Copyright (c) 2010 All rights reserved. http://works.bepress.com/antonin_pribetic Recent documents in Antonin I. Pribetic en-us Wed, 06 Oct 2010 07:18:32 PDT 3600 http://works.bepress.com/antonin_pribetic/17 http://works.bepress.com/antonin_pribetic/17 Fri, 13 Feb 2009 06:44:33 PST A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd's Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta's Limitations Act, governs when a party seeks the recognition and enforcement in Alberta of a foreign arbitral award). The Teck Cominco v. Lloyd's Underwriters decision - released by the Supreme Court of Canada on February 20, 2009 - provides clarity on the statutory codification of the forum non conveniens doctrine vis-a-vis parallel proceedings. However, it does so without reference to the alternative remedy of an anti-suit injunction, which the author considers by providing a comparative analysis of the differing jurisprudential approaches to jurisdiction and forum non conveniens following Morguard in Canada and Sinochem in the United States. Although declining to hear the Drabinsky v. King appeal, the granting of leave in Yugraneft v. Rexx Management Corporation on February 26, 2009 offers cautious optimism for a definitive ruling by Canada's highest court on the issue of the applicability of provincial limitation periods to the recognition and enforcement of foreign arbitral awards. Hopefully, the Supreme Court of Canada will address the vexing problem of the lack of harmonization or unification between federal and/or inter-provincial statutory regimes under the law of limitations respecting foreign judgments and foreign arbitral awards. Until then, a party seeking recognition and enforcement of a foreign arbitral award is cautioned to commence an application to enforce the final arbitral award within the applicable provincial limitation period. Antonin I. Pribetic Commercial Law Practice and Procedure Conflict of Laws International Law Comparative Law Jurisdiction Arbitration International Commercial Law International Commercial Arbitration http://works.bepress.com/antonin_pribetic/16 http://works.bepress.com/antonin_pribetic/16 Thu, 27 Nov 2008 15:04:56 PST This article discusses the applicability of the CISG from a Canadian conflict of laws perspective - both in terms of jurisdiction and choice of law. The analysis is framed by providing an outline of the key jurisdictional and choice of law principles developed within Canadian jurisprudence. Following a brief contextual overview of the CISG, Articles 1(1) (a) and 1(1) (b) and Article 6 of the CISG are highlighted, with specific reference to recent Canadian and foreign judicial decisions and foreign arbitral awards involving Canadian parties. The article concludes with a clarion call to justice stakeholders, particularly, Canadian commercial lawyers and judges, to better understand and apply the CISG in the future. Antonin I. Pribetic Commercial Law Comparative Law Conflict of Laws Contracts International Law International Trade Jurisdiction Practice and Procedure http://works.bepress.com/antonin_pribetic/14 http://works.bepress.com/antonin_pribetic/14 Tue, 11 Nov 2008 06:54:29 PST This article addresses some potential problems which may arise in the recognition and enforcement of foreign arbitral awards under the UNCITRAL Model Law on International Commercial Arbitration, including the application of the Ontario Limitations Act, 2002 which has changed the conflict of laws rules relating to the law of limitations from a procedural to a substantive issue. Antonin I. Pribetic International Law Comparative Law International Commercial Law International Commercial Arbitration http://works.bepress.com/antonin_pribetic/13 http://works.bepress.com/antonin_pribetic/13 Fri, 05 Sep 2008 15:39:52 PDT Canadian courts have struggled in distinguishing between in personam jurisdiction and subject-matter jurisdiction (and specifically the Mocambique rule). In particular, they appear to overlook the two-fold jurisdictional requirement that in order to proceed in a given case they must have both types of jurisdiction - in personam and subject-matter - and that when jurisdictional challenges arise due to the fact that the dispute deals with foreign immovables Canadian courts, influenced by the post-Morguard focus on in personam jurisdiction, are dealing with the foreign land question under the rubric of in personam jurisdiction, not under the traditional heading of subject-matter jurisdiction. Part of the problem stems from a judicial preference to apply the Mocambique rule as exclusively a legal