1
Leora Aster ()
Fall term, 1999
Professor P. Glenn
Private International Law,
or,
The Resolution of Multi-Jurisdictional, Private Law Disputes
PART I. INTRO & PRELIMINARIES
1. Intro & NAFTA………………………………………………………………………………………………5
2. Legal Professions [I] ……………………………………………………………………………………….6
3. Costs & Fees [II] …………………………………………………………………………………………11
3.1. Scheme of costs & fees
3.2. Types of fees: Contingent fees & Class actions……………………………………………………14
PART II. CHOOSING AN APPROPRIATE FORUM: FIRST ISSUE
4. Choosing an appropriate forum: Intro…………………………………………………………………16
4.1. Subject matter jurisdiction: Court Structures [III]
Erie
Klaxton
Ampero
4.2. Territorial (Can) /Personal (US) Jdctn [IV] ……………………………………………………………22
4.2.1. Domestic Jdctn
4.2.1.1. Grounds of Jdctn
Tag jdctn [Ont]
Real and substantial connection = Morguard [Canada]
Due process [US]
Minimum contact = Int'l Shoe [US]
4.2.1.2. Territorial jdctn & Transborder Collective Claims [ie. Class action, bankruptcy]…………………26
General jdctn + Special jdctn…….………………………………………………………………………..…27
4.2.1.3. Def's challenges to jdctn……………………………………………………………………………….28
Special appearance/ Motion to dismiss
Interlocutory appeal
Anti-suit injunction
Submit and defend/ Default
Declaratory judgement = pre-emptive suit……………………………………………………………………30
Forum non conveniens
4.2.2. Foreign Jmnts…………………………………………………………………………………………..31
4.2.2.1. Standards for recognizing foreign jmnts, in general
Real and substantial connection = Morguard [Canada]
Blocking statutes and Hunt
Full faith blocking clause
4.2.2.2. Standards for recognizing Foreign Jmnts: Class Actions………………………………………….36
4.2.2.2. Standards for recognizing Foreign Jmnts: Bankruptcy……………………………………………37
PART III. THE SUIT
5. Provisional (Pre-Jmnt) Remedies [V]
5.1. Local seizure
5.2. ( World-Wide) Mireva injunctions…………………………………………………………………...…38
6. Pleading & Discovery: How a suit proceeds [VI]…………………………………………………...39
PART IV. CHOICE OF LAW: SECOND ISSUE
7. The Role of Foreign Law = What triggers the choice of law process [VII] .……………………45
7.1. Attitude of dif jdctns to wh the choice of law rule has to be applied……………………………46
Attitude of dif jdctns to choice of law, and judicial notice of foreign law……………………………………………47
7.2. Choice of law: process…………………………………………………………………………………..48
8. Choice of Law: Methodology [VIII]……………………………………………………………………..49
8.1. Definition of choice of law rules……………………………………………………………………….50
Legal relations
Connecting factors
Governing laws
Control
8.2. Definition of choice of law methods [Consider the intent = Interest Analysis]...……………..51
8.3. Example of choice of law rules
The proximaty principle [Que, a.3082]
PART V. DIRECT REGULATION OF FOREIGN ACTIVITY
9. Direct Regulation of Foreign Activity [IX] ……………………………………………………………53
Limitations + Control
PART VI. EXAMPLES OF CHOICE OF LAW PROCESS
10. Tort & Delict [X] …………………………………………...…………………………………………...…55
LLD
Lex fori rule = your choice of forum law applies to the merits of the case.
10.1. Tort: No rules approach = Interest Analysis (Choice of law methods)……………………..56
3 sits: Injury in your own jdctn, Common domicile, Product liability
Second restatement test: Most sig rel = Another way of reformulating interest analysis……………………………..59
10.2. Interplay btw PIL, tort cases, and constitutional law
10.3. How to know what is a prob of tortious / delictual liability
11. Contract [XI] ……………………………………………………………………………………………….61
11.1. General Principles: Subjective + Objctive views of party autonomy
Depecage………………………………………………………………………………………………….62
Proximaty principle
11.2. Limitations on subjective and objective views…………………………………………………….64
11.3. What are the constititutional limits of states on party aut?………………………………………66
11.4. Knowing what is a K prob/ Determining the domain of the law governing K………………….67
12. Security on Movable Property [XII] ……………………………………………………………………68
**************************************
EXAM:
- 3 Qs. 2 problems, and 1 essay. Can do 2 of the 3 qs.
- Essay is very open ended - relates to NAFTA objectives.
- 2 probs are very general, large - large litigation phenom. Must canvas the areas of law we've looked at from the perspective of a N Am law firm.
- 3 hours; open bk.
- Each prov is treated as foreign in Canada. In Can, provs ARE foreign.
