision on jurisdiction in Brownlie v Four Seasons Holdings Incorporated (available here). Almost all the legal analysis is obiter dicta because, on the facts, it emerges that no claim against the British Columbia-based holding corporation could succeed (para 15) and the appeal is allowed on that basis. I suppose there is a back story as to why it took a trip to the UKSC and an extraordinary step by that court (para 14) for the defendant to make those facts clear, but I don’t know what it is. On the facts there are other potential defendants to the plaintiffs’ claim and time will tell whether jurisdictional issues arise for them.

The discussion of the value of the place of making a contract for jurisdiction purposes is noteworthy. In para 16 two of the judges (Sumption, Hughes) are critical of using the traditional common law rules on where a contract is made for purposes of taking jurisdiction. This has been the subject of debate in some recent Canadian decisions, notably the difference in approach between the Court of Appeal for Ontario and the Supreme Court of Canada in Lapointe Rosenstein Marchand Melançon LLP v Cassels Brock & Blackwell LLP, 2016 SCC 30 (available here). The SCC was fine with using the traditional rules for this purpose. In Brownlie, I do not think it is clear as to what view the other three judges take on this point.

Even more interestingly, the UKSC judges split 3-2 on how to understand the idea of damage in the forum as a basis for jurisdiction. Three judges (Hale, Wilson, Clarke) retain the traditional broad common law view – the position in many Canadian provinces prior to Club Resorts Ltd v Van Breda, 2012 SCC 17 (available here) – that ongoing suffering in the forum in respect of a tort that happened abroad is sufficient. Two judges (Sumption, Hughes) reject that approach and adopt a more narrow meaning of damage in the forum (it must be direct damage only).

This 3-2 split is closer even than it might first seem, since Lord Wilson (para 57) suggests that in a different case with fuller argument on the point the court might reach a different result.

Canadian law does not get a fair description in the UKSC decision. The court notes twice (para 21 and para 67) that Canada’s common law uses a broad meaning of damage for taking jurisdiction. Club Resorts, and the change to the law it represents on this very issue, is not mentioned. This is yet another illustration of the importance of being careful when engaging in comparative law analysis.

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

New Article: Conflict of Laws and Relational Feminism

Readers of this blog might be interested in Roxana Banu, “A Relational Feminist Approach to Conflict of Laws” (2017) 24 Mich. J. Gender & L. 1.  It can be accessed through SSRN at this location.

The specific context is transnational surrogacy arrangements, but much of the article goes beyond that to other areas of the field more generally.  The article engages with work by several other scholars who write about theories or philosophies of private international law.

The Abstract is below.

Feminist writers have long engaged in critiques of private law. Surrogacy contracts or the “reasonable man” standard in torts, for example, have long been the subjects of thorough feminist analysis and critique. When private law issues touch on more than one jurisdiction, Conflict of Laws is the doctrine that determines which jurisdiction can try the case and—as separate questions—which jurisdiction’s law should apply and under what conditions a foreign judgment can be recognized and enforced. Yet, there are virtually no feminist perspectives on Conflict of Laws (also known as Private International Law). This is still more surprising when one considers that feminist approaches to Public International Law have been developing for over a quarter century.

In this Article, I show that there is a fundamental need to rethink the image of the transnational individual in Conflict of Laws theory and methodology. It is here, I argue, that feminism—specifically relational, often known as cultural, feminism—has an important contribution to make to Conflict of Laws. I develop a relational feminist approach to Conflict of Laws and apply it to a pressing contemporary issue, namely transnational surrogacy arrangements.

Overall, this Article shows how relational feminism can illuminate the problems of adopting an atomistic image of the individual in a transnational context, as well as provide an outline for an alternative—a relational theory of the self that redefines autonomy and the law, creating an important shift in how Conflict of Laws perceives its regulatory dimensions. The Article connects three of relational feminism’s core insights—the notion of relational autonomy, the focus on relationships, and relational theories of judging—to Conflict of Laws theory and methodology.

I thought we were exclusive? Some issues with the Hague Convention on Choice of Court, Brussels Ia and Brexit

This blog post is by Dr Mukarrum Ahmed (Lancaster University) and Professor Paul Beaumont (University of Aberdeen). It presents a condensed version of their article in the August 2017 issue of the Journal of Private International Law. The blog post includes specific references to the actual journal article to enable the reader to branch off into the detailed discussion where relevant. It also takes account of recent developments in the Brexit negotiation that took place after the journal article was completed.    