rule, while allowing for the in personam exception as a corollary to the "real and substantial connection" test and the Muscutt factors. Professor McLeod's four pre-requisites for the in personam exception from his seminal text "The Conflict of Laws" remain a relevant doctrinal basis for establishing jurisdiction simpliciter over foreign defendants in claims involving foreign immovables. While Professor McLeod was writing about the four pre-requisites for the in personam exception in 1983, his doctrinal approach remains relevant for determining subject-matter jurisdiction over claims involving foreign immovables.However, since Professor McLeod's first pre-requisite only addresses presence-based and consent-based jurisdiction, the court's have sometimes resorted to the Muscutt factors to assume jurisdiction over property-based claims, which offend the Mocambique rule. The Muscutt factors for assuming jurisdiction should be limited to traditional non-property claims in lieu of service-based or consent-based jurisdiction. The process of characterization is ultimately discretionary. However, the determination of jurisdiction simpliciter is not.Part I introduces the key components of judicial jurisdiction in the context of Canadian private international law. Part II provides an overview of the nature and scope of the in personam exception. Part III considers the utility of the real and substantial connection test by analyzing the in personam exception through the prism of recent Canadian case law where jurisdictional challenges raised relating to claims involving foreign real property led to divergent results. In Part IV, I conclude by proposing a three-factored test for jurisdiction simpliciter, which integrates the in personam exception in respect of foreign immovables. Antonin I. Pribetic Comparative Law Conflict of Laws International Law Jurisdiction Practice and Procedure http://works.bepress.com/antonin_pribetic/11 http://works.bepress.com/antonin_pribetic/11 Sun, 29 Jul 2007 18:00:16 PDT Mediation in the international context is a relatively recent phenomenon. As an Alternative Dispute Resolution (ADR) mechanism, third-party neutral mediation is firmly entrenched in the legal ethos and procedural rules of most common law jurisdictions; such as the United Kingdom, the United States and Canada. However, in the rest of the world, including many European, Latin American and Asian nations with civil law traditions, mediation remains an elusive concept. Some commentators suggest this may be due in part to differences in systemic (i.e. adversarial vs. inquisitorial) and cultural (i.e. mediation vs. conciliation) orientations. This paper considers whether International Mediation is a viable Dispute Resolution Mechanism ('DRM') alternative to litigation or arbitration based upon a new theory of 'strategic functionalism' defined as follows:The Form is a function of the Content and Process where:1) The Form = the advocacy/negotiation tactics;2) The Content = the advocacy/negotiation strategy; and3) The Process = the dispute resolution system.In particular, the advocacy/negotiation tactics (based upon rules of engagement, including mediator orientations, procedural and evidentiary rules) to be employed will be determined not only by the overall mediation strategy (informed by substantive legal principles, domestic, international and/or transnational public policy and client-focused interests) but also the applicable process (litigation, arbitration or mediation systems) to achieve objective resolution of the dispute. The effect of decision-making and behavioral biases, including System Justification Theory, will also be considered. Antonin I. Pribetic Commercial Law International Trade Contracts Conflict of Laws International Law Comparative Law Arbitration International Commercial Law http://works.bepress.com/antonin_pribetic/10 http://works.bepress.com/antonin_pribetic/10 Sun, 22 Apr 2007 11:47:49 PDT This paper takes an interdisciplinary approach to an analysis of the Western (common law) adversarial system based upon the following theory of strategic functionalism: the form (tactics based upon procedural and evidentiary rules) is a function of the content (strategy based upon legal principles and policies and client-based remedies).Applying Jungian analysis, the following three (3) conceptual models and corresponding lawyer archetypes emerge: 1.the client-centric model (e.g. the “the “Warrior” / the “zealous advocate”); 2.the justice-centric model (e.g. the “Lover/Medial”/ the “ethical professional”); and 3.the science-centric model (e.g. the “Sovereign” or the “Magician/Trickster”/ the “knowledge technocrat”). The paper then considers whether strategic functionalism can integrate the client-centric, justice-centric and science-centric conceptual models into a coherent, unified Trial Advocacy paradigm. The thesis is that Sun Tzu's The Art of War serves this purpose well. The key element is that one can easily transpose the Taoist philosophy and military strategy and tactics in Sun Tzu's The Art of War to Trial Advocacy, irrespective of which conceptual model and corresponding lawyer archetype one identifies with. Most trial lawyers will likely identify themselves as a combination of two or all three conceptual models offered; however, the term “Trial Warrior” has a degree of verisimilitude: for the “zealous advocate”, The Art of War provides a blueprint for developing and executing a comprehensive client-focused litigation strategy; for the “ethical professional”, the Taoist philosophy permeates the text, raising awareness of the need to avoid conflict, yet illuminating the balance of achieving victory without destroying the enemy; and for the “knowledge technocrat”, the rationalist minimalist approach places greater emphasis on organizational strength over individual talents and skills, particularly useful in the context of complex litigation management. Antonin I. Pribetic Practice and Procedure Law and Society Trial Advocacy http://works.bepress.com/antonin_pribetic/9 http://works.bepress.com/antonin_pribetic/9 Tue, 10 Apr 2007 15:28:26 PDT This is a summary from a presentation made at the Ontario Bar Association Annual Institute held on February 5th, 2007 entitled "Cross-border High Anxiety? Offensive and Defensive Strategies in Transnational Litigation". It provides an overview of offensive cross-border litigation strategies from a Canadian perspective, summarized by the "Five C's": Coordination, Connection, Contradiction, Confirmation and Collection. Jurisdiction, choice of forum and law, and the potential for fast-moving assets, are threshold issues. Maintaining strong lines of communication with instructing foreign counsel; establishing a sound transnational litigation strategy; and anticipating potential substantive defences and defensive strategies (including parallel proceedings, anti-suit injunctions) will pay significant dividends to litigants seeking recognition and enforcement of foreign judgments in Canada. Antonin I. Pribetic Practice and Procedure Conflict of Laws International Law Comparative Law Jurisdiction http://works.bepress.com/antonin_pribetic/8 http://works.bepress.com/antonin_pribetic/8 Wed, 07 Mar 2007 17:32:43 PST The Hague Choice of Court Convention, concluded on June 30th, 2005, represents a significant step forward towards improved harmonization of international trade law by providing greater certainty and predictability for parties involved in business-to-business (B2B) agreements and transnational litigation. The Hague Choice of Court Convention offers a viable alternative to arbitration as a method of transnational dispute resolution. At a minimum, functional reciprocity between Contracting States is more likely to be achieved through this multilateral treaty, which codifies the private international law principles of comity, good faith and order and fairness, espoused by most common law courts, including the Supreme Court of Canada. Antonin I. Pribetic International Law Comparative Law Jurisdiction http://works.bepress.com/antonin_pribetic/7 http://works.bepress.com/antonin_pribetic/7 Wed, 07 Mar 2007 17:26:53 PST The article discusses choice-of-law theories for both contractual and tort/product liability claims governed by the CISG. The underlying theme is that concurrent claims are not necessarily equivalent claims. While concurrent liability in contract and tort (namely, product liability) may be applicable or alternative remedies available, the focus of the CISG is the harmonization of rules governing international sale contracts. The article argues that factors such as the place of injury or where the damages are sustained are less relevant than the situs of the contract, based upon the view that, without privity of contract, the concurrent tort would not arise. Where the damages were sustained, in the absence of injustice, should not be determinative by resort to parochial, territorial or domestic policy-driven application of procedural rules affording jurisdiction. This paper coins a new conflict of laws phrase: the lex foci conventionis, or simply the lex foci, defined as the law of the place where CISG claims in contract