Posts Tagged comparative

Turkish Supreme Court rejects choice of court agreement on basis of ‘good faith’. Accepts asymmetric clauses.

Koray Söğüt and Suha Yılmaz reported recently on Turkish Supreme Court case-law in the area of choice of court. The report is very much worth a read. On choice of court agreements, what the Supreme Court seems to say is that when choice of court is made away from Turkey,  Turkish law will make that choice subject to a de facto forum conveniens assessment: if Turkey is a suitable forum especially when the eventual judgment will be easily enforced against Turkish assets, a defendant’s insistence on exercising the clause must be seen as violating Turkey’s general provision on bad faith (a form of fraus omnia corrumpit).

It is also reported that the Supreme Court accepted a unilateral /asymmetric jurisdiction clause – the issues surrounding these clauses are a regular feature on this blog.

More cases for the comparative law class! (At least if and when I get hold of an English translation).

Geert.

 

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Rincon. Overriding mandatory law or ‘lois de police’ in California.

Rincon ((2017) 8 Cal. App 5th 1) is another case suited to comparative conflicts classes. It applies California’s restrictive regime on waiver of jury trial to a contract governed by New York law and with choice of court for New York.

‘Lois de police‘, also known as lois d’application immédiate or lois d’application nécessaire,  are included in the EU’s Rome I Regulation (on applicable law for contracts) in Article 9. (I reported earlier on their application in Unamar).

Jason Grinell has background to the case. Parties had made choice of law and choice of court in favour of New York. The link with New York was real (in EU terms: this was not a ‘purely domestic’ situation), inter alia because of the involvement of New York-based banks, parties being sophisticated commercial undertakings, and the contract having been negotiated in NY. However the real estate development is located at San Francisco, giving CAL a strong link to the case. Under CAL law,  parties generally cannot waive a jury trial before the commencement of a lawsuit unless they use one of two methods approved by the legislature. New York law does not have the same provision and choice of court clauses in favour of New York do not include reference to the only options available under CAL law.

In the case at issue, the boilerplate choice of court clause was set aside by the Court of Appeal. The lower court had denied a substantial enough Californian interest in the case – the CA disagreed. The relevant part of the judgment runs until p.22.

That comparative conflicts binder is filling out nicely.

Geert.

 

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Help, I am going bananas. US courts and Chiquita.

The title of this post is a result of my confusion on the state of various suits against Chiquita, on alleged collusion in or perpetration of human rights abuses in Columbia. I had reported earlier (scroll down to ‘update on linked development’; this hyperlinks to all relevant links) that the US Supreme Court had denied certiorari in a ruling of the 11th U.S. Circuit Court of Appeals in Miami. This left that ruling standing (a strict application of SCOTUS’ view in Kiobel).

End November (I had tweeted it at the time; my ledger has not left me an opportunity to post on it since) the Southern District court of Florida dismissed an application on forum non conveniens grounds in what must be related litigation. Except my limited knowledge of jurisdictional levels in the US leaves me in doubt where the link is between these two developments (US readers please assist if you can).

At any rate, the ruling reviewed here is a textbook example of forum non conveniens (motion dismissed, nota bene) and a great source for a comparative conflicts class. Such as I teach at Monash :-).

Geert.

(Handbook of) European Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.5.

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Sinocore International Co Ltd v RBRG Trading: The commercial court on fraus, ordre public and arbitration.

Fraus omnia corrumpit (fraud corrupts all; alternatively formulated as ex turpi causa non oritur actio) is not easily applied in conflict of laws. See an earlier post here.  In Sinocore International Co Ltd v RBRG Trading , the Commercial Court granted permission for the enforcement of a foreign arbitral award despite allegations that the transaction in question had been “tainted” by fraud: this is how the case is summarised by Mayer Brown and I am happy broadly to refer to their overview and analysis.

The Commercial Court’s relaxed attitude is another sign of strong support of the English courts for the New York Convention and its narrow application of ordre public.

An interesting case for comparative conflicts /arbitration classes.

Geert.

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Jurisdiction for libel over the internet. Ontario’s view in Goldhar v Haaretz.