On 1 October 2015, the Hague Convention on Choice of Court Agreements 2005 (‘Hague Convention’) entered into force in 28 Contracting States, including Mexico and all the Member States of the European Union, except Denmark. The Convention has applied between Singapore and the other Contracting States since 1 October 2016. China, Ukraine and the USA have signed the Convention indicating that they hope to ratify it in the future (see the official status table for the Convention on the Hague Conference on Private International Law’s website). The Brussels Ia Regulation, which is the European Union’s device for jurisdictional and enforcement matters, applies as of 10 January 2015 to legal proceedings instituted and to judgments rendered on or after that date. In addition to legal issues that may arise independently under the Hague Convention, some issues may manifest themselves at the interface between the Hague Convention and the Brussels Ia Regulation. Both sets of issues are likely to garner the attention of cross-border commercial litigators, transactional lawyers and private international law academics. The article examines anti-suit injunctions, concurrent proceedings and the implications of Brexit in the context of the Hague Convention and its relationship with the Brussels Ia Regulation. (See pages 387-389 of the article)

It is argued that the Hague Convention’s system of ‘qualified’ or ‘partial’ mutual trust may permit anti-suit injunctions, actions for damages for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such remedies further the objective of the Convention. (See pages 394-402 of the article) The text of the Hague Convention and the Explanatory Report by Professors Trevor Hartley and Masato Dogauchi are not explicit on this issue. However, the procès-verbal of the Diplomatic Session of the Hague Convention reveal widespread support for the proposition that the formal ‘process’ should be differentiated from the desired ‘outcome’ when considering whether anti-suit injunctions are permitted under the Convention. Where anti-suit injunctions uphold choice of court agreements and thus help achieve the intended ‘outcome’ of the Convention, there was a consensus among the official delegates at the Diplomatic Session that the Convention did not limit or constrain national courts of Contracting States from granting the remedy. (See Minutes No 9 of the Second Commission Meeting of Monday 20 June 2005 (morning) in Proceedings of the Twentieth Session of the Hague Conference on Private International Law (Permanent Bureau of the Conference, Intersentia 2010) 622, 623–24) Conversely, where the remedy impedes the sound operation of the Convention by effectively derailing proceedings in the chosen court, there was also a consensus of the official delegates at the meeting that the Convention will not permit national courts of the Contracting States to grant anti-suit injunctions.

However, intra-EU Hague Convention cases may arguably not permit remedies for breach of exclusive choice of court agreements as they may be deemed to be an infringement of the principle of mutual trust and the principle of effectiveness of EU law (effet utile) which animate the multilateral jurisdiction and judgments order of the Brussels Ia Regulation (see pages 403-405 of the article; C-159/02 Turner v Grovit [2004] ECR I-3565). If an aggrieved party does not commence proceedings in the chosen forum or commences such proceedings after the non-chosen court has rendered a decision on the validity of the choice of court agreement, the recognition and enforcement of that ruling highlights an interesting contrast between the Brussels Ia Regulation and the Hague Convention. It appears that the non-chosen court’s decision on the validity of the choice of court agreement is entitled to recognition and enforcement under the Brussels Ia Regulation. (See C-456/11 Gothaer Allgemeine Versicherung AG v Samskip GmbH EU:C:2012:719, [2013] QB 548) The Hague Convention does not similarly protect the ruling of a non-chosen court. In fact, only a judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognised and enforced in other Contracting States. (See Article 8(1) of the Hague Convention) Therefore, the ruling of a non-chosen court is not entitled to recognition and enforcement under the Hague Convention’s system of ‘qualified’ or ‘partial’ mutual trust. This provides a ready explanation for the compatibility of anti-suit injunctions with the Hague Convention but does not proceed any further to transpose the same conclusion into the very different context of the Brussels Ia Regulation which prioritizes the principle of mutual trust.