and tort converge. Applying this new paradigm, a choice of law methodology is proposed for concurrent contract and product liability claims. Where gaps, exclusions or conflicts arise, dispositive factors are offered to delimit the core of the action. Antonin I. Pribetic Commercial Law International Trade Practice and Procedure Contracts Conflict of Laws Courts International Law Comparative Law Jurisdiction International Commercial Law http://works.bepress.com/antonin_pribetic/6 http://works.bepress.com/antonin_pribetic/6 Wed, 07 Mar 2007 17:00:04 PST Many will be familiar with the legal axiom: Great cases, like hard cases, make bad law. This comment addresses the obverse: Bad cases, like ordinary cases, make hard law. Put another way, to what extent should a judge or appellate court be bound by the doctrine of stare decisis when confronted with a legal precedent which is incorrect? Antonin I. Pribetic Practice and Procedure Courts http://works.bepress.com/antonin_pribetic/5 http://works.bepress.com/antonin_pribetic/5 Wed, 07 Mar 2007 16:56:02 PST While the topic of international arbitration has failed to capture the interest of Hollywood producers or television audiences, the science fiction genre yields a serendipitous result. Using an excerpt from a Star Trek: The Next Generation episode, this brief comment analyzes the impact of law and popular culture on the issues of the rule of law, jurisdiction and international (more accurately, "intergalactic") comity within the context of bilateral and multilateral treaty obligations. Antonin I. Pribetic Courts International Law Arbitration http://works.bepress.com/antonin_pribetic/4 http://works.bepress.com/antonin_pribetic/4 Tue, 06 Mar 2007 16:26:05 PST Well into the new millennium, the landscape of international business commerce continues to change dramatically. As many companies expand into global markets, the extant business reality of prosecuting or defending lawsuits arises from companies relying upon standard or boiler plate contracts or invoices when selling goods and services to customers or buying products from suppliers or third parties. This article discusses transnational contractual and litigation issues in Canada, with specific application to the province of Ontario. This article first addresses, from an Ontario company perspective, the importance of incorporating choice of forum, choice of law, and time of the essence clauses in standard international contracts, with particular reference to the United Nations Convention on Contracts for the International Sale of Goods. The second part draws upon the jurisdictional issues prevailing when foreign defendants are sued in Ontario, including procedural and substantive law considerations. Finally, a discussion of the principles for recognition and enforcement of foreign judgments in Ontario necessarily involves a review of the Supreme Court of Canada's landmark decision in Morguard Investments Ltd. v. de Savoye, and the recently released decision in Beals v. Saldanha. An appreciation of the complexities and subtleties within developing Canadian jurisprudence in the transnational litigation context offers foreign and domestic litigants an opportunity to consider the benefits and drawbacks of litigating in Ontario. Antonin I. Pribetic Conflict of Laws Courts International Law Comparative Law Jurisdiction http://works.bepress.com/antonin_pribetic/1 http://works.bepress.com/antonin_pribetic/1 Tue, 06 Mar 2007 15:58:17 PST Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where jurisdiction simpliciter is otherwise established (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that "form follow function". Procedural rules (the "form") must be predicated on the intended purpose ("order and fairness"). Although USA v. Shield is also informative in respect of the public policy defence, the Ontario court's analysis of the defence of natural justice begs scrutiny for three reasons. First, the defence of natural justice is the fulcrum between the principles of order and fairness that forms the basis for foreign judgment enforcement. Second, the factual and evidentiary record and procedural history in USA v. Shield both demonstrate that the standards of American due process and Canadian procedural fairness differ in material respects vis-à-vis default and/or summary judgments. Finally, and perhaps most importantly, the rights of unrepresented (pro se) corporate defendants to notice and right of appearance in U.S. federal and state courts are markedly different from those in Canada generally, and in Ontario, specifically. The