The exam season is over, otherwise Goldhar v Haaretz would have made a great case for comparative analysis. Instead this can now feed into class materials. This is an interlocutory judgment on the basis of lack of jurisdiction and /or abuse of process. Plaintiff lives in Toronto.  He is a billionaire who owns i.a. Maccabi Tel Aviv. (Chelsea’s first opponent in the Champions League. But that’s obviously an aside). Mr Goldhar visits Israel about five or six times per year. Defendant is Haaretz Daily Newspaper Ltd. which publishes Haaretz, Israel’s oldest daily newspaper (market share about 7%).   It also publishes an English language print edition.  Haaretz is published online in both English and Hebrew.

Haaretz published a very critical article on Mr Goldhar in November 2011. The print version was not published in Canada, in either English or Hebrew. However, Haaretz was made available internationally on its website in Israel in both Hebrew and English – the judgment does not say so specifically however I assume this was both on the .co.il site – even if currently Haaretz’ EN site is available via a .com site.

Information provided by the defendants reveals that there were 216 unique visits to the Article in its online form in Canada. Testimony further showed that indeed a number of people in Canada read the article – this was sufficient for Faieta J to hold that a tort was committed in Ontario and thus a presumptive connecting factor exists. Presumably this means that the court (and /or Canadian /Ontario law with which I am not au fait) view the locus delicti commissi (‘a tort was committed’) as Canada – a conclusion not all that obvious to me (I would have assumed Canada is locus damni only). Per precedent, the absence of a substantial publication of the defamatory material in Canada was not found to be enough to rebut the finding of jurisdiction.

Forum non conveniens was dismissed on a variety of grounds, including applicable law being the law of Ontario (again Ontario is identified as the locus delicti commissi: at 48). Plaintiff will have to cover costs for the appearance, in Canada, of defendants’ witnesses. Importantly, plaintiff will also only be able to seek damages for reputational harm suffered within Canada.

I can see this case (and the follow-up in substance) doing the rounds of conflicts classes.

Geert.

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Fraus omnia corrumpit or accidental oversight? New South Wales Supreme Court goes full throttle in Proactive Building Solutions

Fraus omnia corrumpit (fraud corrupts all) is not easily applied in conflict of laws.  Both forum shopping and choice of law ought not prima facie to be regarded with much suspicion, especially in a B2B context. States typically employ mandatory law provisions, sometimes restricted to ‘overriding mandatory law’ (such as in the EU’s Rome I Regulation for choice of law in contracts) to ring-fence parts of national law not capable of being avoided by choice of law in purely domestic situations, and ‘public order’ provisions to trump choice for foreign law even in not purely domestic contexts, but then only for the most essential parts of a State’s legal fabric.

In Proactive Building Solutions, McDougall J held ex tempore that a choice of court and choice of law clause in favour of the English courts cq English law, was void in its entirety for it negated the working of a provision of the New South Wales Building and Construction Industry (Security of Payment) Act 1999 (NSW) (SOP Act). The object of this Act is to ensure that any person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services.

Section 34 of that Act reads

34 No contracting out

(1) The provisions of this Act have effect despite any provision to the contrary in any contract.

(2) A provision of any agreement (whether in writing or not):

(a) under which the operation of this Act is, or is purported to be, excluded, modified or restricted (or that has the effect of excluding, modifying or restricting the operation of this Act), or

(b) that may reasonably be construed as an attempt to deter a person from taking action under this Act, is void.

Section 7(1) of the Act, not referred to in judgment, reads

Subject to this section, this Act applies to any construction contract, whether written or oral, or partly written and partly oral, and so applies even if the contract is expressed to be governed by the law of a jurisdiction other than New South Wales.

As pointed out by Leigh Duthie and his colleagues,  while Section 7(1) may have normally allowed the Court to void only the SOP relevant aspects of choice of law, the trouble in the current case was that the contract had thrown choice of court and choice of law into one clause (a very common contractual occurrence), with a foreign court adjudicating.  McDougall J found it highly unlikely that the English courts would uphold the provisions of the SOP Act, hence giving the NSWSC no choice but making the clause void in its entirety. Consequently the whole contractual arrangement became subject to choice of court and choice of law as if no express clause had been inserted, even if the workings of the SOP Act would have had only a minor impact on parties’ contractual relations.

An obvious remedy is to lift SOP relevant parts of the contract out of the choice of court clause, however even in such case some uncertainty persists: for the recalcitrant party, suing in NSW in spite of a choice of court elsewhere, could attempt to raise the SOP flag if only to delay proceedings.

An interesting case for comparative conflicts classes.

Geert.

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