The dynamics of the relationship between Article 31(2) of the Brussels Ia Regulation and Articles 5 and 6 of the Hague Convention is mapped in the article (at pages 405-408). In a case where the Hague Convention should apply rather than the Brussels Ia Regulation because one of the parties is resident in a non-EU Contracting State to the Convention even though the chosen court is in a Member State of the EU (See Article 26(6)(a) of the Hague Convention) one would expect Article 6 of the Convention to be applied by any non-chosen court in the EU. However, the fundamental nature of the Article 31(2) lis pendens mechanism under the Brussels Ia Regulation may warrant the pursuance of a different line of analysis. (See Case C-452/12 Nipponkoa Insurance Co (Europe) Ltd v Interzuid Transport BV EU:C:2013:858, [2014] I.L.Pr. 10, [36]; See also to similar effect, Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG EU:C:2010:243, [2010] I.L.Pr. 35, [49]) It is argued that the Hartley–Dogauchi Report’s interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm. The exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with Article 31(2) of the Brussels Ia Regulation. This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. As a consequence, the incidence of parallel proceedings and irreconcilable judgments are curbed, which are significant objectives in their own right under the Brussels Ia Regulation. It is hoped that the yet to develop jurisprudence of the CJEU on the emergent Hague Convention and the Brussels Ia Regulation will offer definitive and authoritative answers to the issues discussed in the article.

The implications of Brexit on this topic are not yet fully clear. (See pages 409-410 of the article) The UK is a party to the Hague Choice of Court Agreements Convention as a Member State of the EU, the latter having approved the Convention for all its Member States apart from Denmark. The UK will do what is necessary to remain a party to the Convention after Brexit.  In its recently published negotiating paper – only available after the article in the Journal of Private International Law was completed – the UK Government has explicitly stated that:

“It is our intention to continue to be a leading member in the Hague Conference and to participate in those Hague Conventions to which we are already a party and those which we currently participate in by virtue of our membership of the EU.”  (see Providing a cross-border civil judicial cooperation framework (PDF) at para 22).

The UK will no doubt avoid any break in the Convention’s application. Brexit will almost certainly see the end of the application of the Brussels Ia Regulation in the UK. The reason being that its uniform interpretation is secured by the CJEU through the preliminary ruling system under the Treaty on the Functioning of the European Union (TFEU).  The UK is not willing to accept that jurisdiction post-Brexit (“Leaving the EU will therefore bring an end to the direct jurisdiction of the CJEU in the UK, because the CJEU derives its jurisdiction and authority from the EU Treaties.” see  Providing a cross-border civil judicial cooperation framework at para 20). So although the UK negotiators are asking for a bespoke deal with the EU to continue something like Brussels Ia (“The UK will therefore seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework” see  Providing a cross-border civil judicial cooperation framework at para 19) it seems improbable that the EU will agree to such a bespoke deal just with the UK when the UK does not accept the CJEU preliminary ruling system.  The EU may well say that the option for close partners of the EU in this field is the Lugano Convention. The UK Government has indicated that it would like to remain part of the Lugano Convention (see Providing a cross-border civil judicial cooperation framework at para 22). In doing so it would continue to mandate the UK courts to take account of the jurisprudence of the CJEU -when that court is interpreting Brussels Ia or the Lugano Convention – when UK courts are interpreting the Lugano Convention (see the opaque statement by the UK Government that “the UK and the EU will need to ensure future civil judicial cooperation takes into account regional legal arrangements, including the fact that the CJEU will remain the ultimate arbiter of EU law within the EU.” see  Providing a cross-border civil judicial cooperation framework at para 20). However, unless the Lugano Convention is renegotiated it does not contain a good solution in relation to conflicts of jurisdiction for exclusive choice of court agreements because it has not been amended to reflect Article 31(2) of Brussels Ia and therefore still gives priority to the non-chosen court when it is seised first and the exclusively chosen court is seised second in accordance with the Gasser decision of the CJEU (see Case C-116/02 [2003] ECR I-14693).  Renegotiation of the Lugano Convention is not even on the agenda at the moment although the Gasser problem may be discussed at the Experts’ Meeting pursuant to Article 5 Protocol 2 of the Lugano Convention on 16 and 17 October 2017 in Basel, Switzerland (Professor Beaumont is attending that meeting as an invited expert).  Revision of the Lugano Convention would be a good thing, as would Norway and Switzerland becoming parties to the Hague Convention.  It seems that at least until the Lugano Convention is revised and a means is found for the UK to be a party to it (difficult if the UK does not stay in EFTA), the likely outcome post-Brexit is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive choice of court agreements within the scope of the Hague Convention will be the Hague Convention. The UK will be able to grant anti-suit injunctions to uphold exclusive choice of court agreements in favour of the courts in the UK even when one of the parties has brought an action contrary to that agreement in an EU Member State. The EU Member States will apply Article 6 of the Hague Convention rather than Article 31(2) of the Brussels Ia Regulation when deciding whether to decline jurisdiction in favour of the chosen court(s) in the UK.