case comment includes a comparative analysis of the U.S. Federal Rules of Civil Procedure, local Utah State Rules and the Ontario Rules of Civil Procedure. It concludes that the defence of natural justice requires further refinement and proposes six additional factors for Canadian courts to apply when considering the defence of natural justice in the context of foreign default judgment enforcement. Antonin I. Pribetic Commercial Law Practice and Procedure Conflict of Laws Courts International Law Comparative Law Jurisdiction Corporations Environmental Law http://works.bepress.com/antonin_pribetic/3 http://works.bepress.com/antonin_pribetic/3 Tue, 06 Mar 2007 15:58:17 PST The continuing evolution of the “real and substantial connection” test for the recognition and enforcement of foreign judgments remains a topic of immediate interest. Since the landmark decision in Morguard Investments Ltd. v. De Savoye, and more recently in Beals v. Saldanha, Canadian jurisprudence for the recognition and enforcement of foreign judgments has been dominated by judicial and legislative unilateralism: the establishment of a domestically imposed standard (the lex fori) striving towards national uniformity informed by private international law (or conflict of laws) principles. While the “real and substantial connection” test for jurisdiction simpliciter provides a flexible analytical framework for a Canadian domestic court in assuming or declining jurisdiction over a foreign defendant, it does not completely restrict jurisdictional challenges by a non-resident (foreign) defendant. The residual discretion afforded by the forum non conveniens doctrine, coupled with other forms of jurisdictional challenges, remains a robust procedural tool in a litigator's arsenal, while the boundaries of the recognized defences of fraud, natural justice and public policy continue to be tested. Part One reviews the Canadian unilateral approach to recognition and enforcement of foreign judgments, canvassing the application of “real and substantial connection” test through a review of recent court decisions, including the Supreme Court of Canada decision in Pro Swing Inc. v. Elta Golf Inc. on the recognition and enforceability of a non-monetary judgment. Part Two discusses bilateralism highlighted by a recent Ontario decision applying the Reciprocal Enforcement of Judgments (UK) Act. It will also identify current provincial reciprocal enforcement of judgments legislation involving reciprocating U.S. states and foreign nations. The Uniform Law Commission of Canada's uniform legislation recently implemented by the Saskatchewan Enforcement of Foreign Judgments Act will be highlighted. In Part Three, multilateralism through an overview of the Hague Choice of Court Convention will conclude with a recommendation for ratification and implementation by Canada. Antonin I. Pribetic Conflict of Laws International Law Jurisdiction http://works.bepress.com/antonin_pribetic/2 http://works.bepress.com/antonin_pribetic/2 Tue, 06 Mar 2007 15:58:17 PST This case comment discusses two recently released Canadian decisions on the enforceability of arbitration clauses from the perspective of the United Nations Convention on Contracts for the International Sale of Goods 1980 CISG). At first glance, the Supreme Court of Canada's decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the CISG to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, Incorporated. In either of the Canadian and American GreCon decisions, the parties' (and their respective counsel's) characterization of the legal issues, including jurisdictional arguments, ultimately guided the domestic forum court's jurisprudential analysis. Unlike GreCon v. Horner, choice of forum remained a live issue when it reached the Supreme Court of Canada in GreCon v. Normand. In both cases, the parties' choice of law remained an important, but not exclusive, factor in the domestic court's overall determination of proper forum. In Sonox Sia v. Albury Grain Sales Inc., the Quebec Superior Court also considered the validity of an arbitration clause specifying that all contractual disputes be arbitrated by the ICC in London, UK, with the CISG stipulated as the governing law. Although the reasoning in both Canadian court decisions failed to consider the CISG's provisions, international case law or academic commentaries, perhaps another opportunity awaits for Canada to contribute to the CISG's global jurisconsultorium. Antonin I. Pribetic Commercial Law International Trade Contracts Conflict of Laws International Law Comparative Law Jurisdiction