In the US, foreign means outside US. In US, states are NOT foreign.
1. Jurisdiction:
1.1. Subject matter jdctn - Solve this by looking at the rules of the crt.
Is the subject constitutional/ maritime [Can]/ diversity [US] - > Fed ct
General jdctn or special jdctn?
1.2. Territorial/ personal jdctn - Solve this by looking at the rules of the crt.
a) Domestic jdctn: How courts assume jdctn over a case - what standards they must apply to determine if they're allowed to take jdctn.
b) Foreign jmnts: Can another court accept the jmnt of the first court? What are the standards for recognizing foreign jmnts?
2. Choice of law rules (Can) OR methods (US) - Solve this by looking at the rules/ methods.
Class Actions / Forum non conveniens / Tag jdctnie. Serving on a def who's temp in the jdctn. / Anti-suit injunctn ie. def asks for inj to prevent pltf from suing him in jdctn x. Must prove abuse of def's right. / Full faith and credit [and thus, transformative jmnts.] / Blocking statutes ie. to block discovery in another jdctn[ie. that no docs can be removed to another jdctn] OR anti-asbestos jmnts. / LOCAL seizure before jmnt/
WORLD WIDE Mireva injs / Pre-Trial Discovery
US / Yes / Yes / Yes / Yes / Yes / No / Yes - but only LOCAL seizure, ie. only if gds are in that jdctn
CL Can / Only in BC, Ont, Que / Yes / Yes (in Ont) / Yes / Yes, due to Hunt / Yes, only in Ont [and Que], to prevent US discovery from running into Can. / Yes; through WORLD WIDE Mireva injunctns / Yes
Que / Yes / Yes, a.3135 / No / Yes / Yes, due to Hunt / Yes, re discovery and re asbestos. / Yes, used to be "saizie conservatoire"; now thru WORLD WIDE Mireva injctns / Yes
Mx / None; Don't exist / No / No / Yes, ie. similar to US full faith / No / Yes, LOCAL seizure - "embargo" / No
- The US position is dif than Can position b/c:
1) b/c of validity of the tests [minimum contact, purposive activity]
[Thus prof would not expect Can defs to succeed as Asahi did on the reasonableness test]
2) b/c of the notion of gen jdctn based on intense business activity - this doesn't exist in Can.
[From just above Oct 4]: Can sue anywhere you want in US.
In US, intense bus activity gives rise to gen jdctn. This is non-existent elsewhere.
That does not mean that that state's law applies. - That is 2nd half of the course.
You get to forum shop in US in ways you don't get to do in Canada.
In US: Due process attaches to jdctn; Full faith attaches to execution.
Pre-Trial Discovery / TrialEng / NO
US / - Need notice pleadings; ie. notificatn
- After notice, can discover any relevant material pre-trial. Not much left for trial.
- Imp of fact pleading. Must get all facts in at discovery, b/c can't raise new things at trial.
- Thus, lawyers know Qs they'll ask at trial. / - Lawyers know Qs they'll ask at trial.
CanCL / Controlled trial: Discovery is limited by pleadings / Controlled trial: Trial is limited by discovery. After pre-trial discovery, you're limited to what you can raise in trial.
Que / Yes, "interogatoire prealable".
Mx / NO discovery. / NO trial. Rather, fact-pleading.
Lawyers only tell judges the facts; judges interpret the law.
ie. Js must investigate the facts to ensure the law is being properly applied.
International judicial collaboration re discovery in N Am:
To what extent does each country provide for their own foreign investigation, ie. investigation abroad? Procedure. / This goes under procedure:Hague convention [of 1968] on getting evidence abroad = Signatories agree to give effect to other signatories' requests for discovery/ ev.
US + Mx are signatories; Can is not! / To what extent is each country willing to aid litigation abroad? = Local assistance.
CL Can / So Canada is not that aggressive; it doesn't seek to use its direct discovery techniques against witnesses. / Not signatory. / - Canada uses blocking statutes.
- Canada still uses discretionary authorization.
Que / Can have pre-trial extra-territorial discovery. / Not signatory.
US / - Direct discovery; blocked by Blocking stats in Canada if used in GF.
- Also, can't do direct discovery of witnesses abroad; must use letters rogatory/ the Hague convention. / Yes, signatory. / Discoverability test; NOT reciprocity.
Mx / - No discovery. Rather, taking of evidence from the party thru judicial interrogation.
- Letters rogatory for witnesses. / Yes, signatory. / - No blocking statutes
- Adheres to Hague Convntn.
Choice of law: Process
Can / Choice of law rules - neutral looking and bilateral.
eg. in tort, either the law where the tort occured forum/ local law. But sometimes you also use methods.
Que / - There are over 100 articles in the CCQ stating choice of law rules in Bk 10. Includes connecting factors.