Whilst the Hague Convention only offers a comprehensive jurisdictional regime for cases involving exclusive choice of court agreements, it does give substantial protection to the jurisdiction of UK courts designated in such an agreement which will be respected in the rest of the EU regardless of the outcome of the Brexit negotiations. Post-Brexit the recognition and enforcement regime for judgments not falling within the scope of the Hague Choice of Court Agreements Convention could be the new Hague Judgments Convention currently being negotiated in The Hague (see Working Paper No. 2016/3- Respecting Reverse Subsidiarity as an excellent strategy for the European Union at The Hague Conference on Private International Law – reflections in the context of the Judgments Project? by Paul Beaumont). Professor Beaumont will continue to be a part of the EU Negotiating team for that Convention at the Special Commission in the Hague from 13-17 November 2017. It is greatly to be welcomed that the UK Government has affirmed its commitment to an internationalist and not just a regional approach to civil judicial co-operation:

“The UK is committed to increasing international civil judicial cooperation with third parties through our active participation in the Hague Conference on Private International Law and the United Nations Commission on International Trade Law… We will continue to be an active and supportive member of these bodies, as we are clear on the value of international and intergovernmental cooperation in this area.” See Providing a cross-border civil judicial cooperation framework at para 21.

One good thing that could come from Brexit is the powerful combination of the EU and the UK both adopting a truly internationalist perspective in the Hague Conference on Private International Law in order to genuinely enhance civil judicial co-operation throughout the world.  The UK can be one of the leaders of the common law world while using its decades of experience of European co-operation to help build bridges to the civil law countries in Europe, Africa, Asia and Latin America.

Worldwide Removal Order Upheld Against Google

The Supreme Court of Canada has upheld, by a 7-2 decision, an injunction issued by lower courts in British Columbia requiring Google, a non-party to the litigation, to globally remove or “de-index” the websites of the defendant so that they do not appear in any search results.  This is the first such decision by Canada’s highest court.

In Google Inc. v Equustek Solutions Inc., 2017 SCC 34 (available here) Equustek sued Datalink for various intellectual property violations relating to the manufacture and sale of a networking device.  Interlocutory orders were made against Datalink but it did not comply and it cut any connections it had to British Columbia (para 7).  It continued its conduct, operating from an unknown location and selling its device over the internet.  After some cooperative efforts with Google (de-indexing specific web pages but not Datalink’s entire websites) were unsuccessful to stop potential customers from finding Datalink’s device, Equustek sought an interlocutory injunction stopping Google from including any parts of Datalink websites in its search results worldwide.  Google acknowledged that it could do this relatively easily (paras 43 and 50) but it resisted the injunction.

The issue of the British Columbia court’s in personam or territorial jurisdiction over Google featured prominently in the lower court decisions, especially that of Justice Fenlon for the British Columbia Supreme Court (available here).  This is an interesting issue in its own right, considering the extent to which a corporation can be present or carry on business in a province in a solely virtual (through the internet) manner (rather than having any physical presence).  There is considerable American law on this issue, including the much-discussed decision in Zippo Manufacturing v Zippo Dot Com Inc., 952 F Supp 119 (WD Pa 1997).  In the Supreme Court of Canada, Google barely raised the question of jurisdiction, leading the court to state that it had not challenged the lower courts’ findings of in personam and territorial jurisdiction (para 37).  So more on that issue will have to wait for another case.

The majority decision (written by Abella J) applies the standard three-part test for an interlocutory injunction (para 25).  In doing so it confirms two important points.  First, it holds that a non-party can be made subject to an interlocutory injunction.  It relies on considerable jurisprudence about Norwich orders and Mareva injunctions, both of which frequently bind non-parties.  The common theme the court draws from these cases and applies to this case is the necessity of the non-party being bound for the order to be effective.  In the majority’s view, the injunction against Google is a necessity if the ongoing irreparable harm to Equustek is to be stopped (para 35).  Second, it holds that an interlocutory injunction can be made with extraterritorial effect in cases in which the court has in personam jurisdiction over the entity being enjoined (para 38).  Again, it made such an extraterritorial order in this case because that was, in its view, necessary for the injunction to be effective.  An order limited to searches or websites in Canada would not have addressed the harm.