- But the rules are subject to interest analysis (Choice of law methods), acc to a.3076 CCQ.
US / - Choice of law methods, in principle.
The control is 1) diversity, and 2) constitution
- But look in large measure to rules.
Mx / - Resistant to the application of foreign law, tho they're supposed to be applying it, given NAFTA.
- Until now, choice of law methods. Since NAFTA, choice of law rules are more appropriate. But no one knows what sit in Mx is now.
Choice of law method = to consider the intent of the legislator.
- in the US, this is called Govt Interest Analysis.
It's inaccurate to think that each jdctn only uses one "method".
In both US and Can you really use both methods.
In US, use interest analysis (method) more frequently.
US - in principle int analysis, but look in large measure to rules.
- Choice of law looms large today: which law will guide the issue in a particular case.
- 3 areas of choice of law process as ex: 1) Tort & Delict
2) Contract
3) Security on Movable Property.
- Lex fori rule = your choice of forum law applies to the merits of the case. [Under Tort.]
Tort & DelictCL Canada / - Radical (strict) LLD rule that applies to all tort sits.
Que / - LLD rule, subject to exceptions. [a.3126, 3128]
- Also, no-fault regime, no matter where accident occurred.
US / - Interest analysis, except NY.
- NY has Neumyder rules = apply LLD except in certain circs.
Mx / - Vague LLD rule: don't know if they've ever taken jdctn over a foreign ct and applied law other than their own [the law of the forum.]
- Almost all N Am jdctns end up applying the lex loci delicti in international litigation. So when the case is an int'l case, only b/c of the foreign domicile of one of the parties, that single personal attachment of one of the parties to the lawsuit does not seem to impress courts that they can apply the law other than the lex loci delicti.
Domicile:
- It's harder to change your domicile than your residence.
- When you're born, a domicile immediately attaches to you - that of the parent w/which you are living. This stays w/you til age of maj. Then your domicile may change if you move, w/the intention of living there - that is the domicile then.
- NAFTA necessitated legislative changes. PIL had to be accommodating to dif jdctns and try to arrive at harmonization of N Am law.
1. Introduction: PIL, harmonization of law, & NAFTA: Sept 1
- PIL = re resolution of multi-jdctnal, private law disputes.
- PIL requires us to look at three primary issues:
1) Issues of jdctn - Where to launch suit? Subject matter jdctn AND Territorial/ personal jdctn.
2) Choice of law - dealt with in CCQ bk 10
- as applicable to case resolution (Conflicts of law), by
a) rules
b) methods - this is what the US uses, by interpreting domestic law.
US does not use choice of law rules; only ch of law methods.
3) Recognition of foreign jmnts
- We look at these 3 Qs/ issues, and PIL generally, from a N. Am. perspective (ie. from the perspective of a multi-jdctnal NAFTA law firm) b/c a global perspective is too broad.
- Course objectives:
1)to think like a N. Am lawyer re litigation in N. Am.
2)to address the theoretical questions on how much common law [small 'c'] is required to harmonize N.Am. common law.
Can you have an efficient common market in a nation with diverse laws?
- Today, there is harmonization of law in the world. Law firms are increasingly multi-national. Lawyers must thus often deal with the law of multiple jurisdictions, especially since NAFTA.
- To what extent do the 3 countries work tog to harmonize their laws?
Prof thinks there’s been a great process of informal harmonization in N. Am – Huge change in Canada and Mexico to accommodate NAFTA.
But technically, NAFTA = a very skeletal common market.
NAFTA: 1991- Freedom of mvmnt for gds and investment: Presumes you can have a common market for gds and investment.
- No provision for free flow of persons over the two boundaries [except termporary visas & commercial activity. But no immigration policy, as there is in the EU.]
- Nothing on harmonization of domestic law
- No harmonization of rules re jdctn and jmnt
- Little formal harmonization in NAFTA.
Much informal harmoniztn, esp in Can + Mx. / EU:
- Freedom of mvmnt, gds, investmnt, services.
This includes fr of mobility of professional services.
ie. A lawyer from any EU country can move anywhere in the EU and work immediately. After 3 y there, he can become a lawyer there w/o any exams.
- Yes harmonization of domestic law: Thru European directives.
- Yes harmonization of rules re jdctn and jmnt. Brussels convention created uniform jdctnal laws.
Rome convention created some harmonization of choice of law. States that law applicable to Kual obs is uniform in EU.
- Great formal harmonization and unification in Eur. Some Europeans say you can’t have a common market.
- To make the N Am common market function, N Am lawyers must learn the jdctnal rules of our 3 countries, and work w/them. [See Terr jdctn section - rules?]
- There are far more jdctns in N Am than in the EU.
2. The Legal Professions in Canada and the US: Sept 8
- We study this because:
1) Procedure is governed by the lex fora = law of the forum = jdctn where the litigation occurs.