The dissenting judges (Cote J and Rowe J) accept both of these important points of law.  They acknowledge that the court has the ability, in law, to issue such an injunction (para 55).  But on the facts of this case they determine that the injunction should not have been granted, for several reasons.  First, the injunction is not interlocutory but rather permanent, so that more restraint is warranted.  In their view, Equustek will not continue the action against Datalink, content to have obtained the order against Google (paras 62-63).  In response, the majority notes it is open to Google to apply in future to have the order varied or vacated if the proceedings have not progressed toward trial (para 51).  Because they consider the injunction to be permanent, the dissenting judges object that no violation of Equustek’s rights has as of yet been established on a balance of probabilities (para 66) such that there is no foundation for such a remedy.  Since the majority considers the injunction to be interlocutory this issue does not arise for it.

Second, the dissent rejects the reliance on Norwich orders and Mareva injunctions, noting that in those cases the order does not enforce a plaintiff’s substantive rights (para 72).  In essence, this order is a step farther than the courts have gone in previous cases and not one the dissent is willing to take.  The dissent also denies the injunction because (i) it is mandatory in nature rather than prohibitive, (ii) it is unconvinced that the order would be effective in reducing harm to Equustek and (iii) it thinks there is sufficient evidence that Datalink could be sued in France so that an alternative to enjoining Google is available.  Aspects of this supplementary reasoning are open to debate.  First, the distinction between mandatory and prohibitive orders is not overly rigid and in any event mandatory orders are possible, especially in cases in which the target of the order can easily comply.  Second, common sense suggests the injunction would have at least some impact on the ongoing alleged violations, even though of course there are other internet search engines.  Moreover, the majority points out that it is “common ground that Datalink was unable to carry on business in a commercially viable way unless its websites were in Google’s search results” (para 34).  On the issue of effectiveness, the dissenting judges do not seem to be on this common ground.  Third, proceedings against Datalink in France might or might not be viable.  Even if it could be found in France, it could subsequently leave the jurisdiction and continue its operations elsewhere.  So this seems a hard basis on which to deny Equustek the injunction.

It is fair for the dissent to point out that this injunction is not perfectly analogous to Norwich orders and Mareva injunctions.  It does move beyond those cases.  The debate is whether this is a reasonable incremental move in the jurisprudence relating to the internet or goes too far.  The majority’s overarching rationale for the move is the necessity of the injunction on these facts.  Coupled with the ease with which Google can comply, this is a sufficient basis to evolve the law in the way the court does.

Law on Jurisdiction Clauses Changes in Canada

In 2011 Facebook, Inc. used the name and picture of certain Facebook.com members as part of an advertising product.  In response, a class action was started in British Columbia on behalf of roughly 1.8 million British Columbia residents whose name and picture had been used.  The claim was based on section 3(2) of the province’s Privacy Act.  In response, Facebook, Inc. sought a stay of proceedings based on an exclusive jurisdiction clause in favour of California contained in the contracts of use for all Facebook.com members.

Canadian courts had repeatedly held that “strong cause” must be shown to displace an exclusive jurisdiction clause.  In addition, while there was some ambiguity, the leading view had become that the analysis about whether to stay proceedings due to such a clause is separate and distinct from the general forum non conveniens analysis (para 18).  The clause is not simply an important part of the forum non conveniens analysis – rather, it triggers a separate analysis.

In Douez v Facebook, Inc., 2017 SCC 33 (available here) the Supreme Court of Canada confirms the second of these points: the analysis is indeed separate.  However, by a slim majority of 4-3 the court holds that the “strong cause” test operates differently in a consumer context than in the commercial context in which it was originally formulated.  The court overturns the decision of the British Columbia Court of Appeal and rejects a stay of proceedings, paving the way for the class action to proceed in British Columbia.

The Separate Analysis

All of the judges support the separation from forum non conveniens (paras 17, 20 and 131).  I have found this approach troubling as it has developed and so, while not a surprise, I am disappointed to see it confirmed by the court.  As I understand it, the core reason for the separate analysis is to make sure that the clause is not overcome by a series of less important factors aggregated under the forum non conveniens analysis.  So the separate analysis requires that the “strong cause” to overcome the clause has to involve something closely related or intrinsic to the clause itself.  The best explanation of this view is in Expedition Helicopters Inc. v Honeywell Inc., 2010 ONCA 351 (available here; see in particular para 24).  The problem is that courts, in their search for strong cause, frequently go beyond this and refer to factors that are well established under the forum non conveniens approach.