Thus, the courts have control over the legal profession.
2) The rule in N. Am. is that of diversity of professions, and not harmonization (NAFTA doesn't really affect the professions) so you have to know the rules governing local professions. When firms have cross-jdctn cases, they have to work with local counsel.
Terms for lawyers in North America:
- Canada - barrister & solicitor (Most lawyers are both.)
- Que - avocat OR notary (The notary is an open, liberal profession.)
- US - attorney
- Mex - abogado OR notario (The notary is a closed profession.)
NB: The Mexican notarial profession is dif than in Que, in terms of openness, but they perform similar functions in both places.
There are two models of legal professions in the world:
1) European model - monopolistic, paternalistic, deontological (ethical)
- regulates the profession by way of monopoly, whose purpose is to
a) maintain high standards, and
b) enforce professional or deontological standards: The monopoly allows regulators to inspect offices and regulate conditns of entry + practice.
2) Liberal model - unregulated profession; no monopoly.
- lets everyone in; if you're a bad lawyer, you will get sued and won't survive.
- all you have to do is survive in the marketplace
- Prof thinks the US used to rep this model, but now this model is really moreso Mexican. Developing countries are not in the position of being able to function with model #1. Don’t have the structures to support regulating Bars.
- Rule in the world is more of model #2 – liberal.
- US is in the middle of the two models, tho in some states, it is also model #2 - see below.
- Mx is very liberal. Developing countries can't function in a Monopolistic model.
Entry into the legal profession:
- Canada - university degree 3-4 y
- law school - 3-4 y
- bar school - 8 mos in Que; 4.5 mos in Ont
- articles - 6 mos in Que; up to 1 y in other places.
- Total = 8-9 y.
- US - in some states, no uni is required. Only articles + bar.
- in some states, you DON’T have to belong to a bar at all!!!
- Thus, in some US states, there is the model #2 – very liberal, open.
- Most states – uni degree [4 y] + law school [+ 3y] + bar exam.
- Total = 0-7 y.
- Mexico - reps the model in most of the world.
- need only law degree. (4y) Then you are a licensiado. Then, to become an abogado, you request a permit to practice from the ministry. This is usually granted.
- has a voluntary bar assoc; there is no obligatory bar association there.
- Some countries have many bar associations; no single bar exercising control over its members; the bars compete with one another.
- 900,000 lawyers in US
300,000 lawyers in Mx
60,000 lawyers in Canada. [Sarna says 35,000.]
Professional structures:
- In Mx and Eur, there are certain incompatibilities in the legal profession (=boundaries that certain professions can't cross), which keep people out of certain kind of difficulties and which have deontological objectives:
1) The profession is divided btw lawyers (avocats) and notaries. Can only be one or the other. This is characteristic of the monopolistic profession. No advocate can get into the trouble that a notary gets into, and v.v. Thus, the division is also a deontological division.
2) Professional v. non-professional incompatibility: ie. in some jdctns, don’t need professional qualifications. In most jdctns, you do.
- In Que, these incompatibilities are much diffused.
- The only incompatibilities in N Am that the prof knows of are:
a) Que Code of Ethics, a.4.01.01
b) CBA, Code, Chpt 7 – if you do engage in another profession, can’t allow it to jeopardize your professional confidence.
- N Am - there are no rules of incompatibility really.
ie. there is no rule in N.Am from preventing lawyers from doing what they want to do.
- there are only general rules stating that lawyers can't do anything that will jeopardize their professional practice, ie. must act ethically.
- Conc: - The ethical burden rests on the indiv lawyer in Can and the US.
- No one prevents a lawyer from engaging in other forms of commercial activity (as is the case in the UK). eg. Can practice as both a doctor + a lawyer.
- Thus, when a lawyer gets into difficulty, they individually bear the burden.
- So: What sanctions/disciplinary methods are there against a lawyer who is free to do what he wants? -> See below.
Professional Liability:
Q - What if a lawyer you have hired in another jdctn messes up. To what extent can you sue them for malpractice, and to what amount?
A - Lawyers have unlimited personal liability. Can sue them to any extent, for any amnt. Lawyers are liable for the extent of dmg caused.
- Liability can be - joint = each lawyer is liable for his share, or
- several = can sue any lawyer (in the Pship) for the entire sum.
- joint and several liability = several. Ie. "liabilities are shared collectively and
also individually = all may be sued together and any one may be required to
pay full damages to the injured party." [Spetz]
- If a lawyer functions in a partnership, and his partner is liable, both partners (ie. all partners) have unlimited personal liability. Full resp of lawyer for all dmg caused. This is classic law in all 3 jdctns.
But re liability, procedure and quantum is governed by the lex fori, and this varies greatly in N. Am.