In its analysis, the court puts almost no emphasis on (and does not really even explain, in the way Expedition Helicopters does) how the separate approach differs from forum non conveniens in terms of how the clause gets displaced.  In places, it appears to actually be discussing forum non conveniens (see paras 29-30 and 155), in part perhaps due to its quite direct reliance on The Eleftheria, an English decision I think is more consistent with a unitary framework rather than a separate approach (a point noted in Expedition Helicopters at para 11).  In Douez, the plurality finds strong cause for two reasons: public policy and secondary factors (para 64).  Leaving public policy aside for the moment, it is telling that the secondary factors are “the interests of justice” and “comparative convenience and expense”.  These are the most conventional of forum non conveniens factors.  If this analysis is followed by lower courts, rather than that as explained in Expedition Helicopters, the separate analysis might end up not being very separate.

The Consumer Context

The majority (which is comprised of two decisions: a plurality by three judges and a separate solo concurrence) considers the unequal bargaining power and potential for the relinquishing of rights in the consumer context to warrant a different approach to the “strong cause” test (para 33).  In part, public policy must be considered to determine whether the clause is to be given effect.  As a matter of law, this may well be acceptable.  But one of the key features of the plurality decision is the basis on which it concludes that strong cause has been shown on the facts.  It reaches this conclusion because the contract is one of adhesion with notable inequality of bargaining power and because the claim being brought relates to “quasi-constitutional rights” (para 58), namely privacy.  If these factors are sufficient, then a great many exclusive jurisdiction clauses in standard form contracts with consumers are subject to being defeated on a similar basis.  Lots of consumer contracts involve unequal bargaining strength and are in essence “take it or leave it” contracts.  And it may well not be that difficult for claims to be advanced, alongside other claims, that involve some form of quasi-constitutional rights (the breadth of this is untested).  This possibility that many other clauses do not provide the protection once thought is likely the most notable dimension of the decision.

The Dissent

The dissent would not modify the “strong cause” test (paras 125 and 171).  It stresses the need for certainty and predictability, which are furthered by exclusive jurisdiction clauses (paras 124 and 159).  The dissent concludes the clause became part of the contract, is clear and is not unconscionable.  It reviews possible factors which could amount to strong cause and finds none of them present.  It is critical of the majority for its use of public policy as a factor in the strong cause analysis.  If the clause is enforceable – and in its view it is, even with the inequality of bargaining power – then it is wrong to rely on the factors used by the plurality to find strong cause (para 173).  In the immediate aftermath of the decision I think the dissent has the better of the argument on whether strong cause has been shown in this particular case.

Territorial versus Subject Matter Jurisdiction

The proposed class action relies on a statutory provision.  That statute contains a provision (section 4) that provides that the British Columbia Supreme Court must hear and determine claims under the statute.  The British Columbia Court of Appeal concluded that this provision addresses subject matter jurisdiction and not territorial jurisdiction (para 14).  The dissent agrees with that view (para 142).  In contrast, the plurality conflates the two types of jurisdiction.  While it accepts that the provision is not one which overrides jurisdiction clauses (para 41), in the public policy analysis it is concerned that in litigation in California the plaintiff class would have no claim (para 59).  But as the dissent points out, it is open to the California courts to apply the statute under its choice of law analysis (paras 165-66).  No evidence was adduced to the contrary.  Section 4, properly interpreted, does not prevent that.  Even more worrying is the analysis of Justice Abella in her solo concurring decision.  She concludes that section 4 deals with territorial jurisdiction and so overrides any jurisdiction clause to the contrary (paras 107-08).  This is a remarkable interpretation of section 4, one which would see many other provisions about subject matter jurisdiction instead read as though they addressed territorial jurisdiction (which she does in footnote 1 in para 109).

Conclusion

The split between the judges as to what amounts to strong cause sufficient to set aside an exclusive jurisdiction clause is the most dramatic aspect of the decision.  They see what is at stake very differently.  On one view, this is a case in which consumers should not be deprived of important statutory rights by a clause to which they did not truly agree.  On another view, this is a case in which contracting parties should be held to their agreement as to the forum in which any disputes which arise should be resolved because, even though the contract involves consumers, the agreement is not unfair and has not been shown to deprive them of any substantive rights.  This debate will now play out across a wide range of consumer contracts.